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RULE 5-1.2 TRUST ACCOUNTING RECORDS AND PROCEDURES

5 RULES REGULATING TRUST ACCOUNTS
5-1 GENERALLY

RULE 5-1.2 TRUST ACCOUNTING RECORDS AND PROCEDURES

(a) Applicability. The provisions of these rules apply to all trust funds received or disbursed by members of The Florida Bar in the course of their professional practice of law as members of The Florida Bar except special trust funds received or disbursed by a lawyer as guardian, personal representative, receiver, or in a similar capacity such as trustee under a specific trust document where the trust funds are maintained in a segregated special trust account and not the general trust account and wherein this special trust position has been created, approved, or sanctioned by law or an order of a court that has authority or duty to issue orders pertaining to maintenance of such special trust account. These rules shall apply to matters wherein a choice of laws analysis indicates that such matters are governed by the laws of Florida.

As set forth in this rule, “lawyer” denotes a person who is a member of The Florida Bar or otherwise authorized to practice in any court of the state of Florida. “Law firm” denotes a lawyer or lawyers in a private firm who handle client trust funds.

(b) Minimum Trust Accounting Records. Records may be maintained in their original format or stored in digital media as long as the copies include all data contained in the original documents and may be produced when required. The following are the minimum trust accounting records that shall be maintained:


    (1) a separate bank or savings and loan association account or accounts in the name of the lawyer or law firm and clearly labeled and designated as a "trust account";

    (2) original or clearly legible copies of deposit slips if the copies include all data on the originals and, in the case of currency or coin, an additional cash receipts book, clearly identifying the date and source of all trust funds received and the client or matter for which the funds were received;

    (3) original canceled checks or clearly legible copies of original canceled checks for all funds disbursed from the trust account, all of which must:


      (A) be numbered consecutively

      (B) include all endorsements and all other data and tracking information, and

      (C) clearly identify the client or case by number or name in the memo area of the check;


    (4) other documentary support for all disbursements and transfers from the trust account including records of all electronic transfers from client trust accounts, including:

      (A) the name of the person authorizing the transfer;

      (B) the name of the recipient;

      (C) confirmation from the banking institution confirming the number of the trust account from which money is withdrawn; and

      (D) the date and time the transfer was completed;


    (5) a separate cash receipts and disbursements journal, including columns for receipts, disbursements, transfers, and the account balance, and containing at least:

      (A) the identification of the client or matter for which the funds were received, disbursed, or transferred;

      (B) the date on which all trust funds were received, disbursed, or transferred;

      (C) the check number for all disbursements; and

      (D) the reason for which all trust funds were received, disbursed, or transferred;


    (6) a separate file or ledger with an individual card or page for each client or matter, showing all individual receipts, disbursements, or transfers and any unexpended balance, and containing:

      (A) the identification of the client or matter for which trust funds were received, disbursed, or transferred;

      (B) the date on which all trust funds were received, disbursed, or transferred;

      (C) the check number for all disbursements; and

      (D) the reason for which all trust funds were received, disbursed, or transferred; and


    (7) all bank or savings and loan association statements for all trust accounts.

(c) Minimum Trust Accounting Procedures. The minimum trust accounting procedures that shall be followed by all members of The Florida Bar (when a choice of laws analysis indicates that the laws of Florida apply) who receive or disburse trust money or property are as follows:

    (1) The lawyer shall cause to be made monthly:

      (A) reconciliations of all trust bank or savings and loan association accounts, disclosing the balance per bank, deposits in transit, outstanding checks identified by date and check number, and any other items necessary to reconcile the balance per bank with the balance per the checkbook and the cash receipts and disbursements journal; and

      (B) a comparison between the total of the reconciled balances of all trust accounts and the total of the trust ledger cards or pages, together with specific descriptions of any differences between the 2 totals and reasons therefor.


    (2) At least annually, the lawyer shall prepare a detailed listing identifying the balance of the unexpended trust money held for each client or matter.

    (3) The above reconciliations, comparisons, and listings shall be retained for at least 6 years.

    (4) The lawyer or law firm shall authorize, at the time the account is opened, and request any bank or savings and loan association where the lawyer is a signatory on a trust account to notify Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, in the event the account is overdrawn or any trust check is dishonored or returned due to insufficient funds or uncollected funds, absent bank error.

    (5) The lawyer shall file with The Florida Bar between June 1 and August 15 of each year a trust accounting certificate showing compliance with these rules on a form approved by the board of governors.


(d) Electronic Wire Transfers. Authorized electronic transfers from a lawyer or law firm’s trust account shall be limited to:

    (1) money required to be paid to a client or third party on behalf of a client;

    (2) expenses properly incurred on behalf of a client, such as filing fees or payment to third parties for services rendered in connection with the representation;

    (3) money transferred to the lawyer for fees which are earned in connection with the representation and which are not in dispute; or

    (4) money transferred from one trust account to another trust account.


(e) Record Retention. A lawyer or law firm that receives and disburses client or third-party funds or property shall maintain the records required by this chapter for 6 years subsequent to the final conclusion of each representation in which the trust funds or property were received.

(f) Audits. Any of the following shall be cause for The Florida Bar to order an audit of a trust account:


    (1) failure to file the trust account certificate required by rule 5-1.2(c)(5);

    (2) return of a trust account check for insufficient funds or for uncollected funds, absent bank error;

    (3) filing of a petition for creditor relief on behalf of a lawyer;

    (4) filing of felony charges against a lawyer;

    (5) adjudication of insanity or incompetence or hospitalization of a lawyer under The Florida Mental Health Act;

    (6) filing of a claim against a lawyer with the Clients’ Security Fund;

    (7) when requested by the chair or vice chair of a grievance committee or the board of governors; or

    (8) upon court order; or

    (9) upon entry of an order of disbarment, on consent or otherwise.


(g) Cost of Audit. Audits conducted in any of the circumstances enumerated in this rule shall be at the cost of the lawyer audited only when the audit reveals that the lawyer was not in substantial compliance with the trust accounting requirements. It shall be the obligation of any lawyer who is being audited to produce all records and papers concerning property and funds held in trust and to provide such explanations as may be required for the audit. Records of general accounts are not required to be produced except to verify that trust money has not been deposited thereto. If it has been determined that trust money has been deposited into a general account, all of the transactions pertaining to any firm account will be subject to audit.

(h) Failure to Comply With Subpoena for Trust Accounting Records. Failure of a member to timely produce trust accounting records shall be considered as a matter of contempt and process in the manner provided in subdivision (d) and (f) of rule 3-7.11, Rules Regulating The Florida Bar.


[Revised: 07/01/2012]