职业行为准则

规则1.15:财产保管

(a) A lawyer shall hold property of clients or third persons that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds of clients or third persons that are in the lawyer’s possession (trust funds) shall be kept in one or more trust accounts maintained in accordance with paragraph (b). 其他财产也应予以标识并予以适当保护. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

(b) All trust funds shall be deposited with an “approved depository” as that term is defined in Rule XI 《哥伦比亚特区澳门赌场官网规则. 名义上的或预计在短期内持有的信托基金, and as such would not be expected to earn income for a client or third-party in excess of the costs incurred to secure such income, shall be held at an approved depository and in compliance with the District of Columbia’s Interest on Lawyers Trust Account (DC IOLTA) program. The title on each DC IOLTA account shall include the name of the lawyer or law firm that controls the account, 以及“DC IOLTA帐户”或“IOLTA帐户”.” The title on all other trust accounts shall include the name of the lawyer or law firm that controls the account, 以及“信托账户”或“托管账户”.” The requirements of this paragraph (b) shall not apply when a lawyer is otherwise compliant with the contrary mandates of a tribunal; or when the lawyer is participating in, 并且符合, the trust accounting rules and the IOLTA program of the jurisdiction in which the lawyer is licensed and principally practices.

(c) Upon receiving funds or other property in which a client or third person has an interest, 澳门赌场官网应当及时通知委托人或者第三人. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, 应客户或第三方要求, 应立即就该等财产作出全面核算, 受规则1约束.6.

(d) When in the course of representation a lawyer is in possession of property in which interests are claimed by the lawyer and another person, 或者由澳门赌场官网可能对其负有义务的两个或两个以上的人, the property shall be kept separate by the lawyer until there is an accounting and severance of interests in the property. If a dispute arises concerning the respective interests among persons claiming an interest in such property, the undisputed portion shall be distributed and the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. Any funds in dispute shall be deposited in a separate account meeting the requirements of paragraph (a) and (b).

(e) Advances of unearned fees and unincurred costs shall be treated as property of the client pursuant to paragraph (a) until earned or incurred unless the client gives informed consent to a different arrangement. 不管是否提供了这种同意，规则1.16(d) applies to require the return to the client of any unearned portion of advanced legal fees and unincurred costs at the termination of the lawyer’s services in accordance with 规则1.16(d).

(f) Nothing in this rule shall prohibit a lawyer from placing a small amount of the lawyer’s funds into a trust account for the sole purpose of defraying bank charges that may be made against that account.

评论

[1] A lawyer should hold property of others with the care required of a professional fiduciary. 有价证券应当存放在保险箱里, 特殊情况下需要以其他方式保管的除外. All property that is the property of clients or third persons should be kept separate from the lawyer’s business and personal property and, 如果款项, in one or more trust accounts maintained with financial institutions meeting the requirements of this rule. 这条规则, 除此之外, sets forth the longstanding prohibitions of the misappropriation of entrusted funds and the commingling of entrusted funds with the lawyer’s property. 这条规则还要求澳门赌场官网保护客户的“其他财产”, 其中可能包括客户端文件. 关于关闭客户文件处理的指导，见D.C. 澳门赌场官网公会法律道德委员会意见第1号. 283.

[2]规则1 (a)款.第15条要求澳门赌场官网保留“[客户]资金和财产的完整记录”. . . .D.C. 上诉法院在in re cloer, 831 A中讨论了“完整记录”的含义.2d 1030, 1034 (D.C. 2003): "The 职业行为准则 should be interpreted with reference to their purposes. The purpose of maintaining 'complete records' is so that the documentary record itself tells the full story of how the attorney handled client or third-party funds and whether the attorney complied with his fiduciary obligation that client or third-party funds not be misappropriated or commingled. Financial records are complete only when documents sufficient to demonstrate an attorney's compliance with his ethical duties are maintained. The reason for requiring complete records is so that any audit of the attorney's handling of client funds by Disciplinary Counsel can be completed even if the attorney or the client, 或两个, 是不可用的.规则1.15 requires that lawyers maintain records such that ownership or any other question about client funds can be answered without assistance from the lawyer or the lawyer's clients. 实现这一结果的精确记录显然是不同的, but lawyers may wish to look for guidance on records from the 2010 ABA Model 规则 For Client Trust Account Records.

[3]第(a)款涉及由“陈述”产生的信托基金.” The obligations of a lawyer under this rule are independent of those arising from activity other than rendering legal services. 例如, a lawyer who serves as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction. Separate trust accounts may be warranted when administering estate monies or acting in similar fiduciary capacities.

[4] Paragraph (b) mandates where trust deposits shall be held and further mandates participation in the District of Columbia’s IOLTA program. This paragraph is intended to reach every lawyer who is admitted in this jurisdiction regardless of where the lawyer practices, 除非有规定的例外情况. 因此, a lawyer should follow the contrary mandates of a tribunal regarding deposits that are subject to that tribunal’s oversight. 类似的, if the lawyer principally practices in a foreign jurisdiction in which the lawyer is also licensed, and the lawyer maintains trust accounts compliant with that foreign jurisdiction’s trust accounting rules, the lawyer may deposit trust funds to an approved depository or to a banking institution acceptable to that foreign jurisdiction. 最后, a lawyer is not obligated to participate in the District of Columbia IOLTA program if the lawyer is participating in, 并且符合, the IOLTA program in the jurisdiction in which the lawyer is licensed and principally practices. IOLTA programs are known by different names or acronyms in some jurisdictions; this rule and its exceptions apply to all such programs, 然而命名. 这条规则 anticipates that a law firm with lawyers admitted to practice in the District of Columbia may be obligated to maintain accounts compliant with the IOLTA rules of other jurisdictions where firm lawyers principally practice. A lawyer who is not participating in the IOLTA program of the jurisdiction in which the lawyer principally practices because the lawyer has exercised a right to opt out of, 或者不选择加入, 司法管辖区的IOLTA项目, 或者是因为该司法管辖区没有IOLTA项目, shall not thereby be excused from participating in the District of Columbia’s IOLTA program. (b)款不能解决多司法管辖区冲突的情况，见规则8.5. Nothing in this rule is intended to limit the power of any tribunal to direct a lawyer in connection with a pending matter, 包括一名执业澳门赌场官网, 按照法庭的指示持有信托基金. For a list of approved depositories and additional information regarding DC IOLTA program compliance, 参见规则十一, 20节, 《哥伦比亚特区澳门赌场官网规则, 和D.C. 澳门赌场官网基金会网站 www.dcbarfoundation.org.

[5]规则1的例外.15(b) requires a lawyer to make a good faith determination of the jurisdiction in which the lawyer principally practices. “主要执业”一词指的是澳门赌场官网个人的行为, not to the principal place of practice of his or her law firm (which might yield a different result for a lawyer with partners). 就本条而言, an individual lawyer principally practices in the jurisdiction where the lawyer is licensed and generates the clear majority of his or her income. 如果没有这样的管辖权, then a lawyer should identify the physical location of the office where the lawyer devotes the largest portion of his or her time. 无论如何, the initial good faith determination of where the lawyer principally practices should be changed only if the lawyer’s circumstances change significantly and the change is expected to continue indefinitely.

[6]判定, 根据(b)段, 是否期望信托基金赚取超过成本的收益, 取决于澳门赌场官网的正确判断. The lawyer should review trust practices at reasonable intervals to determine whether circumstances require further action with respect to the funds of any client or third party. 因为(b)款是澳门赌场官网特有的义务, this rule anticipates that a law firm may be obligated to maintain accounts compliant with the IOLTA rules of other jurisdictions, to the extent the lawyers in that firm do not all principally practice in the District of Columbia.

[7] Paragraphs (c) and (d) recognize that lawyers often receive funds from third parties from which the lawyer’s fee will be paid. The lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed. 然而, a lawyer may not hold funds to coerce a client into accepting the lawyer’s contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for prompt resolution of the dispute, 比如仲裁. 无可争议的那部分资金应迅速分配.

[8]第三方, 比如客户的债权人, 可能只是对澳门赌场官网保管的资金或其他财产提出索赔. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, 并有权拒绝将财产交给委托人. 然而, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party. 看到维.C. 澳门赌场官网协会法律道德委员会意见293.

[9] Paragraph (e) permits advances against unearned fees and unincurred costs to be treated as either the property of the client or the property of the lawyer, 但没有得到客户对其他安排的知情同意, 该规则的默认立场是，此类预付款应被视为客户的财产, 受(a)段规定的限制. 无论如何, 在约定终止时, advances against fees that have not been incurred must be returned to the client as provided in 规则1.16(d). 关于“知情同意”的定义，见规则1.0(e).

[10]关于构成证据的财产, 如犯罪的工具或收益, 见规则3.4(a).