Tag Archive for: practice management

Employee vs Contractor

Employee vs. Independent Contractor: Understanding the Key Differences for Law Firms

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In the legal industry, the decision to classify legal professionals as employees or independent contractors can have significant implications for both law firms and the lawyers themselves. This classification affects various aspects, including tax liabilities, benefits, and legal protections. In this post, we will explore the key differences between employees and independent contractors in the context of employing lawyers and provide guidance for law firms to make informed decisions.

The Importance Of Accurate Classification

Proper classification of legal professionals is essential for law firms to avoid potential legal and tax consequences. For example, if a law firm mistakenly classifies a lawyer as an independent contractor when they should be an employee, the firm may face fines and penalties for failing to withhold and pay the appropriate employment taxes. Additionally, the misclassified lawyer may be denied certain legal protections and benefits, such as overtime pay, which could result in lawsuits against the firm.

Misclassification can also have significant consequences for the legal professionals themselves. For instance, an employee misclassified as an independent contractor may be left without access to essential benefits like health insurance and retirement plans, as well as lacking the legal protections afforded to employees, such as anti-discrimination and workplace safety regulations. This not only impacts the individual lawyer but can also damage the reputation of the law firm and potentially affect client relationships.

To avoid these consequences, law firms should consult with legal and financial experts to ensure compliance with federal, state, and local regulations. By conducting regular reviews of their workforce classifications and seeking expert guidance, law firms can minimize the risk of misclassification, maintain compliance, and safeguard their business interests as well as the welfare of their legal professionals.

The Key Differences Between Employees and Independent Contractors

The New York Department of Labor notes that the “courts have found that no single factor or group of factors conclusively define an employer-employee relationship. Rather, all factors are reviewed to determine the degree of supervision, direction and control exercised over the services. Generally, an employer controls what will be done, i.e. the manner, means, and results.” Some of the factors include:

1. Control Over Work

Employees:

  • The law firm has significant control over the work, including the scope of work, hours, and methods employed.
  • Lawyers are typically required to adhere to firm policies and procedures.
  • Law firms are responsible for providing the necessary resources and tools for their employees to perform their work.

Independent Contractors:

  • Lawyers have more control over the work, often choosing their clients, hours, and methods employed.
  • They generally have more flexibility in terms of work arrangements and are not subject to firm policies and procedures.
  • Independent contractors are responsible for providing their tools and resources for their work.

2. Tax Implications

Employees:

  • Law firms are responsible for withholding and paying employment taxes, such as Social Security, Medicare, and federal and state income taxes.
  • Employees are eligible for certain tax deductions and benefits, such as employer-sponsored retirement plans and health insurance.

Independent Contractors:

  • Lawyers are responsible for their own taxes, including self-employment taxes, and must make estimated tax payments throughout the year.
  • Independent contractors may have more opportunities for tax deductions related to their business expenses but may not have access to the same employer-sponsored benefits.

3. Benefits and Protections

Employees:

  • Law firm employees are generally eligible for various benefits, such as health insurance, retirement plans, and paid time off.
  • Employees are protected under federal and state labor laws, including minimum wage, overtime pay, and anti-discrimination protections.

Independent Contractors:

  • Lawyers classified as independent contractors are not eligible for employer-sponsored benefits and must secure their own health insurance and retirement plans.
  • Independent contractors are not covered by most labor laws and may have limited legal protections in comparison to employees.

DOL Factors

According to the New York Department of Labor:

An employer-employee relationship may exist if you:

  • Choose when, where, and how they perform services
  • Provide facilities, equipment, tools, and supplies
  • Directly supervise the services
  • Set the hours of work
  • Require exclusive services (An individual cannot work for your competitors while working for you.)
  • Set the rate of pay
  • Require attendance at meetings and/or training sessions
  • Ask for oral or written reports
  • Reserve the right to review and approve the work product
  • Evaluate job performance
  • Require prior permission for absences
  • Have the right to hire and fire

…

How an individual is compensated is another indicator of worker status. Employees typically are paid a salary, an hourly rate of pay, or a draw against future commissions with no requirement for repayment of unearned commissions. Employees may also receive certain fringe benefits, including an allowance or reimbursement for business or travel expenses.

The nature of the services performed is also key to deciding if a worker is an employee or an independent contractor.

Unskilled or casual workers are usually employees because their labor is often supervised. However, even professionals such as doctors and lawyers, who have much freedom to perform their duties, may be employees if they are subject to significant control.

The courts have also found that workers may be employees and that an employment relationship may exist if the employer controls important aspects of the services performed, other than results and means.

https://dol.ny.gov/independent-contractors

Considerations for Law Firms

When determining whether to classify a lawyer as an employee or independent contractor, law firms should consider the following factors:

  • Degree of control over the work
  • Financial relationship between the firm and the lawyer
  • Nature of the work and its integration with the firm’s core business

It is crucial for law firms to properly classify their legal professionals to avoid potential legal and tax consequences. Misclassification can lead to fines, penalties, and potential lawsuits. Consult with legal and financial experts to ensure compliance with federal, state, and local regulations.

The classification of lawyers as employees or independent contractors plays a significant role in the financial and legal aspects of law firm management. By understanding the key differences and considering the specific circumstances of each legal professional, law firms can make informed decisions that align with their business objectives and comply with applicable regulations.

Please note that the information provided on this website is for general informational purposes only and is not intended as legal or tax advice. The information is subject to change, and it is important to consult a specialist before making any decisions. Law Ledgers provides accounting services to New York lawyers and law firms, including escrow protection, tax advice and bookkeeping administration. Contact us today for personalized support.

Cash Flow Management

Six Tips For Law Firm Cash Flow Management

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Managing cash flow is critical for the success and growth of any business, and law firms are no exception. Ensuring steady revenue streams and maintaining financial stability allows your firm to meet its obligations, invest in growth opportunities, and weather unforeseen challenges. In this post, we’ll explore essential cash flow management strategies tailored for law firms, helping you optimize your financial planning and secure your firm’s future success.

Partnering with outside experts like Law Ledgers can significantly improve your law firm’s cash flow management by leveraging our expertise, allowing you to focus on providing legal services. With in-depth knowledge of accounting principles, best practices, and familiarity with the unique financial challenges faced by law firms, Law Ledgers can implement tailored cash flow management strategies to optimize your firm’s financial performance. Outsourcing your cash flow management not only frees up time for attorneys to focus on billable work and client relations but also streamlines financial processes, reducing the administrative burden on your firm and eliminating the need for costly in-house accounting resources.

1. Accurate Financial Forecasting

  • Analyzing historical financial data
  • Regularly updating financial projections
  • Anticipating potential changes in the market

The foundation of effective cash flow management lies in accurate financial forecasting. Accurate forecasting involves a thorough analysis of your law firm’s historical financial data, including revenue trends, expense patterns, and seasonal fluctuations in demand for legal services. By gaining a comprehensive understanding of your firm’s past performance, you can make informed predictions about future cash inflows and outflows, allowing you to plan proactively and make strategic decisions for the growth of your practice.

Regularly updating financial projections is another crucial aspect of effective cash flow management. As new financial data becomes available, it’s essential to update your forecasts to reflect the most current information. This may include adjusting your revenue and expense projections based on recent client acquisitions, changes in billing rates, or shifts in market conditions. By continually refining your financial forecasts, you can better anticipate potential changes in the market and make timely adjustments to your strategies.

A proactive approach to financial forecasting enables you to stay ahead of potential cash flow issues and maintain financial stability. By closely monitoring your firm’s financial health and using data-driven insights to inform your decision-making, you can identify and address any emerging cash flow challenges before they escalate into more significant problems. This, in turn, helps ensure the long-term success and sustainability of your law practice. In addition, by regularly sharing financial forecasts with your team, you can foster a culture of financial transparency and accountability, empowering everyone to contribute to the firm’s overall financial performance.

2. Timely and Efficient Billing

  • Streamlining the invoicing process
  • Setting clear payment terms and expectations
  • Utilizing technology for billing and collections

Ensuring a steady revenue stream requires a timely and efficient billing process. Streamlining invoicing can be achieved by utilizing technology and setting clear payment terms and expectations with clients from the outset. Embracing modern billing systems and software can automate various aspects of the invoicing process, reducing manual work and the potential for errors. Establishing clear communication with clients about payment expectations helps prevent misunderstandings and fosters a positive working relationship.

Prompt and accurate billing not only improves cash flow but also fosters trust and positive relationships with your clients. When clients receive consistent and accurate invoices, they are more likely to perceive your law firm as professional and reliable. This trust and rapport can lead to long-term client relationships and an enhanced reputation for your firm.

Useful tips for effective billing:

  • Establish a consistent billing schedule to ensure timely invoicing
  • Clearly outline payment terms and conditions in client engagement agreements
  • Provide itemized invoices with detailed descriptions of services rendered
  • Offer various payment options, such as credit card, electronic funds transfer, or online payment portals, to make it convenient for clients to pay
  • Follow up on overdue payments promptly and professionally
  • Regularly review and adjust your billing practices based on client feedback and industry best practices

3. Managing Accounts Receivable

  • Monitoring outstanding invoices
  • Implementing a proactive collection strategy
  • Offering incentives for early payment

Effectively managing accounts receivable is crucial for maintaining a healthy cash flow. Monitor outstanding invoices and implement a proactive collection strategy to minimize overdue payments. Offering incentives for early payment, such as a small discount or flexible payment terms, can encourage clients to settle their accounts promptly.

4. Controlling Overhead Expenses

  • Regularly reviewing and adjusting expenses
  • Implementing cost-saving measures
  • Outsourcing non-core functions

Controlling overhead expenses is an essential aspect of cash flow management. Regularly review and adjust expenses, implementing cost-saving measures where possible. Consider outsourcing non-core functions, such as accounting or IT, to reduce overhead costs and improve efficiency.

5. Maintaining a Cash Reserve

  • Establishing an emergency fund
  • Planning for unexpected expenses
  • Ensuring access to credit or financing options

Establishing a cash reserve can provide a financial safety net for your law firm in times of need. Plan for unexpected expenses by setting aside funds in an emergency account, and ensure access to credit or financing options if required. A cash reserve can offer peace of mind and financial stability in the face of unforeseen challenges.

6. Regular Financial Analysis and Reporting

  • Monitoring key financial metrics
  • Identifying trends and potential issues
  • Adjusting strategies based on data-driven insights

Regular financial analysis and reporting enable you to monitor key financial metrics and identify trends and potential issues. By adjusting strategies based on data-driven insights, you can optimize cash flow management and drive your law firm’s growth and success.

Effective cash flow management is crucial for law firms looking to thrive in an increasingly competitive market. By implementing these strategies, you can ensure steady revenue streams and maintain financial stability, positioning your firm for continued success. If you’re seeking expert guidance on cash flow management tailored to the unique needs of your legal practice, our team at Law Ledgers is here to help. Contact us today for personalized support and solutions.

Please note that the information provided on this website is for general informational purposes only and is not intended as legal or tax advice. The information is subject to change, and it is important to consult a specialist before making any decisions. Law Ledgers provides accounting services to New York lawyers and law firms, including escrow protection, tax advice and bookkeeping administration. Contact us today for personalized support.

Imbalances in Escrow Accounts

Tackling Imbalances in Multi-Year Escrow Reconciliation

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Expert Solutions for Navigating the Challenges of Escrow Account Discrepancies

At Law Ledgers, we understand the unique financial challenges that legal professionals face, particularly when managing client funds in escrow accounts. One such challenge is the reconciliation of multi-year escrow accounts when the balance is off. In this post, we will explore the complications associated with escrow account imbalances and share effective strategies to resolve these issues with minimal disruption to your legal practice.

Identifying the Root Cause of the Escrow Account Imbalance

  • Misallocated funds
  • Clerical errors
  • Unauthorized transactions

The first step in resolving an escrow account imbalance is identifying the root cause of the discrepancy. Identifying the source of the problem is crucial, as it determines the appropriate corrective action and helps prevent future occurrences. One of the most common causes of discrepancies is misallocated funds. This issue can arise when funds are inadvertently deposited into the wrong account or allocated to the wrong client. For example, an attorney may mistakenly deposit funds intended for Client A into Client B’s account, creating a discrepancy in both clients’ balances. In such cases, it’s essential to review all deposit and disbursement transactions to ensure the funds are correctly assigned to the respective clients.

Another prevalent cause of escrow account imbalances is clerical errors. These mistakes can range from simple data entry errors, such as transposing digits or omitting decimal points, to more complex issues like double-posting transactions or failing to record a transaction altogether. When reviewing your account records, pay close attention to the details of each transaction, including dates, amounts, and descriptions. It’s also essential to cross-reference your records with bank statements to identify any discrepancies that may have resulted from miscommunication between the bank and your office. Under the New York Rules of Professional Conduct, Rule 1.15 mandates that attorneys maintain complete and accurate records of client property and perform regular reconciliations.

Unauthorized transactions are another potential cause of escrow account imbalances. These transactions can occur due to fraudulent activities, such as identity theft, embezzlement, or phishing scams, which could lead to unauthorized withdrawals or deposits. To detect and prevent unauthorized transactions, it’s crucial to have stringent security measures in place, such as strong passwords, multi-factor authentication, and regular monitoring of account activity. If you discover an unauthorized transaction, it’s essential to report the issue to the bank and relevant authorities promptly.

Implementing Systematic Escrow Account Reconciliation Processes

  • Periodic account reconciliation
  • Utilizing accounting software
  • Segregating duties

To prevent future imbalances, it’s essential to establish a systematic reconciliation process. This includes conducting periodic escrow account reconciliations, working with accounting professionals to automate the process, and segregating duties to ensure checks and balances. These practices can help identify potential discrepancies early on, preventing them from snowballing into more significant issues over time.

Multi-Year Escrow Reconciliation
By meticulously reviewing your account records and being mindful of the common causes of discrepancies, you can pinpoint the source of the error and take corrective action.

Engaging Expert Assistance

  • Enlisting a professional accountant
  • Consultation and advisory services
  • Compliance with legal and ethical obligations

In complex cases, enlisting the help of a professional accountant, like our team at Law Ledgers, can be invaluable. Our expert consultation and advisory services will ensure that your escrow accounts are reconciled accurately, while also ensuring compliance with legal and ethical obligations. With our specialized knowledge of the legal industry, we can offer tailored solutions to address the specific needs of your practice.

Establishing Clear Communication Channels

  • Communicating with clients
  • Transparency and trust
  • Proactive problem-solving

Another crucial aspect of resolving escrow account reconciliation imbalances is clear communication with your clients. By being transparent about any discrepancies and proactively addressing their concerns, you can maintain trust and effectively resolve issues as they arise.

Adopting Preventative Measures

  • Regular training and education
  • Robust internal controls
  • Continuous improvement

Lastly, adopting preventative measures can help mitigate the risk of future escrow account imbalances. This includes providing regular training and education for your team, implementing robust internal controls, and fostering a culture of continuous improvement. By taking a proactive approach, you can minimize the likelihood of encountering multi-year escrow reconciliation complications in the future.

At Law Ledgers, we understand the importance of accurate escrow account management for legal professionals. Our team is dedicated to helping you navigate the complexities of multi-year escrow reconciliation, ensuring that your accounts are always balanced and compliant with industry regulations. If you’re struggling with escrow account imbalances or need assistance in implementing best practices, contact our team of experts today for personalized guidance and support.

Avoiding Counterfits

Identifying and Avoiding The Counterfeit Check Scam

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The legal community is not immune to the ever-present threat of fraud, and lawyers must remain vigilant in identifying and avoiding transactions that may involve counterfeit checks. This is the key message of the 2021 Formal Ethics Opinion 2 from the North Carolina State Bar, which discussed a lawyer’s professional responsibility to safeguard entrusted funds.

The fraudulent use of counterfeit checks is not a new issue facing the legal community, and state and federal agencies have issued warnings to the public about the existence and persistence of these scams. National and state bar associations, regulatory bodies, and malpractice carriers have also reported on the prevalence of such scams, which frequently target members of the legal profession.

Thus, lawyers must be alert to the potential for fraud in both the representation and the receipt and disbursement of funds. They have a professional responsibility to investigate and verify the authenticity of transactions, especially those involving unfamiliar or out-of-country entities, to safeguard the entrusted funds of their clients. By remaining vigilant and taking the necessary precautions, lawyers can help protect themselves and their clients from falling prey to counterfeit check scams.

What is a Counterfeit Check Scam?

A counterfeit check scam is a common form of fraud that has been around for a long time. In a typical scenario, a scammer sends a fake check to an unsuspecting lawyer, usually for an amount that is much higher than what the victim is expecting. The scammer then asks the lawyer to deposit the check and send back the excess funds. The check bounces, and the lawyer is left with no funds and, in some cases, may even face legal repercussions.

Counterfeit check scams can have devastating effects on law firms, as they can result in significant financial losses and damage to the firm’s reputation. Some examples of how counterfeit check scams can specifically impact law firms include:

  • Law firms may be targeted by scammers posing as potential clients, who send fake checks as retainers for legal services. The scammer will then ask the firm to wire a portion of the funds back to them, leaving the firm responsible for repaying the bank the full amount of the fake check.
  • Scammers may target law firms that handle large financial transactions, such as real estate closings, by sending fake checks to cover the closing costs. The firm may then be asked to wire a portion of the funds back to the scammer, leaving the firm liable for the full amount of the fake check.
  • Law firms may also be targeted by scammers posing as vendors or service providers, who send fake checks as payment for services rendered. The scammer will then ask the firm to wire a portion of the funds back to them, leaving the firm responsible for repaying the bank the full amount of the fake check.

For example, the New York City Bar Association’s Formal Opinion 2015-3: Lawyers Who Fall Victim to Internet Scams discussed an example of a “typical scam”:

A common example of the internet-based scam begins with an email from an individual requesting assistance with an urgent transactional or litigation matter (the “email sender”). This email sender is generally located abroad, whereas the counterparty or adversary is usually located in the attorney’s jurisdiction. The email sender often proposes a contingency fee arrangement whereby the attorney would receive a percentage of the transaction total or litigation settlement.  If the attorney sends a draft engagement letter, the email sender swiftly executes it. Soon thereafter, the email sender notifies the attorney that transaction has been consummated or the litigation has settled. As a result, the attorney performs little or no work before the engagement ends.

The attorney receives the closing or settlement check quickly. The attorney then deposits the check in the law firm’s trust account and, once the check has “cleared,” the attorney transfers his contingent fee into his operating account and wires the remainder of the funds to a foreign bank account designated by the email sender. Unfortunately, the attorney might not realize that a bank can “clear” a check and make the funds available before the bank actually collects the funds. The bank may take weeks or even months to discover that the check is fraudulent. When that happens, the bank will notify the attorney that the check was fraudulent.

If the trust account contains the funds of other clients, then those clients may be harmed because the bank may use those funds to cover all or part of the wire transfer.  If the trust account contains no other client funds (or if the client funds are insufficient to cover the full amount of the wire transfer), then the bank will notify the attorney that his trust account is overdrawn, and will look to the attorney or the law firm to make up the deficiency. 

In order to protect themselves from counterfeit check scams, law firms should take steps such as verifying the legitimacy of clients and vendors, being cautious of unsolicited offers, and thoroughly examining any checks received before depositing them.

A Lawyer’s Responsibility in Identifying and Avoiding Counterfeit Checks

As a lawyer, you have a duty of competency and diligence in representing your clients. This means that you must have the necessary legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. You are also required to keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology relevant to your practice, engage in continuing study and education, and comply with all continuing legal education requirements to which you are subject.

The recent ethics opinion issued by the North Carolina State Bar highlights a lawyer’s responsibility in identifying and avoiding counterfeit checks. The opinion addresses a scenario where a lawyer received a cashier’s check from a third party drawn on an out-of-country bank without investigating the authenticity of the check.

Specifically, the opinion addressed a situation where a lawyer received an unsolicited communication from a client seeking to collect debt from a third party. Despite not soliciting the client’s business, the lawyer agreed to file a lawsuit against the third party based on the documentation provided. Shortly thereafter, the third party reached out to the lawyer and expressed a desire to pay the debt without litigation. The lawyer subsequently received a cashier’s check from the third party, which was drawn on a foreign bank and dated prior to the earlier conversation. However, the lawyer did not investigate the authenticity of the check, nor did they conduct any further investigation into the third party.

The North Carolina State Bar’s opinion finds that the lawyer’s failure to investigate the foreign bank cashier’s check was a violation of their duties of competence and diligence under the Rules 1.1 and 1.3 of the Rules of Professional Conduct. A lawyer’s duty of competency requires them to possess the necessary legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Comment 8 to Rule 1.1 further emphasizes the importance of keeping abreast of changes in the law and its practice, including the benefits and risks associated with technology relevant to the lawyer’s practice.

How to Avoid Falling Victim to a Counterfeit Check Scam

Generally, to avoid falling victim to a counterfeit check scam, there are several steps that you can take:

  1. Be cautious of unsolicited communications from potential clients.
  2. Conduct thorough investigations of potential clients and third parties.
  3. Verify the authenticity of any cashier’s checks, particularly those drawn on out-of-country banks.
  4. If you suspect that you have received a counterfeit check, contact your bank immediately.
  5. Report any suspected fraudulent activity to the appropriate authorities, including your state bar association.

Watch Out For Red Flags

    More specifically, the New York City Bar Opinion notes that lawyers should be on alert for certain “red flags” that may signal fraud, such as:

    • The email sender is based abroad.
    • The email sender does not provide a referral source. (If the email sender is asked how he found the firm, he may respond that it was through an online search. If prospective clients rarely approach the recipient attorney based on an Internet search, this should be an immediate red flag.) 
    • The initial email does not identify the law firm or recipient attorney by name, instead using a salutation such as “Dear barrister/solicitor/counselor.”
    • The email uses awkward phrasing or poor grammar, suggesting that is was written by someone with poor English or was converted into English via a translation tool.
    • The email is sent to “undisclosed recipients,” suggesting that it is directed to multiple recipients. (Alternatively, the attorney recipient may be blind copied on the email.)
    • The email requests assistance on a legal matter in an area of law the recipient attorney does not practice.
    • The email is vague in other respects, such as stating that the sender has a matter in the attorney’s “jurisdiction,” rather than specifying the jurisdiction itself.
    • The email sender suggests that for this particular matter the attorney accept a contingency fee arrangement, even though that might not be customary for the attorney’s practice.
    • The email sender is quick to sign a retainer agreement, without negotiating over the attorney’s fee (since the fee is illusory anyway).
    • The email sender assures the attorney that the matter will resolve quickly.
    • The counterparty, if there is one, will also likely respond quickly, settling the dispute or closing the deal with little or no negotiation.
    • The email sender insists that his funds must be wired to a foreign bank account as soon as the check has cleared. (The sender often claims that there is an emergency requiring the immediate release of the funds.)
    • The email sender or counterparty sends a supposed closing payment or settlement check within a few days. The check is typically a certified check or a cashier’s check, often from a bank located outside of the attorney’s jurisdiction.

    As a lawyer, you have a professional responsibility to safeguard entrusted funds by identifying and avoiding purported transactions involving counterfeit checks. This is a critical part of your duty of competency and diligence in representing your clients. By staying informed about the risks of counterfeit check scams and taking appropriate precautions, you can protect your clients, your reputation, and your practice’s financial health.

    Please note that the information provided on this website is for general informational purposes only and is not intended as legal or tax advice. The information is subject to change, and it is important to consult a specialist before making any decisions. Law Ledgers provides accounting services to New York lawyers and law firms, including escrow protection, tax advice and bookkeeping administration. Contact us today for personalized support.

    Delegating Authority

    Can A Lawyer Delegate The Authority To Sign Escrow Checks?

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    The question of whether an attorney is permitted to delegate the responsibility of signing escrow checks to a bookkeeper is a complex one. On one hand, attorneys have a professional obligation to ensure that they exercise due diligence and maintain a high standard of care when it comes to the management of client funds. On the other hand, attorneys are also allowed to delegate certain responsibilities to other professionals, such as bookkeepers.

    The short answer is “yes,” an attorney is permitted to delegate the responsibility of signing escrow checks to a bookkeeper in appropriate circumstances, such as where an authorized signatory who is a New York lawyer personally reviews and approves the issuance of the check with their digitized signature.

    Ethics Opinions

    In 1997, the New York State Bar Association issued Opinion 693, which expressed the view that a “lawyer may allow a paralegal to use a signature stamp to execute escrow checks from a client trust account so long as the lawyer supervises the delegated work closely as provided in this Opinion and exercises complete professional responsibility for the acts of the paralegal.” The Opinion explained:

    Although it is clear that only a lawyer may control the lawyer’s client escrow account and be a signatory of it, the Rule does not address whether a lawyer may delegate the task of signing his or her name to escrow account checks to others, and if so whether a signature stamp can be used for that purpose. Based on the analysis of proper delegation in our previous opinions, we believe that it is ethically permissible for a lawyer to authorize a paralegal to make use of the lawyer’s signature stamp on checks drawn from a special account at closings under certain conditions and with proper controls. As with the rest of a paralegal’s duties at a real estate closing, N.Y. State 677, the lawyer must consider in advance how the paralegal will use the signature stamp – including approving the purpose of the anticipated payments to be made by such checks, the nature of the payee and the authorized dollar amount range for each check to be issued – and review afterwards what actually happened to assure that the delegation of authority has been utilized properly. As a practical matter, compliance with these restrictions will limit the use of the signature stamp by a paralegal to those circumstances in which the lawyer can reliably forecast events at the closing. Attorneys must be aware that responsibility for client funds may not be delegated, and attorneys authorizing paralegals to use signature stamps on checks drawn from escrow accounts are “completely responsible” to the client for any errors or misuse of the stamp.   N.Y. State 677; DR 1-104.   Attorneys must take steps to safeguard the use of the signature stamp to avoid any misappropriation of client funds.

    NYSBA Opinion 693

    In Opinion 1114 (2/9/17), the New York State Bar Association expressed the view that attorneys may electronically sign checks issued from their law firm’s “special,” trust or  IOLA account, provided that an authorized signatory who is a New York lawyer personally reviews and approves the issuance of the check with his or her digitized signature. The opinion addresses several questions:

    • Can a law firm utilize digitized signatures on checks issued from its IOLA account instead of manual signatures?
    • Can the approval process for checks issued from the law firm’s IOLA account use a batch process to authorize digitized signatures?
    • Does Rule 1.15(e) of the New York Rules of Professional Conduct specify how a trust or special account check may be signed?
    • What is encompassed by the term “signatory” in Rule 1.15(e)?
    • Can the use of digitized signatures on checks issued from a law firm’s IOLA account comply with the fiduciary obligation that attorneys have with respect to client funds?

    In relevant part, Opinion 1114 explained:

    8. Rule 1.15(e) in New York provides that only a New York attorney may be an authorized signatory, but it does not specify how a trust or special account check may be signed.  Rule 1.0(x) defines what constitutes a writing for purposes of Rules that require the client’s written consent.  It was amended effective January 1, 2017 to include electronic records within the meaning of a writing. As amended, Rule 1.0(x) provides: “A ‘signed’ writing includes an electronic . . . process attached to . . . a writing and executed or adopted by a person with the intent to sign the writing.”  (Emphasis added.) As the New York State Bar Association’s Committee on Standards of Professional Conduct (“COSAC”) explained when it proposed this change, “COSAC recommends clarifying the definition of ‘writing’ to make clear that it encompasses evolving forms of electronic communications.”  However, the term we must interpret here is not “writing” but “signatory.”  Consequently, the recent amendment is instructive but not dispositive.

    9. In N.Y. State 693 (1997), this Committee stated that it was permissible for a lawyer, as part of a real estate closing, to delegate to a paralegal the task of signing the lawyer’s name on an escrow account check utilizing a rubber stamp, as long as the lawyer supervised the delegated work closely.  The rationale underpinning that opinion was that it was the attorney, not the paralegal, who ultimately approved the transaction – the attorney was merely delegating the task of affixing the signature for a discrete and limited purpose.

    10. Here, no delegation would be involved. Therefore, if the law firm’s procedures for authorizing checks from the special or trust account and for affixing the digitized signature of each authorized signatory assure that only an authorized signatory or signatories may initiate these steps, and if using the MICR signature renders the check negotiable within the meaning of banking laws and regulations, then Rule 1.15 neither requires a law firm to use a “wet ink signature” nor prohibits a law firm from using electronic or digitized signature media such one affixed by an MICR printer.

    11. The law firm also must ensure that the electronically-generated records of the special or trust account are maintained in accordance with Rule 1.15(d).

    NYSBA Opinion 1114

    ABA Guidelines

    The ABA Model Guidelines on Paralegal Services do not prohibit delegation of accounting-related work:

    GUIDELINE 2: Provided the lawyer maintains responsibility for the work product, a lawyer may delegate to a paralegal any task normally performed by the lawyer except those tasks proscribed to a nonlawyer by statute, court rule, administrative
    rule or regulation, controlling authority, the applicable rule of professional conduct of the jurisdiction in which the lawyer practices, or these guidelines.

    GUIDELINE 3: A lawyer may not delegate to a paralegal:

    (a) Responsibility for establishing an attorney-client relationship.
    (b) Responsibility for establishing the amount of a fee to be charged
    for a legal service.
    (c) Responsibility for a legal opinion rendered to a client.

    ABA Guidelines

    Separately, the ABA has maintained certain Guidelines for client trust account recordkeeping in an effort to keep pace with the electronic revolution in the banking industry. The Model Rules for Client Trust Account Records replace the Model Rule on Financial Recordkeeping that had been in place since 1993. The new rules provide comprehensive guidelines for lawyers, which accommodate current standards of practice while continuing to protect the interests of clients. The Model Rules address general record-keeping requirements for all lawyers holding client funds and outline specific record-keeping requirements for electronic transfer of funds. The new rules also cover trust account safeguards and the availability of records, noting, among other things, that:

    • Electronic banking transactions must be supported by an electronic recordkeeping system that accurately and reliably tracks all transactions in the client trust account.
    • The system must have adequate security measures in place to ensure the confidentiality, integrity, and availability of electronic records.
    • The system must be capable of generating a report that provides a clear and accurate description of each transaction, including the date, amount, payee, and client matter number.
    • The report must be reconciled with the bank statement on a monthly basis to ensure that all transactions have been accurately recorded.
    • Any discrepancies or errors must be promptly identified and resolved.
    • The system must provide a clear audit trail that allows for the reconstruction of each transaction from its inception to its final disposition.
    • The system must be able to generate a list of all outstanding checks and deposits to facilitate the monthly reconciliation process.
    • The system must be able to generate a report that provides a current balance of the client trust account and a list of all client trust balances.
    • The system must be able to generate a report that identifies all transactions in excess of a predetermined threshold.
    • The system must have backup and recovery procedures in place to ensure that electronic records are not lost or destroyed in the event of a system failure or other disaster.

    There Are Hard Limits To Delegation

    Despite the various guidance, courts have disciplined lawyers who have excessively delegated authority to staff. For example:

    • Matter of Rozenzaft, 143 AD3d 65, 69 (2d Dept. 2016) – “More specifically, he allowed his two paralegals to conduct hundreds of real estate closings, without his supervision, and went so far as to allow them to use his signature stamp and/or sign his name on real estate documents and to issue checks from his operating and escrow accounts.”
    • Matter of Brown, 133 AD3d 7, 9 (1st Dept. 2015) – “By making her accountant, a nonattorney, an authorized signatory on the escrow account, respondent violated rule 1.15 (e), and we therefore confirm the Hearing Panel’s recommendation that we sustain charge two.”
    • Matter of Kaplan, 113 AD3d 184, 185 (1st Dept. 2013) – “allowing his nonlawyer spouse to be a signatory on his IOLA account in violation of rule 1.15”
    • Matter of Shtindler, 106 AD3d 173, 176 (2d Dept 2013) – “Charge six alleges that the respondent failed to adequately supervise her paralegal, in violation of former Code of Professional Responsibility DR 1-104 (c) and DR 1-102 (a) (7) (22 NYCRR 1200.5 [c]; 1200.3 [a] [7]). From January 2007 through 2008, the respondent authorized her paralegal to issue and sign checks from her escrow account. The respondent failed to review all of the checks that the paralegal issued from her escrow account. On January 10, 2007, the respondent delegated her attendance at the Sery closing to the paralegal. After the closing, the respondent failed to review the documents and checks that the paralegal prepared, as well as the records from the transaction.”

    Please note that the information provided on this website is for general informational purposes only and is not intended as legal or tax advice. The information is subject to change, and it is important to consult a specialist before making any decisions. Law Ledgers provides accounting services to New York lawyers and law firms, including escrow protection, tax advice and bookkeeping administration. Contact us today for personalized support.