Bar News - June 17, 2015
Attorney Discipline Office to Receive IOLTA Alerts
Amended Supreme Court Rule 50(1)(c) requires lawyers to inform the institutions holding their IOLTA accounts to add the following address for overdraft notifications:
New Hampshire Supreme Court
Attorney Discipline Office
4 Chenell Drive, Suite 102
Concord, NH 03301
Under an amended court rule taking effect July 1, financial institutions will be reporting any checks returned for insufficient funds or negative balances in IOLTA accounts directly to the Attorney Discipline Office.
The NH Supreme Court last month adopted an amendment to Rule 50(1)(C) governing lawyers’ trust accounts, requiring lawyers to direct their depository institutions to notify the disciplinary office “whenever a trust account contains insufficient funds or shows a negative balance. Such notice shall be a duplicate of the standard depository institution notice provided to the customer.”
The NH Bar Foundation is contacting all of the participating institutions in the New Hampshire IOLTA program to notify them of this new rule, and is modifying IOLTA authorization forms for new accounts to include this requirement.
Starting next month, attorneys are required to contact the institutions that hold their IOLTA accounts to ensure that the banks or credit unions have put in place provisions to provide notice to the ADO, as well as to the attorneys and law firms that opened the accounts.
The rule change, advocated by the Attorney Discipline Office, is intended as a preventive measure to alert discipline authorities to potential problems. Janet DeVito, ADO general counsel, said that while attorneys are obligated to – and do – self-report overdrafts in IOLTA accounts, the automatic overdraft notification provides an additional measure of protection, and is a rule in many other jurisdictions. In checking with other states with automatic notification, DeVito said her counterparts report the rate of overdraft reporting by banks is higher than self-reporting alone, but will not likely pose a significant increase in workload for the financial institutions.
Overdraft reports from financial institutions, as happens currently with self-reports, will be reviewed by the ADO. Depending on the nature and extent of the overdraft, the ADO could simply ask for an explanation, including documentation, from the attorney, or could open a file for more in-depth investigation, DeVito said.
The overdraft rule was one of only a few to be enacted from a list of recommendations for changes in attorney regulation by an ABA committee that reviewed New Hampshire’s discipline system and court rules in 2012. The NH Bar Association, the ADO, and the Supreme Court reviewed the ABA panel’s report and concluded that most of the other changes were impractical or unneeded in New Hampshire.
As the overdraft rule went through the drafting process by the NH Supreme Court Advisory Committee on Rules, concerns were raised by the banking community that overdraft reporting could create a liability for financial institutions. Language was added that clarifies that “it is not the intention of this requirement to create any direct or third-party beneficiary rights.”
The interest on pooled IOLTA accounts is conveyed to the NH Bar Foundation, a 501(c)(3) charitable organization which makes grants for civil legal services for the disadvantaged and law-related education in New Hampshire. Since the program began in New Hampshire in 1992 - the second such program to become operational in the US - more than $31 million in grants have been made. IOLTA programs exist in all 50 states and participation by attorneys licensed in New Hampshire is mandatory unless exempt under Rule 50(1)(F).