Legal Ethics Opinion No. 1372

  Trust Account--Commingling: Circumstances Under Which Attorney
Would Not Be Required To Maintain Open Client Trust Account  

You have advised that there has been no transaction in your
"attorney's" account, presumably your trust account, for the past
five years.  You further indicate that your practice is confined
to estate work and you only have client's money in your
possession when you are the fiduciary in an estate.  In those
cases, you open a separate account to accommodate those funds.

You have asked the committee to consider whether it is necessary
for you to maintain an open trust account in view of the
circumstances in which you operate.

The appropriate and controlling disciplinary rule is DR 9-l02(A)
which requires in pertinent part that

     All funds of clients paid to a lawyer..., other than
     advances for costs and expenses, shall be deposited in one
     or more identifiable bank accounts...and no funds belonging
     to the lawyer...shall be deposited therein except as

     (2)  Funds belonging in part to a client and in part
          presently or potentially to the lawyer...must be
          deposited therein, but the portion belonging to the
          lawyer...may be withdrawn when due unless the right of
          the receive it is disputed by the client,
          in which event the disputed portion shall not be
          withdrawn until the dispute is finally resolved.

The committee has earlier opined that it is not improper for an
attorney to deposit directly into the attorney's general
operating account or the attorney's personal bank account all
funds received from clients which are earned undisputed
attorney's fees and which do not constitute funds belonging in
part to a client and in part, present or potentially, to the
lawyer or law firm.  See LEO #585.  The committee believes that
the cited LEO is dispositive of the question you raise. 
Therefore, the committee is of the opinion that, assuming your
practice is such that you do not receive any proceeds related to
clients' actions, such as personal injury or real estate
settlement funds, and assuming further that you do not receive
any advance fees, part of which would obviously be unearned at
the time of receipt, it would not be necessary for you to
maintain an open trust account.  See also LEO #5l0.  The
committee cautions, however, that, should an occasion arise when
you do come into possession of client funds or advance fees, it
would then be necessary that a trust account be opened
immediately to accommodate such monies.

Committee Opinion
July 24, 1990