Commingling of funds can be a headache for lawyers.
Let’s start off by being perfectly honest; if you’re a solo practitioner or small firm owner just starting out in your law practice, commingling your own money or the firm’s operating cash with the money taken in from clients is an easy thing to step into — especially if your personal bank account is as empty as a beer can on the 4th of July.
In the meticulous world of legal finance management, however, the term “commingling of funds” should cause equal doses of anxiety and heartburn.
For lawyers and legal administrators overseeing a law firm’s finances, understanding and avoiding commingling is not just a matter of best practice; it’s a cornerstone of ethical and legal responsibility.
This article explores exactly what the commingling of funds entails, its implications under California law, and how law firms can be vigilant in avoiding it.
As we navigate through this complex topic, we’ll explore the legal, ethical, and practical dimensions that every legal professional should be aware of.
So, take a deep breath, and let’s dive in.
What is the commingling of funds?
First, let’s get a definition of Commingling of funds out of the way.
Commingling of funds occurs when personal funds are mixed with client funds, creating a blur in financial clarity and accountability.
In the context of a law firm, this might happen when a lawyer uses a single account for both client trust funds and their personal or operational expenses. While this might seem benign at first glance, commingling can lead to a host of legal and ethical problems.
Consider a scenario where a lawyer deposits a client’s settlement check into their personal account instead of a designated trust account. The risks here are as obvious as they are stomach-churning.
What if you put that settlement check into your personal account the night before your mortgage payment is automatically deducted (and what if you didn’t have enough personal funds to cover that payment this month)?
Suddenly and without malicious intent, you’ve spent your client’s money on your own financial needs. There’s not a State Bar in the country that’s going to be okay with this practice.
These types of simple actions can obscure the line between what belongs to the client and what belongs to the lawyer or firm.
Yet, to put it bluntly, anytime misuse of commingled funds occurs, an offending lawyer could be looking at a breach of fiduciary duty claim at best or even allegations of fraud at the other end of the spectrum.
Ethically, this makes perfect sense. Using client funds for your own expenses undermines the trust that clients place in their legal representatives and can severely damage a lawyer’s professional reputation. Let’s dig a little deeper
Is commingling funds illegal?
In California, the handling of client funds is governed by stringent rules and regulations.
The State Bar of California clearly mandates that lawyers keep client funds separate from their own. This is codified in the California Rules of Professional Conduct and is reinforced by case law.
Specifically, California Rules of Professional Conduct, Rule 1.15(c), explicitly instructs that lawyers “shall not commingle client funds with the lawyer’s own funds.” Rules don’t get much more clear than that.
Failure to adhere to this rule can lead to severe consequences, including disciplinary action by the State Bar, ranging from reprimand to disbarment.
Earlier this year, for example, a California lawyer was suspended from practice for an entire year and ordered to pay a monetary fine after the California Supreme Court found that he had intentionally and repeatedly commingled his own money with that of his clients.
Some may say he got off easy — but considering he can’t earn a paycheck for an entire year and his professional reputation is sure to suffer once he can practice again — these consequences are particularly dire.
What is the penalty for commingling funds?
In California, lawyers who engage in the commingling of funds face not only disciplinary actions from the State Bar but also the risk of civil lawsuits.
When a lawyer improperly mixes client funds with their own, it can lead to a breach of fiduciary duty, a legal principle that requires lawyers to act in the best interest of their clients.
Clients who suffer financial losses due to such breaches can file civil malpractice lawsuits against the attorney for damages. These lawsuits can seek restitution for the misappropriated funds and potentially additional damages for any financial harm caused.
To make matters worse, if the commingling of funds amounts to fraudulent behavior, clients may also pursue a claim for fraud, which can result in the imposition of punitive damages intended to punish particularly egregious conduct.
Potential criminal conduct
In addition to creating a risk of ethical sanctions, violating these regulations can also lead to criminal liability. For instance, misappropriation of client funds, which can occur as a result of commingling, may be charged as conversion (i.e., theft) or embezzlement.
The ramifications extend beyond disciplinary measures; they can include restitution to clients and even jail time.
Additional consequences of commingling
The ethical pitfalls of commingling funds in a law firm go beyond legal repercussions. It’s a matter of maintaining the integrity of the legal profession. Trust, once broken, is hard to regain.
When lawyers commingle funds, they risk losing the confidence of their clients and tarnishing the reputation of their firm and the legal profession as a whole.
Client transparency
Best practices to avoid commingling
So, now that we have a clear view of the severe consequences that can result from commingling, let’s talk about how to avoid the practice altogether. To prevent co-mingling, law firms should establish and adhere to strict financial policies. At a minimum, these policies should include:
Keeping track of transactions as they occur
One simple way to avoid the whole commingling mess is by recording every financial transaction as it happens. Think of it like keeping a diary for your firm’s finances.
Indeed, it’s something your accounting department should do as a matter of course (or you, if you are the accounting department).
This way, you always know where the money’s coming from and why. If you put off this simple step, things can get really muddled, and before you know it, you might accidentally mix up your clients’ cash with the firm’s.
As noted above, those types of accidents are unlikely to be viewed favorably by the State Bar.
Maintain separate accounts
On the most basic level, it’s important for every law firm to have two kinds of accounts. First, you have your operating accounts for the day-to-day expenses of the firm, and then you have trust accounts, which are for your clients’ money and funds from third parties.
Especially if you’re dealing with complex cases or running a big firm, it’s also a smart move to have individual trust accounts for each client. This way, there’s no mix-up between the firm’s money and the client’s cash.
As for those trust accounts – they’re not just any old accounts. Ideally, they should be earning interest, and that interest is typically paid to your clients.
In California, however, anytime you’re handling smaller amounts for clients or keeping their money for just a short while, you need to place those funds into an IOLTA account.
These are special accounts where all those small amounts get pooled together to earn interest, and that interest then gets sent off to support legal aid programs that benefit nearly 100 nonprofit legal service organizations throughout California.
Embrace tech tools
These days, there’s no need to make things more difficult than they need to be when there is a plethora of technology available to help you keep track of firm funds.
Using digital tools, like electronic payment systems and trust accounting software, is a game changer. They’re not just cool gadgets; they help us keep client funds neatly sorted from the firm’s money.
Plus, they make managing finances smooth sailing and are designed to keep your firm on the right side of ethical rules.
Regular audits
What if you’ve already commingled funds?
If you discover that your firm has inadvertently commingled funds, you have to address the issue immediately. Start by transferring any client funds back into the appropriate trust account.
It’s important to document the error and the corrective action taken, including all dates and amounts at issue. It won’t surprise you to hear that this is also the very best time to review and possibly update your accounting practices to prevent future occurrences.
If you find yourself in the unenviable position where the commingling has impacted your clients, you really need to inform them of the mistake and the remedial actions taken.
Depending on the severity and circumstances, you might also consider consulting with a legal ethics expert (who may advise you to report the incident to the relevant bar association, as transparency and proactive handling can be crucial in such situations).
The very best thing you can do for your practice, of course, is to set up systems to avoid commingling from the get-go.
There are a lot of things no lawyer wants to get caught doing, and commingling client funds will always appear at the top of that list.
Conclusion
Commingling funds poses grave ethical and legal risks for legal practitioners, especially in California, where stringent rules govern client fund management.
Mixing personal or operational cash with client funds erodes trust and invites severe consequences, including State Bar disciplinary actions, civil lawsuits, and potential criminal charges.
To safeguard against this, meticulous financial policies are essential.
Record transactions diligently, maintain separate accounts, and leverage technology for transparent financial management.
In the event of inadvertent commingling, immediate corrective action is imperative, accompanied by transparent communication with affected clients.
Preserving the integrity of the legal profession hinges on these proactive measures, ensuring that client trust remains intact and professional reputations untarnished.
