Tuesday, September 29, 2009

Trust Account Statements - are law practices issuing them?

To determine whether law practice is complying ,Trust Account Investigator to review transaction file
– if copy of trust account statement is located on file - no further action
– if no copy of trust account statement on file ask law practice if statements issued
o if no, report as breach
o if yes, sight actual copies retained by law practice

Small trust Account Balances - Procedure to be followed

Agreed procedure is as follows:
• Review the relevant transaction file to determine whether the law practice has recovered all outlays (note outlays now need to have been paid prior to reimbursement).
• If all outlays have not been recovered, prepare a bill of outlays and forward them to the client's last known address (assuming that the law practice has no knowledge that the client has changed address). I remind you that a Notice of withdrawal/request for payment (s58(3)(b) of the LPR needs to be given or sent to the client (most law practice seem to be placing this as a footer to their bills of cost).
• If all outlays have been recovered and the client's whereabouts is unknown, then a unclaimed money return needs to be prepared for the Public Trustee (see s713 of the LPA and section 12.0 of the Trust Accounting Guide).
• If additional costs have been incurred in trying to disburse these funds, I believe that the law practice is entitled to prepare a bill of costs for follow up work, stop payment of cheques, telephone calls, electoral roll searches and other searches eg Whitepapges. The bill of costs should be prepared and given to the client. If the client's whereabouts are unknown then the bill of costs should be presented to the Public Trustee as a deduction from the funds included in the unclaimed money return prepared for the Public Trustee.

Thursday, September 24, 2009

Is a trust account authority required to transfer a person's trust money to another trust account?

Ss. 249(1) of the Legal Profession Act 2007 provides, inter alia:

"A law practice must -
(a) hold trust money ............................. exclusively for the person on whose behalf it is received; and
(b) disburse the trust money only under a direction given by the person.

There is no definition of "disburse" for the purposes of S. 249.

The ordinary meaning of "disburse" is "pay out; expend".

The transfer of trust money from one ADI trust account maintained by a law practice to another ADI trust account maintained by that same law practice is not a payment out of the client's trust money. The law practice continues to hold the money for the client.

Accordingly, there is no requirement for a law practice to obtain an authority, from the person on whose behalf trust money is held, in order to transfer that person's trust money to another ADI trust account maintained by the law practice.