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Trust Account Overdraft Rules
I am a sole practitioner who is asked from
time to time by our probate court to act as personal representative,
guardian, conservator, or trustee. It's taken me a good half day to
hopefully come into compliance with the "broad interpretation" of the
overdraft notice requirement of SCR 20.1.15 for these fiduciary
accounts. Not that I have better things to do. (Editor's Note: Please
see the practice tips columns in the May and June issues.)
I would have thought that because I am under continuous court
supervision in these fiduciary accounts that our probate court, being
more qualified than the Board of Attorneys Professional Responsibility,
could handle any problems. Why isn't this the case?
I have always tried to keep every last dollar of the cash in my
fiduciary accounts invested at money market rates. Although I have never
experienced an overdraft, I will be taking extra care to assure that I
don't experience one through an inadvertent error or unexpected bank
charges, even if this results in loss of interest. And the additional
time required to stay in compliance is yet another item of overhead that
I need to consider in my hourly fees.
Both of my parents died last year and I was appointed personal
representative of their estates. I am not being compensated as attorney;
in fact I am not even acting as such. But since I am serving in a
fiduciary capacity, I supposedly come under the safekeeping rules of SCR
20.1.15(a). My two brothers will be happy indeed that they are somehow
being protected. After all, what do they know? They're only lawyers.
Richard W. Nuernberg, Madison
The points Mr. Nuernberg raises are being considered by a special
committee comprised of representatives from the State Bar and the Board
of Attorneys Professional Responsibility/Office of Lawyer Regulation
(BAPR/OLR) staff to address some of the more common issues with the
overdraft report requirements of SCR 20:1.15. We hope to have
recommendations for consideration by the Board of Governors and BAPR/OLR
within the next several months so there is timely action taken to
respond to the many areas of confusion about the applicability of this
rule to many different types of fiduciary accounts.
Dean R. Dietrich, Chair, State Bar Professional Ethics
Committee
James L. Martin, Interim Administrator, BAPR/OLR
Wisconsin Lawyer
