Question 1

What does IOLTA stand for?

Accepted Answer

IOLTA stands for "Interest on Lawyers' Trust Account."

Question 2

How is the interest on an IOLTA used?

Accepted Answer

Interest earned on an Ohio lawyer’s IOLTA is automatically withdrawn from the account and used to support Ohio’s civil legal aid programs and access to justice initiatives. In Ohio, the IOLTA program is administered by the Ohio Access to Justice Foundation. More information about the Ohio Access to Justice Foundation can be found at www.ohiojusticefoundation.org.(http://www.ohiojusticefoundation.org/)

Question 3

Am I required to have an IOLTA?

Accepted Answer

Under Prof.Cond.R. 1.15 (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)and R.C. 4705.09,(https://codes.ohio.gov/orc/4705.09) any lawyer who receives and holds funds on behalf of a client or a third party is required to have an IOLTA.

Question 4

Which rules and statutes govern use and management of an IOLTA?

Accepted Answer

Prof.Cond.R. 1.15 (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)and R.C. 4705.09 c(https://codes.ohio.gov/orc/4705.09)ontain all the requirements regarding IOLTAs and IOLTA management. Prof.Cond.R. 1.5 (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.5)also contains useful information regarding fees, which is closely related to IOLTAs.

You can read The Rules of Professional Conduct here.(http://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf)

Question 5

What is a client ledger?

Accepted Answer

Prof.Cond.R. 1.15(a)(2) (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)requires lawyers to “maintain a record for each client on whose behalf funds are held that sets forth all of the following: (i) the name of the client; (ii) the date, amount, and source of all funds received on behalf of such client; (iii) the date, amount, payee, purpose of each disbursement made on behalf of such client; (iv) the current balance for such client.” This record is commonly referred to as a “client ledger.” A sample client ledger can be found by clicking here.(https://odc.ohio.gov/_files/ugd/ac1e44_7281dce1fbc24809b32aa5ff853a841a.pdf)

Question 6

What is a general ledger?

Accepted Answer

Prof.Cond.R. 1.15(a)(3) (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)requires lawyers to “maintain a record for each bank account that sets forth all of the following: (i) the name of such account; (ii) the date, amount, and and client affected by each credit and debit; (iii) the balance in the account." This record is commonly referred to as a “general ledger.” A sample General Ledger can be found by clicking here.(https://odc.ohio.gov/_files/ugd/ac1e44_6e5c055e36644e3eb651da2108afdfa2.pdf)

Question 7

What is a retainer?

Accepted Answer

A retainer is an advance payment that a client makes to his or her lawyer before the lawyer performs any legal work for the client.  A retainer, like all advance payments, must be deposited into an IOLTA.  Once the lawyer performs work for a client, the lawyer can draw against the retainer; however, it is highly recommended that a lawyer provide the client with an invoice or an accounting of hours before drawing against the retainer.

Question 8

What is a "True" or "Classic" retainer?

Accepted Answer

A “true” or “classic” retainer is very rare.  It is a fee paid to a lawyer to ensure the lawyer’s availability; however, any legal work performed by the lawyer is billed separately at agreed upon rates. A “true” or “classic” retainer is considered as an “earned upon receipt” fee, and it does not need to be deposited into an IOLTA. However, should the lawyer become unavailable, the retainer may need to be refunded.

Question 9

What is a flat fee?

Accepted Answer

A flat fee is a set fee for a pre-determined set of legal services.  For instance, a lawyer may charge $1,000 to represent a client against an OVI charge as opposed to $200/hour.  Unless otherwise specified in writing, the flat fee would include all necessary and appropriate services up to and including trial and sentencing.  If, however, the representation is not completed for any reason, a portion of the flat fee must be returned.  See C(http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-Ohio-3662.pdf)leveland Bar Assn. v. Gruttadaurio,(http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-Ohio-3662.pdf) 136 Ohio St.3. 283, 995 N.E.2d 190, 2013-Ohio-3662.(http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-Ohio-3662.pdf)

Question 10

Does a flat fee need to be deposited into an IOLTA?

Accepted Answer

A flat fee paid in advance of services must be deposited into a lawyer’s IOLTA and should be drawn against at pre-determined benchmarks, i.e., ¼ after arraignment, ¼ after the final pre-trial, and remaining ½ after the representation is complete. If, however, a flat fee is designated as “earned upon receipt,” the fee should not be deposited into an IOLTA, provided the client is advised in writing that if the lawyer does not complete the work, the client may be entitled to a refund. See, Ohio Board of Professional Conduct Advisory Opinion 2016-1.(https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_16-001.pdf) A flat fee paid after the representation is complete does not need to be deposited into an IOLTA. See, Prof.Cond.R. 1.5(d)(3).(https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.5)

Question 11

How do I determine the amount of a refund on a flat fee agreement?

Accepted Answer

Per Cleveland Metro. Bar Assn. v. Gruttadaurio, 136 Ohio St.3d 283, 2013-Ohio-3662, a flat fee representation must be completed to earn an entire flat fee. Accordingly, if a flat fee representation is not completed, the client will be owed some refund, even if it is a nominal amount. To calculate the amount of the refund, an attorney must first determine what the reasonable fee for his or her services is. See, Prof.Cond.R. 1.5(a) (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.5)which contains several factors that may be used in determining the reasonableness of a fee including, but not limited to, the time and labor required in the representation, the fee customarily charged for similar services, the results obtained for the client, and the nature and length of the professional relationship with the client.

Question 12

Can I charge a non-refundable fee?

Accepted Answer

No. Prof.Cond.R. 1.5(d) (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.5)prohibits a lawyer from charging “a fee as ‘earned upon receipt,’ ‘non-refundable,’ or in any similar terms, unless the client is simultaneously advised in writing that if the lawyer does not complete the representation for any reason, the client may be entitled to a refund of all or part of the fee based upon the value of the representation” under the factors contained in Prof.Cond.R. 1.5(a).(https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.5)

Question 13

What does it mean to reconcile my IOLTA?

Accepted Answer

Prof.Cond.R. 1.15(a)(5) (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)requires lawyers to reconcile their IOLTA accounts at least once per month.  This means that a lawyer should balance his or her individual client ledgers, general ledgers, bank statements, and supporting documents against each other to ensure that they match.  After taking into account any outstanding deposits or checks, the total of all client ledgers should equal the total on the general ledger, which should equal the total on the bank statement.

If there are any discrepancies – even a penny – the lawyer should immediately determine what the error is and take the necessary steps to correct the error.  A sample reconciliation form can be found by clicking here.(https://odc.ohio.gov/_files/ugd/1af552_301d68e985c44145bef1281f7ab28ffb.pdf)

Question 14

What IOLTA records do I need to keep?

Accepted Answer

Prof.Cond.R. 1.15(a)(4)(http://www.supremecourt.ohio.gov/LegalResources/Rules/ProfConduct/profConductRules.pdf#%5B%7B%22num%22%3A50%2C%22gen%22%3A0%7D%2C%7B%22name%22%3A%22XYZ%22%7D%2C70%2C720%2C0%5D) requires attorneys to “maintain all bank statements, deposit slips, and canceled checks, if provided by the bank, for each bank account.”  These items may be maintained electronically so long as the attorney can access them at any time.

Question 15

How long do I need to keep IOLTA records?

Accepted Answer

Prof.Cond.R. 1.15(a) (http://www.supremecourt.ohio.gov/LegalResources/Rules/ProfConduct/profConductRules.pdf#%5B%7B%22num%22%3A50%2C%22gen%22%3A0%7D%2C%7B%22name%22%3A%22XYZ%22%7D%2C70%2C720%2C0%5D)requires lawyers to keep IOLTA records or records of other client property for “seven years after termination of representation or the appropriate disbursement of such funds or property, whichever comes first.”

Question 16

Can I keep personal funds in my IOLTA, and if so, how much?

Accepted Answer

Prof.Cond.R. 1.15(b) (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)prohibits a lawyer from depositing the lawyer’s own funds in a client trust account unless it is to pay or obtain “a waiver of bank service charges on that account, but only in an amount necessary for that purpose.” For instance, some banks require account holders to maintain a minimum balance in the account to avoid service charges. In this case, lawyers may maintain a limited amount of personal funds in their IOLTA to cover the minimum balance.

Lawyers may also keep personal funds in their IOLTA to cover check printing charges, insufficient funds charges, stop payment fees, ATM and teller fees, wire transfer fees, and credit card charges. However, the amount of personal funds in the IOLTA must be proportional to the amount of charges.

For example, if a lawyer historically has one $30 stop-payment fee in the lawyer’s IOLTA every month, the lawyer cannot maintain $500 of personal funds in the IOLTA to cover the stop-payment fees. On average, a lawyer should not have more than $100 of personal funds in the lawyer’s IOLTA unless the lawyer has documented proof of why the lawyer needs more. In addition, if personal funds are kept in an IOLTA, the lawyer must maintain a detailed record of the personal funds in the account similar to the individual client ledger that the lawyer keeps for client funds.

Question 17

Can I use personal funds in my IOLTA to pay for checks or stop payment fees?

Accepted Answer

No. You may not use personal funds in your IOLTA to pay for filing fees, medical records, or other case-related expenses on behalf of clients. While a lawyer is permitted to maintain a limited amount of personal funds in an IOLTA, under Prof.Cond.R. 1.15(b),(https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15) the personal funds may only be used “for the sole purpose of paying or obtaining a waiver of bank service charges on the account, but only in an amount necessary for that purpose.” Comment [2] to Prof.Cond.R. 1.15 (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)lists permissible items that may be paid for with personal funds in an IOLTA, such as stop payment fees, wire transfer fees, and brokerage or credit card charges. Filings fees, medical records, and other case-related expenses are not included in the list of permissible items. Accordingly, such expenses may only be paid from an IOLTA if the client has advanced money to the lawyer for payment of these costs. Otherwise, they must be paid from the lawyer’s business or operating account.

Question 18

Can I have a debit card associated with my IOLTA?

Accepted Answer

It is not prohibited, but best practice is to not have a debit card. If a lawyer has a debit card associated with an IOLTA, the lawyer must ensure that the debit card is used only for client-related expenses, such as paying for filing fees or medical records. The lawyer must also make sure to regularly record any debit card transactions on the lawyer’s individual client ledgers and general ledger.

Question 19

If I accept credit card payments from my clients, how should I account for the credit card fees?

Accepted Answer

If possible, a lawyer should have credit card fees deducted from the lawyer’s personal or business account. If, however, the fees must be deducted from the IOLTA account, the lawyer may maintain a limited amount of personal funds in the lawyer’s IOLTA to pay the fees. The amount of personal funds must be proportional to the amount of credit card fees that the lawyer regularly incurs. For instance, if the lawyer regularly incurs $50/month in credit card fees, the lawyer may not keep $1,000 in the IOLTA to cover the credit card fees. If a lawyer chooses to keep personal funds in the lawyer’s IOLTA to cover credit card fees, the lawyer must keep detailed records – similar to a client ledger – of the personal funds in his or her IOLTA. For more information see Advisory Board Opinion 2007-03.(https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_07-003.pdf)

Question 20

Can I accept electronic payments from my clients through PayPal, Square, Apple Pay, etc. ?

Accepted Answer

Yes, you can accept electronic payments from your clients. Electronic payments for unearned fees or advanced costs should be deposited directly into the lawyer’s IOLTA. Electronic payments for earned fees should be deposited directly into the lawyer’s business or operating account. If it is not possible to deposit funds into two different accounts, all electronic payments should be deposited into the lawyer’s IOLTA, with the lawyer transferring any earned fees into the lawyer’s business or operating account as soon as the electronic payment has cleared. Lawyers should be aware of the fees that payment services charge and should discuss the fees with their clients prior to payment and reach an agreement with the client as to who will be responsible for the fees.

Question 21

What do I do with funds in my IOLTA if there is a dispute over who owns them?

Accepted Answer

Prof.Cond.R. 1.15(e) (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)requires a lawyer to hold disputed funds in the lawyer’s IOLTA until the dispute is resolved.  The lawyer, however, must promptly distribute all undisputed portions of the funds.

If a third-party payor is going to pay a client’s fee, it is a best practice for the attorney to enter into a written fee agreement with the third-party payor and the client that addresses who can request a refund and how the refund will be handled.

Question 22

Can a third party pay my client’s fees, and if so, how should I handle third-party payors?

Accepted Answer

Yes, a third party can pay your client’s fees; however, under Prof.Cond.R. 1.8(f),(https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.8) a lawyer may only accept payment from a third party if certain requirements are met, including, but not limited to, there being no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship. If a refund must be made in cases involving a third-party payor, a lawyer should issue all refunds to the payor unless the payor releases the funds to another individual. In third-party payor situations, it is a best practice for an attorney to enter into a written fee agreement with the third-party payor and the client that addresses who can request a refund and how the refund will be handled.

Question 23

What is an IOLTA scam?

Accepted Answer

An IOLTA scam is any scheme in which an attorney’s IOLTA is targeted. Although there are many variations to the scams, the most common scam is where a “client” claims that another person or company owes the client money. A few days later, the other person or company allegedly decides to pay the debt and sends a check to the lawyer.  The “client” becomes aware of the check, and for various reasons, requests that the lawyer wire money to an account instead of sending a check for the proceeds. After the lawyer wires the money, the “client” absconds with the money, and a few days later, the deposited check is rejected as fraudulent. Often times by then, the “client” cannot be located.

Over the last few years, scams have become more prevalent and more sophisticated. Scam artists are using real company names, real websites, and fraudulent checks that look so real that it takes the bank several days to reject them. Two general hallmarks of all scams are 1) the “client” contacts the lawyer “out of the blue” and 2) the lawyer generally receives a substantial fee for a limited amount of work. To avoid becoming a victim of a scam, lawyers should do their due diligence on any potential clients before accepting employment. More importantly, the lawyer should verify that any check has cleared both their bank and the “payor bank” before disbursing funds. Please remember that a check that appears on your online statement may not have cleared the “payor” bank because, oftentimes, banks will front money from a check to their customers as a courtesy.

Question 24

Who should I notify if I change IOLTAs?

Accepted Answer

Lawyers should notify the Ohio Access to Justice Foundation with any changes to their IOLTAs, i.e., account numbers or banks. More information about the Ohio Access to Justice Foundation can be found at www.ohiojusticefoundation.org.(http://www.ohiojusticefoundation.org/) (http://www.ohiojusticefoundation.org/)In addition, lawyers should notify the Office of Attorney Services about any changes to their IOLTAs during their biennial attorney registration.

Question 25

Can I have more than one IOLTA?

Accepted Answer

Although R.C. 4705.09 (https://codes.ohio.gov/ohio-revised-code/section-4705.09)permits a lawyer to have more than one IOLTA, it is a best practice not to have more than one IOLTA unless absolutely necessary. There are very few circumstances in which more than one IOLTA would be warranted, and if a lawyer chooses to maintain more than one IOLTA, the lawyer must also keep detailed records of all accounts. If a lawyer is holding a large sum of money on behalf of a client or third party, such that the client or third party would receive a noticeable benefit from interest on the money, the lawyer may wish to open a separate non-IOLTA trust account for the client rather than depositing the client’s funds into his or her IOLTA.

Question 26

Can I deposit estate funds into my IOLTA?

Accepted Answer

Comment [1] to Prof.Cond.R. 1.15 states that “a lawyer should maintain separate trust accounts when administering estate moneys;” however, in March 2019, the Ohio Legislature passed R.C. 2109.41,(https://codes.ohio.gov/ohio-revised-code/section-2109.41) which permits lawyers to deposit estate funds into an IOLTA, “if the attorney, in consultation with the fiduciary, has determined that the funds are nominal in amount or will only be held in the interest on lawyer’s trust account for a short period of time.” 
 
If a lawyer decides to deposit estate funds into an IOLTA, the lawyer should consider and implement a plan as to how the lawyer will report those estate funds to a probate court if necessary while also maintaining the confidentiality of any other clients whose funds may also be in the IOLTA at the same time.

Question 27

What identifying information should I include on my IOLTA checks?

Accepted Answer

Prof.Cond.R. 1.15(a) (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)requires that your IOLTA be designated as a “client trust account,” “IOLTA account,” or with a clearly identifiable fiduciary title. Accordingly, lawyers should include, under the lawyer’s name on the upper left-hand corner of the checks, a designation such as “Attorney Trust Account” or “IOLTA.” 
 
IOLTA checks should also be clearly distinguishable from your personal or business checks to avoid the improper use of IOLTA checks. The Office of Disciplinary Counsel suggests that the checks be a different color, different size, and kept in a different location in the lawyer’s office.

Question 28

Can I post-date an IOLTA check?

Accepted Answer

No. An IOLTA check should never be post-dated. A lawyer should not disburse money from an IOLTA until the lawyer has confirmed that the supporting funds have been deposited, collected by the depository bank from the payor bank, and are available for use. The appearance of a check on your online account record does not necessarily mean that the check has cleared both the depository and payor bank, and the clearing time may vary from bank to bank. Lawyers should confirm with their individual banks the length of time it takes for their bank to make deposited funds available.

Question 29

What is the Ohio Access to Justice Foundation?

Accepted Answer

The Ohio Access to Justice Foundation (https://www.ohiojusticefoundation.org/)is a nonprofit organization committed to ensuring that civil legal aid is available to all low-income Ohioans. The OAJF achieves its mission through the distribution of financial resources generated by interest on Lawyer Trust Accounts (IOLTA) and Interest on Trust Accounts (IOTA).

Question 30

Am I required to have a written fee agreement with a client?

Accepted Answer

A written fee agreement is only required if there is a contingency fee or if a lawyer designates the fee as “earned upon receipt.”

However, even when not required, the use of written fee agreements is highly encouraged for both the protection of the lawyer and the client in disputes regarding fees. Prof.Cond.R. 1.5(b) (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.5)requires that the “nature and scope of the representation and the basis or the rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, unless the lawyer will charge a client whom the lawyer has regularly represented on the same basis as previously charged."

Question 31

What is an IOTA?

Accepted Answer

IOTA stands for Interest on Trust Account. It is similar to an IOLTA, except it is used by title agents. Like an IOLTA, the interest from an IOTA is transferred to the Ohio Access to Justice Foundation, where it is used to provide financial support to Ohio’s legal aid programs.

Question 32

Where can I obtain more information about how to manage my IOLTA?

Accepted Answer

The Office of Disciplinary Counsel offers a free one-hour CLE on its website regarding basic trust accounting procedures. Click here (https://odc.ohio.gov/ta101online)to access the CLE. Each quarter, ODC also offers an in-person, in-depth, 3.5-hour CLE regarding trust account management. Information about the live course can be found here.(https://odc.ohio.gov/ta101online) In addition, many local bar associations offer CLE courses regarding IOLTA management. There are also professional ethics lawyers located throughout Ohio who can provide advice or guidance on how to comply with the Ohio Rules of Professional Conduct. Finally, a lawyer can contact ODC's “Attorney Ethics Hotline” at (614) 387-9700 with any IOLTA-related questions.

Question 33

Can I use personal funds in my IOLTA to pay for filing fees, medical records, or other case-related expenses on behalf of my clients?

Accepted Answer

No. You may not use personal funds in your IOLTA to pay for filing fees, medical records, or other case-related expenses on behalf of clients. While a lawyer is permitted to maintain a limited amount of personal funds in an IOLTA, under Prof.Cond.R. 1.15(b),(https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15) the personal funds may only be used “for the sole purpose of paying or obtaining a waiver of bank service charges on the account, but only in an amount necessary for that purpose.” Comment [2] to Prof.Cond.R. 1.15 (https://www.supremecourt.ohio.gov/docs/LegalResources/Rules/ProfConduct/profConductRules.pdf#Rule1.15)lists permissible items that may be paid for with personal funds in an IOLTA, such as stop payment fees, wire transfer fees, and brokerage or credit card charges. Filings fees, medical records, and other case-related expenses are not included in the list of permissible items. Accordingly, such expenses may only be paid from an IOLTA if the client has advanced money to the lawyer for payment of these costs. Otherwise, they must be paid from the lawyer’s business or operating account.

Question 34

What should I do if a client gives me a check for funds that I have only partially earned?

Accepted Answer

The lawyer should deposit the check into the lawyer’s IOLTA, but then withdraw the earned portion of the funds from the IOLTA. Even when funds are partially earned, the lawyer must make sure to accurately record the transaction on the lawyer's individual client ledgers and general ledger.

Question 35

How long should I wait after depositing a settlement check or other check into my IOLTA before disbursing funds to a client?

Accepted Answer

When a check is deposited, it generally has to clear two different banks – the “collector bank,” which is your bank, and the “payor bank,” which is the bank that is distributing the funds.  The time that it takes for a check to clear these banks can depend on the bank’s internal policies, the amount of the check, and whether the bank is foreign or national. A lawyer should not disburse funds until he or she has confirmed that the check has cleared both the collector and payor bank.

Oftentimes, as a courtesy to their customers, banks will release funds to a customer prior to collecting funds from the payor bank; however, if the payor bank later rejects the check, the funds may still be deducted from the lawyer’s account.  Please remember that simply because a deposit appears on an online statement, it does not necessarily mean that the check has cleared the payor bank.  A lawyer should be familiar with his or her bank’s policies concerning holds, deposits, and clearing times.

Question 36

Can I use a credit card to pay client-related expenses and then pay my credit card bill directly from my IOLTA?

Accepted Answer

It is not prohibited, but best practice is not to pay your credit card bill directly from your IOLTA. If a lawyer uses a credit card to pay for client-related expenses and intends to pay the credit card bill directly from his or her IOLTA, the lawyer must ensure that the credit card is used only for client-related expenses. In addition, the lawyer must ensure that each affected client has sufficient funds in the IOLTA to cover the respective charge on the credit card statement. The lawyer must also make sure to regularly record any credit card transactions on the lawyer’s individual client ledgers and general ledger. See, Advisory Opinion 2007-3.(https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_07-003.pdf)

Frequently Asked Questions (FAQs)