Is This Commingling?
By Dan Murdock, OBA General Counsel

QUESTION: My bank requires that I maintain a nominal amount on deposit in my trust account to cover services fees. Is that commingling ?

ANSWER: Yes, technically, that is commingling. "Commingling occurs when the client's funds are combined with the attorney's personal funds," Oklahoma Bar Association v. Cummings, 1993 OK 127, 24, 863 P.2d 1164.
As a practical matter, however, the Professional Responsibility Commission is not going to discipline a lawyer privately or recommend the filing of formal charges for such "commingling."

The ABA has amended the Model Rules of Professional Conduct to provide that "A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose," MRPC Rule 1.15(b)(2002). This amendment "incorporates an accommodation that many jurisdictions had already been making, either by amendment or interpretation," Rule 1.15, Safekeeping Property, Annotated Rules of Professional Conduct, 254 (5th Ed. 2003).

The Oklahoma Rules of Professional Conduct Committee is reviewing all ABA Ethics 2000 amendments to the Rules and will soon review Rule 1.15. If and when the ABA's recent amendment to Rule 1.15 is approved by the Rules Committee, the Board of Governors and the Supreme Court, the Rules will expressly allow a lawyer to maintain personal funds in a trust account to be applied towards service charges. Until such time, the Office of General Counsel will not urge discipline in such an instance so long as the amount is the minimum necessary to address service charges, the funds are "tracked" and the lawyer does not use those funds for any other purpose.