Vermont Bar Journal, Vol. 40, No. 2 Fall 2015, Vol 41, No. 3 - Page 18

The Ethics of Dealing with Internet Scams unless” the lawyer reasonably believes they “have been deposited, finally settled, and credited to the lawyer’s trust account.”14 A comment to Rule 1.15 clarifies that “[a] lawyer should hold property of others with the care required of a professional fiduciary.”15 As noted by Roger Kohn, however, many Vermont lawyers disburse funds before they are “irrevocably credited to the trust account.”16 In fact, this is the very circumstance on which scammers rely to perpetuate their fraud. In an Advisory Ethics Opinion, the Vermont Bar Association declared that “[t]rust account checks can only be drawn on client funds after the deposit on which the check is drawn clears.”17 But Kohn observes that “what is meant by a check ‘clearing’ or funds ‘being available’” remains ambiguous, and waiting until there is absolutely no doubt about the availability of funds may cause “substantial delay before a disbursement could be made against a check which has been received.”18 Banking procedures exacerbate the ethical predicament: A bank, in an effort to serve its customers, “can ‘clear’ a check and make the funds available before the bank actually collects the funds. The bank may take weeks or even months to discover that the check is fraudulent.”19 When a bank finally notifies the lawyer that the processed check was fraudulent, two possibilities arise: (1) the bank may use funds from the trust to cover the bad check, thus taking from other clients’ funds; or (2) if no other clients’ funds were in the account, the account may be overdrawn.20 If other clients’ funds are affected, the lawyer may have violated Rule 1.15, which charges lawyers with the “safekeeping” of clients’ property.21 To avoid violating Rule 1.4, the lawyer must immediately inform the client(s) about the loss of funds.22 The Rules also require banks that hold pooled interest-bearing trust accounts to notify the Office of Disciplinary Counsel.23 A lawyer should contact federal authorities to report scam activity.24 All told, there is no allowance for “damage control” if a lawyer has fallen for a scam. Conclusion A lawyer cannot control whether she is the target of an Internet scam. However, a targeted lawyer can confidently respond to a suspicious unsolicited email in one of two ways: delete the email or follow up while taking proper precautions. (The easiest first step is to peruse the Internet for clues about the sender or proposed transaction/litigation.25) Once the attorney has responded to a purported prospective client, she must keep in mind all of her ethical obligations to that person, even when things start to seem shady. Finally, if the attorney does indeed fall victim to a scam, 18 THE VERMONT BAR JOURNAL • FALL 2015 she must promptly notify any affected clients, the proper authorities within the Vermont judiciary, and investigative or law enforcement officials. ____________________ Jordan Carpenter is J.D. candidate (2016) at Vermont Law School. He earned his B.S. in 2013 from the University of Alabama. Appendix This appendix lists websites that provide information and resources to be used by lawyers who think they are being targeted by scammers. It is not exhaustive. Bar Associations, Judicial Authorities, & Other Governmental Organizations Counterfeit Check Scams Continue to Target Law Firms, Cal. Bar Journal (2012), http://www.calbarjournal.com/ January2012/TopHeadlines/TH6.aspx. David J. Bilinsky & Laura A. Calloway, How Not to Get Stung by Promises of Easy Offshore Work, 34 Law Practice 58 (2008), http://www.americanbar. org/publications/ law_practice_home/ law_practice_archive/lpm_magazine_ articles_v34_is5_pg58.html. E-Mail Scams and Lawyer Trust Accounts, Ill. Att’y Registration and Disciplinary Comm’n, https://www.iardc.org/inform ation/alert.html (last visited June 5, 2015). Fraudulent Collection Scheme Directed at Colorado Attorneys, Colo. Bar Ass’n, http://www.cobar.org/page.cfm/ ID/21934/ (last visited June 5, 2015). Helen Hierschbiel, Scammers Take Aim at Lawyers: How to Avoid Becoming the Next Victim, OR. STATE BAR (2010), https://www.osbar.org/publications/ bulletin/10may/ barcounsel.html. Internet Crime Complaint Ctr., http:// www.ic3.gov/default.aspx (last visited June 5, 2015). Lowell Brown, Texas Attorney Warns of Email Collections Scam, Texas Bar Blog (Oct. 8, 2014), http://blog.texasbar.com/2014/10/articles/news/texasattorney-warns-of-email-collectionsscam/. Scams Targeting Lawyers: LSBA Members Report Scam Tactics Are Changing, La. State Bar Ass’n, https://www.lsba.org/ NewsArticle.aspx?Article=673b2ef8686e-45a1-b425-5022169fc235 (last visited June 5, 2015). Unofficial Blogs Attorney Email Scams, http://lawyerscam.blogspot.com/ (last visited June 5, 2015). Attorney Scams, Thompson Hall, http:// thompsonhall.com/scams-targetingattorneys/ (last visited June 5, 2015). www.vtbar.org