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In re Bailey9/15/2005
ial institution which is authorized by federal, District of Columbia, or state law to do business in the jurisdiction where the account is maintained and which is a member of the Federal Deposit Insurance Corporation, or the Federal Savings and Loan Insurance Corporation, or successor agencies. Other property shall be identified as such and appropriately safeguarded; provided, however, that funds need not be held in an account in a financial institution if such funds (1) are permitted to be held elsewhere or in a different manner by law or court order, or (2) are held by a lawyer under an escrow or similar agreement in connection with a commercial transaction. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property, subject to Rule 1.6.
Subsection (a) and (b) of Rule 1.15 use the terms or phrases: "property of clients or third persons," "funds or other property in which a client or third person has an interest," and "funds or other property that the client or third person is entitled to receive." The word "property" as used in these subsections is not defined. The Restatement of the Law of Property, however, uses the word "property" "to denote legal relations between persons with respect to a thing." RESTATEMENT OF THE LAW OF PROPERTY, Introductory Note (1936).
"Legal relations between persons can be of widely differing types," and those relations may be explained, in part, by using the word "right." Id. The restatement defines "right" as "a legally enforceable claim of one person against another, that the other shall do a given act or shall not do a given act." RESTATEMENT, ยง 1. This interpretation of "right" is embodied in Rule 1.15, as evidence by Comment to the rule:
Third parties, such as client's creditors, may have just claims against funds or other property in a lawyer's custody. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. However, a lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party.
Rule 1.15, Comment (1998) (emphasis added). And the concepts of (1) a "claim," reflected in the definition of "right" found in the Restatement, and (2) "just claim" as used in Comment of the rule 1.15 are central to the analysis of D.C. Legal Ethics Opinion No. 293, "Disposition of Property of Clients and Others Where Ownership is in Dispute" (adopted July 20, 1999, revised Nov. 16, 1999), on which the Board relies. Opinion No. 293 is instructive because it examines third party claims, and "just claims": in a third party context. The opinion differentiates the "claims of a client" from "third party claims":
Unlike the claims of a client, which need not be justified even superficially in order to bar the lawyer from making a distribution, In re Haar, 667 A.2d [1350,] 1353 [D.C. 1995], the claims of the third party must rise to a higher level. The third party must have a "just claim" as to which "applicable law" imposes a duty on the lawyer t
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