21st Century Trust Account Rules? Petition Seeks To Simplify

Recently, a viral Twitter conversation asked participants born before 1990 about their first online purchase. I’m really not sure—was it a book from the early days of Amazon? Some long-forgotten kitchen gadget? I know I was long out of college, but this was still when “e-commerce” was something distinct from just buying stuff. Even though it quickly became apparent that online shopping was secure, quick, and soon to be inevitable, it took awhile for people’s habits and risk tolerance to catch up with the technology.

State lawyer regulatory authorities are similar—at any given time, the Rules of Professional Conduct reflect the state of the world from years ago. (Don’t believe me? Take a look at the advertising rules and tell me they reflect how people do business in 2022.) It takes time for the rules to catch up.

Even when I was in law school from 2007 to 2009, people were wary of allowing lawyers to even accept credit cards; over the years, that has expanded to things like PayPal, Venmo, and even cryptocurrency. Over the last couple of decades, there have been substantial revisions to Wisconsin’s trust account rules. The most recent major change was in 2016, which allowed (finally!) electronic transactions for trust accounts, but created some rather byzantine ways to comply with the new rules (including a so-called “all in one trust account” that, may be impossible because insurers are not offering the required coverage). The Rules still generally prohibit direct electronic transactions in standard trust accounts.

That’s why I am heartened to see Rule Petition 22-05, which was recently filed by the Office of Lawyer Regulation’s director and trust account program administrator. If granted, the rule change would bring Wisconsin closer to the Model Rules and would allow lawyers to use electronic banking as a matter of course. The legal memo supporting the petition states, flat out, that e-banking is safe, and in some cases mandates (such as when tendering unclaimed property to the State).

Those of you outside Wisconsin may be used to operating, financially, in the 21st century already, but for my home state peers, take a look at the proposed changes. You may have the opportunity to let the Court know what you think (there is typically a comment period ahead of a hearing). I support these changes so lawyers can focus on their practice and keeping their clients’ property safe and worry less about the structure of the account where it’s being kept.