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