3.8 Withdrawing Trust Funds
Only lawyers can authorize a withdrawal from a trust account. By signing a withdrawal requisition (cheque, electronic funds transfer or transfer) from a trust account, you are certifying that
- the accounting records are current,
- the withdrawal of trust money is required for payment for the legal matter,
- the client has sufficient funds in trust to fund the withdrawal,
- the money is not restricted for another purpose,
- you have the express or implicit authority of the client to make the withdrawal and
- the trust bank account has sufficient funds to fund the withdrawal.
This means that you have to look at the particular client's trust ledger to ensure there are sufficient funds held for the client. Remember the broad definition of client before concluding that you have all the consents you require (Rules of the Law Society of Alberta, Rule 119.21(2)).
Rule 119.21(3) provides that you may withdraw from a trust account only those funds that:
- are properly required for payment to the client for whom the money is held or to any other person if authorized by the client for whom the money is held (Rule 119.21(3)(a)),
- are paid to you to pay as payment of a billing for fees and disbursement (provided the conditions in Rule 119.21(2) are met)(Rule 119.21(3)(b)),
- are being transferred directly into another trust account of the firm (Rule 119.3(c)),
- were paid into your trust account by inadvertence in contravention of the Rules (Rule 119.3(d)),
- the money was deposited into your trust account because the payment to the law firm belonged in part to the law firm and in part to another (Rule 119.2(3)(e)) and
- the money is paid pursuant to a court order (Rule 119.21(3)(f)).
Note that bank fees are not within this list. You must ensure that your approved depositary debits your general account, and not the trust account, for all fees. See the next chapter for more information about keeping a small “float” in your trust account.
Funds must be withdrawn by a cheque marked "trust," and signed by a practising lawyer (Rule 119.21(1)) unless the Executive Director authorizes withdrawals or transfers by a non-lawyer (Rule 119.22(2)).
You can withdraw trust money from your trust account by using a consecutively numbered trust account cheque which
- indicates that it is a cheque drawn on a trust account,
- is payable to a person - and not to cash or bearer - except where required in order to refund cash (Rule 119.38(5)(d)),
- is payable to the ultimate recipient of the funds,
- is dated - not post-dated - and
- is completed as to payee and the amount payable before being signed.
If the cheque is payable to an approved depositary, you must note the reason for the payment in the memo field of the cheque (Rule 119.22(1)).
The cheque may be co-signed by a non-lawyer if you decide you want a second signature. It is never acceptable to pre-sign trust cheques, Rule 119.22(1)(f) states that a trust cheque must be fully completed as to the payee and the amount before being signed.
Only lawyers from your law firm can sign trust cheques. This makes it tricky for lawyers in solo practice who are absent from the office, whether due to vacation or an emergency.
Withdrawals by Bank Draft/Money Order
You may not make withdrawals from your Trust Account by bank draft or money order without filing a Bank Drafts and Money Orders Certification and complying with Rule 119.46. To withdraw funds by bank draft or money order, you must
- obtain the recipient’s authorization,
- document the exceptional circumstances on the file,
- purchase the money order only at an approved depository where your firm has a pooled trust account,
- make the bank draft or money order payable to the ultimate payee and
- maintain a copy of the bank draft or money order on the client’s file (Rule 119.46(2)).
The Rules allow electronic withdrawals provided that
- the approved depository you are using is able to produce a hard copy confirmation within two days of the withdrawal showing the details,
- you have written authorization from the payee detailing the destination account,
- you complete a Electronic Banking Withdrawal form,
- the approved depository provides you with confirmation and within two days of the withdrawal you must write the client name and file number on the confirmation document, and
- you maintain the written instructions from the payee and the confirmation from the approved depository as part of your prescribed financial records (Rule 119.42(1)).
Please read all of the conditions in Rule 119.42(1) before making any electronic withdrawals. You must also complete the Electronic Banking Withdrawal form for every electronic withdrawal.
Rule 119.21(1) provides that all withdrawals and transfers from a trust account must be signed by a lawyer of the law firm unless otherwise authorized by the Executive Director of the Law Society. If you anticipate an absence, you can apply for authorization for an alternate signing authority by emailing Trust Safety, ideally at least two weeks in advance, and state
- the time period needed,
- the full name of the proposed alternate signatory and
- the reason for the request.
Since circumstances can change both for you and your alternate signatory, approvals will only be granted for a maximum period of six months. You can request a renewal of this period if necessary.
Remember that you are responsible for your law practice even if something occurs during your absence. If the Law Society becomes aware of information that the alternate signatory is no longer suitable, approval can be revoked.
Your alternate signing authority will see information about your clients in the course of signing trust cheques in your absence. You may have to seek consent from your clients to the new signing authority.
We know that unexpected absences can happen. Lawyers should develop a plan for these emergencies which includes having another lawyer available to sign trust cheques. It is easier for you to arrange this with a colleague than it is for your assistant to deal with if something unexpected happens.
Cheque authorization is really important since the only exceptions to withdrawal from trust by cheque are
- electronic withdrawal of funds subject to the requirements of Rule 119.42(1),
- the client authorizing a transfer from a pooled trust account to a separate trust account (Rule 119.20(3)).
To ensure a proper paper trail for trust funds in a SIBA, you must first transfer the funds to your pooled trust account (Rule 119.20(4)).
As well, it is important to note that generally the only way to move your fees from the trust account to your general account is by trust cheque. Electronic withdrawals are only permitted when the conditions in Rule 119.42(1) are met. You can only use a bank draft or a money order to withdraw funds from a trust on application to the Manager, Trust Safety (Rule 119.46(1)), and on the conditions set out in Rule 119.46(2).