I. INTRODUCTION
Under rules adopted by the Nebraska Supreme Court for the protection of the public, a financial institutions (defined in the rules as any state or federally chartered bank, savings bank, savings and loan association or building and loan association insured by the FDIC) wishing to be approved as a depository for lawyer trust accounts, must file an “Attorney Trust Account Overdraft Notification Agreement” (sample agreement follows this article) with the Counsel for Discipline of the Nebraska Supreme Court (“Counsel for Discipline”).
The Trust Account Overdraft Notification Agreement requires approved financial institutions to report to the Counsel for Discipline in the event that any properly payable instrument (an instrument that, if presented in the normal course of business, is in a form requiring payment under the laws of Nebraska) is presented against a lawyer trust account containing insufficient funds, irrespective of whether or not the instrument is honored. An Agreement filed by a financial institution applies to all branches of the financial institution and may not be cancelled except upon 30 days’ notice in writing to the Counsel for Discipline. Any financial institution which does not agree to make reports regarding lawyer trust account overdrafts to the Counsel for Discipline is not eligible to maintain a lawyer trust account.
II. FORMAT OF OVERDRAFT NOTIFICATION REPORTS
Under the Supreme Court rule, lawyer trust account overdraft notification reports required of financial institutions must be in the following format:
A. In the case of a dishonored instrument, the report must be identical to the overdraft notice customarily forwarded to the depositor. If the Counsel for Discipline makes a written request for a copy of the dishonored instrument, the financial institution must provide a copy or a machine readable copy of the instrument, if the instrument is available to the financial institution, to the Counsel for Discipline within five banking days of receiving the request; and
B. In the case of instruments that are presented against insufficient funds but which instruments are honored, the report must identify the financial institution, the lawyer or law firm, the account number, the date of presentation for payment, and the date paid, as well as the amount of overdraft created thereby.
III. DELIVERY OF REPORTS
Overdraft notification reports required under the Supreme Court rule may be delivered by mail, electronically or otherwise to the office of the Counsel for Discipline within five banking days of the date on which an instrument is dishonored. If an instrument presented against insufficient funds is honored, then the report must be delivered by mail, electronically or otherwise to the Counsel for Discipline within five banking days of the date of presentation for payment against insufficient funds.
Reports mailed to the Counsel for Discipline may be forwarded to the following address:
Counsel for Discipline of the Nebraska Supreme Court
3808 Normal Blvd.
Lincoln, NE 68506
Phone: (402) 471-1040
Fax: (402) 471-1014
IV. LAWYER CONSENT
The Supreme Court rule provides that every lawyer practicing or admitted to practice in the state of Nebraska shall, as a condition thereof, be conclusively deemed to have consented to the reporting and production requirements mandated by the rule.
V. RECOVERY OF COSTS
A financial institution making overdraft notification reports to the Counsel for Discipline may charge a particular lawyer or law firm for the reasonable cost for producing the reports and records required by the Supreme Court rule.
VI. IMMUNITY FROM LIABILITY
The Supreme Court rule specifically provides that the rule does not create a claim against a financial institution or its officers, directors, employees, or agents for failure to provide a trust account overdraft report or for compliance with any provision of the Supreme Court rules.
Attorney Trust Account Overdraft Notification Agreement
Financial Institution:
Address:
The undersigned, being duly authorized by the above named financial institution (“financial institution”), hereby applies for approval of the financial institution to receive attorney trust accounts. In consideration of the approval of the financial institution by the Counsel for Discipline of the Nebraska Supreme Court, the financial institution agrees to comply with the reporting requirements for such institutions as set forth in the Trust Account Overdraft Notification Rules of the Nebraska Supreme Court.
The financial institution specifically agrees:
(1) To report to the Counsel for Discipline of the Nebraska Supreme Court in the event any properly payable instrument is presented against a lawyer trust account containing insufficient funds, irrespective of whether or not the instrument is honored.
(2) That all such reports shall be in the following format:
(A) In the case of a dishonored instrument, the report shall be identical to the overdraft notice customarily forwarded to the depositor. The financial institution shall provide a copy or machine-readable copy of the dishonored instrument, if the instrument is available to the financial institution, to the Counsel for Discipline within 5 banking days of receiving a written request for a copy of the instrument from the Counsel for Discipline.
(B) In the case of instruments that are presented against insufficient funds but which instruments are honored, the report shall identify the financial institution, the lawyer or law firm, the account number, the date of presentation for payment, and the date paid, as well as the amount of overdraft created thereby.
(3) That such reports shall be delivered by mail, electronically, or otherwise to the Office of the Counsel for Discipline of the Nebraska Supreme Court within 5 banking days of the date on which an instrument is dishonored. If an instrument presented against insufficient funds is honored, the report shall be delivered by mail, electronically, or otherwise to the Office of the Counsel for Discipline of the Nebraska Supreme Court within 5 banking days of the date of presentation for payment against insufficient funds.
(4) That pursuant to the Trust Account Overdraft Notification Rules of the Nebraska Supreme Court, it understands that every lawyer practicing or admitted to practice in Nebraska has given consent to the reporting and production requirements set forth above.
(5) That it understands that the financial institution may charge a particular lawyer or law firm the reasonable cost of producing reports and records required by the Trust Account Overdraft Notification Rules of the Nebraska Supreme Court.
(6) That this Attorney Trust Account Overdraft Notification Agreement shall apply to all branches of the financial institution and shall not be canceled except upon 30 days notice in writing to me Counsel for Discipline of the Nebraska Supreme Court.
Agreed to this __ day of_____________, 20__.
Signature: _________________________________
Title: _____________________________________
Financial Institution:_________________________