Yes, but, at this time, these circumstances should still be rare. The existing requirement is important as it ensures that client funds are handled properly and that the lawyer or paralegal is responsible for those funds.
Alternative Deposit Options:
If lawyers and paralegals are anticipating concerns with depositing funds into trust at the branch of their financial institution by the end of the next business day, they should first consider whether there is an alternative deposit option:
- Deposit by ABM
Lawyers and paralegals are permitted to deposit funds into trust by ABM. For more information, consult the Frequently Asked Practice Management Questions regarding COVID-19 about ABMs or the Law Society’s
Bookkeeping Guide for Lawyers or
Bookkeeping Guide for Paralegals.
- Remote deposit capture
Lawyers and paralegals may use remote deposit capture – a technology, typically used via mobile device, which gives users the ability to deposit cheques remotely into an account at their financial institution. The user does not have to deposit or deliver the cheques directly to the financial institution. This should ensure that trust funds are deposited promptly.
For more information about what remote deposit capture is, including its benefits and risks, and how to integrate it into practice, lawyers and paralegals should review the Law Society’s
Remote Deposite Capture resource.
- Transfer from general to trust
If a lawyer or paralegal receives cash or a cheque for deposit into trust and is unable to attend at their financial institution to deposit it, an electronic transfer from general to trust could be made with a notation in the lawyer or paralegal’s bookkeeping records explaining that due to COVID-19 the transfer was made to ensure trust funds were properly deposited in a timely fashion. Although not required by
By-law 9, at a later date, the lawyer or paralegal may deposit the cash or cheque into their general account as it belongs to them.
Securing Funds, Best Efforts, and Documentation:
If a lawyer or paralegal is unable to deposit a cheque or cash into trust at their financial institution or by one of the alternative deposit options described above by the end of the next business day, the lawyer or paralegal should:
- Secure the trust cheque or cash
- Create a record of
- How the funds will be secured for the interim period until deposit
- Why the lawyer or paralegal was unable to deposit the funds into trust (e.g., branch was closed and ABM out of service)
- The plan for depositing the funds into trust as soon as possible thereafter
- When the deposit was ultimately made
Lawyers and paralegals should ensure that no trust funds are disbursed from a client’s balance until the lawyer or paralegal has ensured that that the money is in trust for the client through one of the above options.
As noted above, although in some cases lawyers or paralegals may be unable to meet the requirement, these instances should be rare. Lawyers and paralegals are expected to make and demonstrate best efforts in meeting these obligations and are reminded that they are responsible for the client’s funds once accepted.