Probate Section Report
Larry E. Ciesla

A regular monthly meeting of the probate section was held on November 10, 2004. I would like to welcome a new member, Jack Bovay, who attended the November meeting. Jack is a CPA and an attorney. Jack primarily practices as a CPA under the firm name of Austin, Bovay & Gillman. Jack is the de facto senior partner in the firm, as Keith Austin is substantially retired, although Jack reports that Keith still comes to the office on a frequent basis. Keith is also a CPA and lawyer and for many years was a fixture in Gainesville professional circles.

Jack reports that his law practice is limited primarily to estate planning and that he does a lot of work in the area of trusts. In addition, he occasionally consults with attorneys and testifies as an expert witness in accounting matters. Speaking of which, I know that I speak for all estate planning attorneys who knew and worked with local CPA Curt Green, who has retired and moved to Arizona, when I say that we will certainly miss Curt and wish him the best in his new life.

The November meeting proceeded with a lengthy discussion led by Jay Donohoe regarding the implications of recent trends in the banking industry, as they relate to attorneys and their trust accounts. Jay spent quite a bit of time before the meeting researching these matters and we/I would like to think Jay for his efforts and for sharing his work with the section. By now, we are all probably receiving images of checks, as opposed to the actual checks in our monthly bank statements. Some of you may have noticed that you receive images of the fronts and not the backs of your checks.

Jay indicates that this is a violation of the trust account rules as set forth in Rule 5-1.2(b)(3). All lawyers’ trust records must contain the fronts and backs of all checks. I have personally run into this problem with my bank, and when I pointed out the problem, it was quickly corrected. It is important to note that since the banks are now destroying the originals of our checks (I am not sure how long they wait before doing so), it is important to be sure to get images of both fronts and backs, as it may be too late if it is discovered some time down the line that the backs are missing.

Another banking development concerns the dilemma posed by the fact that the checks are now being paid “immediately”, whereas we are not always getting immediate credit for our deposits, even for certified funds. This is obviously an issue of concern for real estate practitioners. According to Jay, the Florida Bar’s Response to this problem was to point out that all lawyers must comply with the prohibition against disbursing against uncollected funds, as set forth in Rule 5-1.1(j). My concern is this regard has always been to ensure that a check written on my trust trust account to a seller at the real estate closing is honored by my bank, even if the seller takes the check directly from my office to my bank. Accordingly, I have obtained a commitment from my bank to the effect that all such checks will be honored. Obviously, by implication, this means the bank will be giving me “complimentary” credit for all my deposits.

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