SBM - State Bar of Michigan

R-21

June 8, 2012

SYLLABUS

MRPC 1.15A neither enlarges nor alters lawyers' obligations to safeguard client or third person funds expressed in MRPC 1.15. The obligations of MRPC 1.15 and MRPC 1.15A are triggered only when a lawyer represents a client and, in the course of discharging duties as a lawyer, receives funds or other property that do not belong to the lawyer.

A lawyer serving as a bankruptcy trustee, who has statutory duties as an officer of the court but does not represent a client; a lawyer appointed as a receiver, who derives powers from the court appointment and does not have a client-lawyer relationship with the person or entity whose assets are subject to the receivership; and a lawyer who serves in a fiduciary role, such as a personal representative or attorney-in-fact, in an individual capacity as, for example, a family member of the decedent or principal under a power of attorney and not as a result of being retained as a lawyer to serve in that role, are not subject to the obligations of MRPC 1.15 and MRPC 1.15A when handling funds that belong to the bankruptcy estate, receivership, or probate estate.

Lawyers may have obligations as fiduciaries that are defined by common law, statutes, legal documents, court rules, court orders, or some combination thereof. The requirements of MRPC 1.15 and MRPC 1.15A do not supersede any obligations a lawyer performs as a fiduciary, such as, for example, a trustee's power to invest and reinvest trust property in accordance with the "Michigan prudent investor rule."

MRPC 1.15(d) requires that "[a]ll client or third person funds" be deposited into an IOLTA or non-IOLTA account. "Client or third person funds" include unearned legal fees and unincurred expenses that have been paid in advance, funds in which a third person has an interest, and funds in which two or more persons (one of whom may be the lawyer) claim an undivided interest. When the funds received are unearned fees and unincurred costs or expenses, they must be held in trust until earned or expended.

When a lawyer receives all or any portion of a fixed or flat fee before the work has been completed and when there is no agreement between the client and lawyer regarding when the fixed or flat fee is earned or whether any portion may be disbursed to the lawyer prior to the conclusion of the representation, the entire amount received must be deposited into a client trust account and held in trust until completion of the agreed upon legal services.

A lawyer is not permitted to commingle the lawyer's funds with client or third person funds. When funds are received from a client or third person in a "lump sum" that represents a combination of earned funds or incurred expenses along with unearned funds or unincurred expenses, the entire sum must be placed in trust and then any earned funds or incurred expenses must be promptly withdrawn.

Upon receipt of client or third person funds, lawyers are obligated to determine whether the funds should be deposited into an IOLTA or a non-IOLTA account. An IOLTA account refers to a pooled interest- or dividend-bearing account at an eligible institution that includes only client or third person funds that cannot earn income for the client or third person, because the individual amounts are too small or held too briefly to earn income in excess of the costs incurred. A "non-IOLTA account" refers to an interest- or dividend-bearing account in a bank, savings and loan association, or credit union, which contains larger or longer term funds that can earn net income for the client. Lawyers must ascertain whether the client or third person funds can earn net income. If the funds will earn income for the client or third person in excess of the costs incurred to safeguard the funds while held by the lawyer, they must be deposited into a non-IOLTA account. If the funds will not earn income in excess of the costs incurred, they must be deposited into an IOLTA account. A lawyer's good-faith decision regarding the deposit or holding of trust funds in an IOLTA account is not reviewable by a disciplinary body. However, a lawyer must review the IOLTA account at reasonable intervals to determine whether changed circumstances require the funds to be deposited prospectively into a non-IOLTA account.

Planning for an orderly transition in the event of sudden death or disability is important to assure that funds held in the lawyer's trust accounts are appropriately safeguarded in keeping with MRPC 1.15. Solo practitioners without another lawyer inhouse to manage accounts should consider including the name of a successor attorney as an alternative signatory on trust accounts who can perform the safeguarding duties required by MRPC 1.15 in the event of sudden death or disability. The successor lawyer's service in this capacity does not require membership or employment in the solo practitioner's law firm.

References: MRPC 1.2; 1.5(a); 1.8(e); 1.15(a), (b), (c), (d), (e), (g), (h) and (j); 1.15A(a); 1.16(d); R-7; RI-10; RI-69; RI-92; RI-93; RI-107; RI-189; RI-330; Grievance Administrator v. Cooper, 482 Mich 1079; 757 NW2d 867 (2008) rev'g Grievance Administrator v. Cooper, Case No. 06-36-GA (Sep 17, 2007).

TEXT

Since the adoption of Michigan Rule of Professional Conduct ("MRPC") 1.15A, commonly known as the TAON1 Rule, questions have been raised about the scope of its coverage. In particular, many lawyers are seeking clarification about the extent to which the TAON Rule applies to circumstances other than the traditional lawyer-client representation, such as when a lawyer is serving as a court-appointed receiver, trustee, personal representative or conservator; acting as a trustee pursuant to a trust instrument or other fiduciary pursuant to a probate and estate instrument; or functioning as a bankruptcy trustee in federal court. As lawyers have sought to understand the "notice" provisions of the TAON Rule regarding non-IOLTA2 accounts, it has become apparent that confusion exists about when the use of a non-IOLTA account is required. Also, many lawyers are uncertain about how to handle funds that represent an advance toward unearned fees, settlement funds, or funds that are not clearly earmarked when received by the lawyer.

As a starting point, it is important to note that MRPC 1.15A neither enlarges nor alters lawyers' obligations to safeguard client or third person funds expressed in MRPC 1.15, which has been in existence since 1990. Both MRPC 1.15 and MRPC 1.15A contain language that gives direction about when each Rule's obligations are triggered, as well as the scope of their coverage.

MRPC 1.15(d) provides:

A lawyer shall hold property of clients or third persons in connection with a representation separate from the lawyer's own property. All client or third person funds shall be deposited in an IOLTA or non-IOLTA account. Other property shall be identified as such and appropriately safeguarded.

MRPC 1.15A(a) provides:

Scope. Lawyers who practice law in this jurisdiction shall deposit all funds held in trust in accordance with Rule 1.15. Funds held in trust include funds held in any fiduciary capacity in connection with a representation, whether as trustee, agent, guardian, executor or otherwise.

Common to both Rules is the phrase "in connection with a representation." Although the term "representation" is not defined in the Michigan Rules of Professional Conduct, MRPC 1.2, entitled "Scope of Representation," describes lawyers' duties to their clients. As the phrase "in connection with a representation" is used in the MRPC, a lawyer serves in a representative capacity when rendering legal services on behalf of a client. Consistent with this usage, the obligations of MRPC 1.15 and MRPC 1.15A are triggered only when a lawyer represents a client and, in the course of discharging duties as a lawyer, receives funds or other property that do not belong to the lawyer. A lawyer serving as a bankruptcy trustee has statutory duties as an officer of the court but does not represent a client. For this reason, the obligations of MRPC 1.15 and MRPC 1.15A do not pertain to funds received by bankruptcy trustees in discharge of their duties under the Bankruptcy Code.3

Similarly, lawyers who are appointed receivers derive their powers from the court appointment and do not have a client-lawyer relationship with the person or entity whose assets are subject to the receivership.4 Accordingly, the obligations of MRPC 1.15 and MRPC 1.15A do not apply to funds received by a receiver. Finally, a lawyer who serves in a fiduciary role, such as a personal representative or attorney-in-fact, in an individual capacity as, for example, a family member of the decedent or principal under a power of attorney and not as a result of being retained as a lawyer to serve in that role, is not engaged in a "representation" that would trigger the requirements of MRPC 1.15 and 1.15A.

Lawyers may have obligations as fiduciaries (e.g., as trustees, personal representatives, conservators, guardians, and attorneys-in-fact) that are defined by common law, statutes, legal documents, court rules, court orders, or some combination thereof. For example, a lawyer who serves as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction. The commentary to MRPC 1.15 provides in pertinent part: "The obligations of a lawyer under this rule are independent of those arising from activity other than rendering legal services." It is clear from the commentary that the requirements of MRPC 1.15 and MRPC 1.15A do not supersede any obligations a lawyer performs as a fiduciary, such as, for example, a trustee's power to invest and reinvest trust property pursuant to the "Michigan prudent investor rule."

Simply stated, the obligations under MRPC 1.15 and MRPC 1.15A are only triggered when the lawyer receives client or third person funds or other property in the course of a representation. If the lawyer's access is through some other means, these Rules do not apply. For example, when a lawyer serves on a charitable foundation's board and has check-writing ability as the organization's treasurer, the funds in the account belong to the organization as the account holder and the lawyer's access to the funds is based on the office held in the organization rather than "in connection with a representation."

Some lawyers have advocated for an exemption from the requirements of MRPC 1.15 and MRPC 1.15A in circumstances where a lawyer serving a court-appointed function is required to post a surety bond and obtain court approval for payments from an account, contending that the trust account Rules are redundant and unnecessary because the court's oversight is intended to provide the necessary safekeeping protections. Unfortunately, disciplinary orders and publicized criminal fraud convictions, albeit involving a small segment of Michigan lawyers, confirm that significant defalcations have occurred even with stringent court oversight. Moreover, there is no such exception provided for in MRPC 1.15 and MRPC 1.15A. For lawyers engaged in a representation that includes a fiduciary role, if there is no legal authority to place client or third person funds other than in an IOLTA or non-IOLTA account, then client and third person funds received must be handled in accordance with MRPC 1.15 and MRPC 1.15A. The safekeeping protections of MRPC 1.15A are intended to provide early notice that a lawyer may be engaging in financial misconduct likely to injure clients. In those instances where the trust account Rules apply to funds related to a court proceeding, the TAON Rule works in concert with the court's oversight to enhance the safekeeping protections over funds held by lawyers in their trust accounts.

A careful review of both trust account Rules is necessary in order for Michigan lawyers to be fully informed about their ethical duties when receiving funds or other property in which a client or third person has an interest. MRPC 1.15 requires lawyers to ethically manage client and third person funds received by them. This caretaker obligation consists of five essential elements—a duty to notify, safeguard, segregate, deliver, and account for funds belonging to the client or third person.5 These requirements apply upon the lawyer's receipt of funds, so it is essential for the lawyer to have a clear understanding of which funds are properly characterized as trust funds before coming into possession of client or third person funds. Moreover, as the commingling of client or third person funds with funds belonging to the law firm or lawyer violates MRPC 1.15(a), it is equally important for lawyers to be able to determine which funds should not be deposited into their IOLTA or non-IOLTA accounts so as not to violate MRPC 1.15(a).

MRPC 1.15(d) requires that "[a]ll client or third person funds" be deposited into an IOLTA or non-IOLTA account. "Client or third person funds" include unearned legal fees and unincurred expenses that have been paid in advance,6 funds in which a third person has an interest,7 and funds in which two or more persons (one of whom may be the lawyer) claim an undivided interest.8 When the funds received are unearned fees and unincurred costs or expenses, they must be held in trust until earned or expended.9

For purposes of MRPC 1.15, fees can be categorized in two ways: "earned" and "unearned." Likewise, costs or expenses can be grouped into either "incurred" or "unincurred." Lawyers must analyze all funds they receive to determine whether they represent fees that are earned or unearned and, if the funds are for costs or expenses, whether the costs or expenses have been incurred or are yet to be incurred. Funds that represent earned fees and incurred costs or expenses must not be deposited into a lawyer's trust account.10

Some lawyers remain unclear about how to handle a fixed or flat fee paid before the work has been completed. When a lawyer receives all or any portion of a fixed or flat fee before the work has been completed and when there is no agreement between the client and lawyer regarding when the fixed or flat fee is earned or whether any portion may be disbursed to the lawyer prior to the conclusion of the representation, the entire amount received must be deposited into a client trust account and held in trust until completion of the agreed upon legal services.11 This is true even if the legal services are expected to be completed in a short period of time or do not require substantial attorney time to complete due to the nature of the case.

By contrast, earned fees remitted to a lawyer must not be deposited into a client trust account to avoid commingling the lawyer's funds with trust funds. This would include, for example, funds paid for legal services already performed.12

When funds are received from a client or third person in a "lump sum" that represents a combination of earned funds or incurred expenses along with unearned funds or unincurred expenses, MRPC 1.15(g) and the second sentence of MRPC 1.15(d) require all unearned funds and unincurred expenses to be deposited into a trust account. At the same time, the first sentence of MRPC 1.15(d) requires a lawyer to hold the lawyer's own property separate from property of clients or third persons. Prior opinions of this Committee have concluded that these Rules require the entire sum must be placed in trust and then any earned funds or incurred expenses must be promptly withdrawn.13 We agree.

A lawyer's personal expenses must not be paid directly out of an IOLTA account or non-IOLTA account. Once funds on deposit in the trust account are earned, they become the lawyer's property and must be withdrawn, whereupon they may be deposited into an operating or other account containing the lawyer's property. Informal Opinion RI-10 identified a circumstance where a lawyer could ethically designate and retain a portion of a fee as something akin to liquidated damages after being discharged by a client without cause.14 Subsequently, the Supreme Court upheld as not violative of MRPC 1.5(a), 1.15(b), and 1.16(d) a fee agreement that provided for the portion of a fee paid in advance to be nonrefundable.15 When a lawyer receives payment for services already performed and expenses incurred, the lawyer must hold those funds separately from client or third person funds and must not deposit them into a trust account because they belong to the lawyer or law firm.16 Depositing such funds into the lawyer's trust account would constitute an inappropriate commingling of the lawyer's funds with client or third person's funds.17 The only exception to this rule is set forth in MRPC 1.15(f), which permits a lawyer to deposit the lawyer's own funds into a client trust account in an amount reasonably necessary to pay service charges or other fees or to obtain a waiver of such charges or fees.18

When a lawyer receives settlement proceeds on behalf of a client, the lawyer must promptly take several steps. The lawyer must (1) notify the client of the receipt of the funds; (2) determine whether the proceeds must be deposited into an IOLTA or non-IOLTA account (based upon the factors set forth in MRPC 1.15(e)); (3) deposit the funds in an IOLTA or non-IOLTA account; (4) determine who is entitled to receive the funds; (5) secure the client's consent to the distribution of funds; and, (6) disburse the funds in conformity with the consent given by the client. When two or more persons (one of whom may be the lawyer) claim an interest in the funds, the lawyer must keep separate the amount of money in dispute until the dispute is resolved. The funds not in dispute should be promptly distributed.

Fulfilling these obligations is best accomplished by ensuring that checks representing settlement proceeds are made payable either to the lawyer or law firm in trust for the client or jointly to the lawyer or law firm and the client. A lawyer may not ethically request that a payor issue separate checks to the lawyer and the client if the purpose in doing so is avoiding compliance with the lawyer's obligation to deposit settlement proceeds in an IOLTA or non-IOLTA trust account.19 Making such a request would be incompatible with a lawyer's obligations both to safeguard client property and to disburse client funds promptly. To the extent that RI-92 and RI-93 preclude a lawyer from making such a request, they are reaffirmed.

Additionally, a lawyer would violate both MRPC 1.8(e)20 and MRPC 1.15(d)21 by paying a client the settlement amount from funds in the law firm's operating account and thereafter depositing the proceeds of a settlement check into the law firm's operating account. Simply put, the lawyer who advances settlement monies out of the lawyer's funds engages in an impermissible provision of financial assistance to the client.22

A non-IOLTA account refers to an interest- or dividend-bearing account in a bank, savings and loan association, or credit union, which contains larger or longer term funds that can earn net income for the client.25 A non-IOLTA account can either be a separate account for a particular client or a pooled account with subaccounting by the bank or by the lawyer, providing for computation of earnings for each client's or third person's funds.26

MRPC 1.15A(c) requires that IOLTA and non-IOLTA accounts be maintained only at financial institutions approved27 by the State Bar of Michigan.

It is essential for lawyers to understand the differences between IOLTA and non-IOLTA accounts in order to ethically manage client or third person funds. For example, even large sums can be properly deposited into an IOLTA account if the net earnings do not exceed the cost of establishing and administering a non-IOLTA account (e.g., a settlement check deposited into an IOLTA account just long enough for the check to "clear" and the funds to be disbursed). Lawyers must ascertain whether client or third person funds can earn net income. If the funds will earn income for the client or third person in excess of the costs incurred to safeguard the funds while held by the lawyer, they must be deposited into a non-IOLTA account. If the funds will not earn income in excess of the costs incurred, they must be deposited into an IOLTA account. Factors to use in making this determination are set forth in MRPC 1.15(e).28

Whether to place funds into an IOLTA or a non-IOLTA account is a lawyer's decision; a client waiver to put otherwise non-IOLTA funds into an IOLTA account is not permissible. A lawyer's good-faith decision regarding the deposit or holding of trust funds in an IOLTA account is not reviewable by a disciplinary body.29 However, a lawyer must review the IOLTA account at reasonable intervals to determine whether changed circumstances require the funds to be deposited prospectively into a non-IOLTA account.30

Planning for an orderly transition in the event of sudden death or disability is important to assure that funds held in the lawyer's trust accounts are appropriately safeguarded in keeping with MRPC 1.1531. Solo practitioners without another lawyer inhouse to manage accounts should consider including the name of a successor attorney as an alternative signatory on trust accounts who can perform the safeguarding duties required by MRPC 1.15 in the event of sudden death or disability.32 The successor lawyer's service in this capacity does not require membership or employment in the solo practitioner's law firm. Accordingly, RI-107 is distinguished from this opinion as overly broad to the extent it requires "that signatories on a law firm trust account must be members or employees of the [same] firm."

In summary, MRPC 1.15A was adopted to facilitate financial institution notification of overdrafts occurring in lawyer trust accounts, which is intended to provide an early warning of unethical activity. The ethical obligations set forth in MRPC 1.15 to safeguard clients and third parties are neither enlarged nor altered by MRPC 1.15A. A clear understanding of the requirements of both MRPC 1.15 and 1.15A is necessary for lawyers to ethically manage client and third person funds that come into their possession.

1 TAON is an acronym for "trust account overdraft notification." The Michigan Supreme Court adopted the TAON Rule on December 15, 2009, with an effective date of September 15, 2010. Michigan was the 42nd jurisdiction to adopt the Rule.

2 IOLTA stands for "Interest on Lawyers Trust Accounts."

3 The Committee notes that federal law imposes requirements upon bankruptcy trustees as officers of the court in the handling of funds of a bankruptcy estate that in some ways are not dissimilar from the requirements of MRPC 1.15 and MRPC 1.15A, but this fact is not the basis upon which the Committee concludes that the funds handled by bankruptcy trustees do not fall within the scope of the trust account rules.

4 See also RI-330 (November 13, 2002), which provides in pertinent part:

A court appointed receiver is "a ministerial officer of the court appointing him." Cohen v. Bologna, 216 N.W.2d 586, 587 (Mich. App 1974). The duty of the receiver is not to represent or advocate on behalf of a client, but "under the order of the court, to preserve and care for the property and turn it over to the person who is ultimately decided to be entitled thereto." Westgate v. Westgate, 292 N.W. 569, 571 (Mich. 1940). "Figuratively, a receiver is the arm of the court, appointed to receive and preserve the litigating parties property." Hofmeister v. Randall, 335 N.W.2d 65, 67 (Mich. App. 1983). The receiver "is charged with preserving the assets of the debtor for the benefit of both debtor and creditor and the receiver's jurisdiction over these assets is, in effect, that of the court itself." Cohen, 216 N.W.2d at 587. The receiver's power is derived from the court, not from representation of a litigating party.

5 MRPC 1.15(b), (c), (d), (g), and (h).

6 MRPC 1.15(g).

7 MRPC 1.15(b)(1).

8 MRPC 1.15(c).

9 MRPC 1.15(d).

10 MRPC 1.15(a)(3).

11 Informal Ethics Op RI-69.

12 Id. See also, MRPC 1.15(d).

13 After the check has cleared (i.e., the payor bank against which the check is drawn has paid the check), the portion attributable to earned fees and incurred expenses must then be withdrawn from the lawyer's trust account and may be deposited into the lawyer's general operating account. To avoid overdrafts to their trust accounts, lawyers should review the relevant portions of the applicable law, currently within the Commercial Transactions Code, to ensure that they understand when a check issued by a client or third person and deposited in the lawyer's trust account has been paid.

14 Informal Ethics Op RI-10 concludes, "where a client has solicited a lawyer's representation in complex litigation, and the client signs and understands a written fee agreement requiring payment of a large up-front "nonrefundable" retainer, then discharges the lawyer for reasons not attributable to the lawyer's misfeasance after the lawyer has expended resources and declines other employment in reliance on the agreement, it is not unethical for the lawyer to keep the entire retainer even though the amount kept exceeds what would have been earned on an hourly rate basis."

15 Grievance Administrator v. Cooper, 482 Mich 1079; 751 NW2d 876 (2008) rev'g Grievance Administrator v. Cooper, Case No. 06-36-GA (Sep 17, 2007).

16 MRPC 1.15(d).

17 Id.

18 MRPC 1.15(f).

19 On the rare occasion that a lawyer receives a settlement check payable solely to the client where no other party, including the lawyer, claims any interest in the proceeds, the lawyer may promptly deliver the check to the client. Because there is no division of the proceeds to be made in that circumstance, depositing the check into an IOLTA or non-IOLTA account would only delay disbursement to the client of funds to which the client is promptly entitled, arguably violating Rule 1.15(b)(3).

20 MRPC 1.8(e) provides in pertinent part, "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that ... a lawyer may advance court costs and expenses of litigation, the repayment of which shall ultimately be the responsibility of the client."

21 MRPC 1.15(d) provides, "[a] lawyer shall hold property of clients or third persons in connection with a representation separate from the lawyer's own property. All client or third person funds shall be deposited in an IOLTA or non-IOLTA account. Other property shall be identified as such and appropriately safeguarded."

22 See Informal Ethics Op RI-189, which provides in pertinent part, "Under the procedure proposed, the lawyer would be advancing not the court costs and expenses, but the very proceeds from the settlement or judgment entered. The lawyer is, in essence, providing financial assistance, albeit for the short term between resolution and payment by the opposing party. The general type of financial assistance posted by the lawyer here is proscribed by MRPC 1.8(e) and its two exceptions. Neither of the two exceptions applies here. Also, the fact that the litigation has been settled is irrelevant, otherwise the underlying spirit of MRPC 1.8(j) would be impeded."

23 MRPC 1.15(a)(2) defines an eligible institution as "a bank or savings and loan association authorized by federal or state law to do business in Michigan, the deposits of which are insured by an agency of the federal government, or . . . an open-end investment company registered with the Securities and Exchange Commission authorized by federal or state law to do business in Michigan" that "must pay no less on an IOLTA account than the highest interest rate or dividend generally available from the institution to its non-IOLTA customers when the IOLTA account meets the same minimum balance or other eligibility qualifications." Eligible institutions must also be State Bar-approved financial institutions under MRPC 1.15A.

24 MRPC 1.15(a)(3).

25 MRPC 1.15(a)(4).

26 MRPC 1.15(a)(4)(A-B).

27 Lawyers have questioned why certain types of institutions are not included on the State Bar's approved list. MRPC 1.15(a) identifies the types of financial institutions that lawyers must use for IOLTA and non-IOLTA accounts, each of which must be authorized by federal or state law to do business in Michigan. IOLTA accounts can be maintained at banks or savings and loan associations with federally-insured deposits, and open-end investment companies registered with the Securities and Exchange Commission. In addition to those types of financial institutions, non-IOLTA accounts can be maintained at credit unions with federally-insured deposits. To receive approval, a financial institution must enter into an overdraft notification agreement with the State Bar of Michigan under the terms of which it agrees to provide overdraft reports under the circumstances and containing the information described in MRPC 1.15A.

28 MRPC 1.15(e) provides: In determining whether client or third person funds should be deposited in an IOLTA account or a non-IOLTA account, a lawyer shall consider the following factors:
(1) the amount of interest or dividends the funds would earn during the period that they are expected to be deposited in light of (a) the amount of the funds to be deposited; (b) the expected duration of the deposit, including the likelihood of delay in the matter for which the funds are held; and (c) the rates of interest or yield at financial institutions where the funds are to be deposited;
(2) the cost of establishing and administering non-IOLTA accounts for the client or third person's benefit, including service charges or fees, the lawyer's services, preparation of tax reports, or other associated costs;
(3) the capability of financial institutions or lawyers to calculate and pay income to individual clients or third persons; and
(4) any other circumstances that affect the ability of the funds to earn a net return for the client or third person.

See also Michigan State Bar Foundation Attorney IOLTA Guidelines Brochure .

29 MRPC 1.15(j).

30 MRPC 1.15(j).

31 See Planning for an Orderly Transition , Dawn M. Evans (Sep 2009); Sudden Death or Disability: Is Your Practice—And Your Family—Ready for the Worst , Catherine M. O'Connell.

32 The successor attorney should agree to the designation and be notified that it has been made; however, no trust account identifying information should be given at that time.

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