Idaho Bar Commission Rules 600 – 616 govern the Client Assistance Fund.
Under Idaho Code § 3-409, the Idaho Supreme Court and the Idaho State Bar Board of Commissioners have set up a fund known as the Client Assistance Fund. The purpose of the Fund is to reimburse members of the public for all or part of any losses caused by the dishonest conduct of a lawyer admitted to practice law in Idaho. Under this program, portions of annual admittance fees paid by all lawyers throughout Idaho are dedicated to the Fund.
Because of the purpose of this Fund, limitations have been placed upon the types of claims permitted and the amount of compensation granted. In fact, the maximum amount payable on any one claim has been restricted by Idaho Supreme Court rule to $25,000. Additionally, claims made against the Fund must be filed no later than three (3) years after the claimant knew or should have known of the lawyer’s dishonest conduct. (I.B.C.R. 606).
IMPORTANT NOTICE: The Client Assistance Fund has been set up to attempt to compensate claims made solely by a client against his or her Idaho lawyer, and only for DISHONEST CONDUCT by the lawyer. (I.B.C.R. 600). “Dishonest Conduct” under the rules governing the Client Assistance Fund means wrongful acts committed by a lawyer in the nature of theft or embezzlement of money or the wrongful taking or conversion of money, property, or other things of value, including, but not limited to, refusal to return unearned fees received in advance as required by Rule 1.16 of the Idaho Rules of Professional Conduct, or the borrowing of money from a client without intention to repay it, or with disregard of the lawyer’s inability or reasonably anticipated inability to repay it. If the dishonest conduct does not involve some wrongful taking of money or property, the claim is not compensable under the Client Assistance Fund and no funds will be distributed toward that claim. (I.B.C.R. 601).
Under the Rules of the Client Assistance Fund, “Loss” means the loss of money or property occasioned by the dishonest conduct of a lawyer occurring during the course of a lawyer-client relationship between the lawyer and the claimant. The following types of losses are not reimbursable:
- Losses of spouses, children, parents, grandparents, siblings, partners, associates, and employees of lawyer(s) causing losses;
- Losses covered by any bond, surety agreement, or insurance contract to the extent covered thereby; including any loss to which any bonding agent, surety or insurer is subrogated, to the extent of that subrogated interest; and
- Losses of any financial institution which are recoverable under a “banker’s blanket bond” or similar commonly available insurance of surety contract. (I.B.C.R. 601 and 604).
The Client Assistance Fund was created for a specific purpose and does not cover all monetary disputes between lawyers and clients. For example, “malpractice” is not necessarily “dishonest conduct.” The Fund may pay a claim for the theft of a client’s trust account funds but does not cover losses due to malpractice even when the client may suffer a monetary loss. See In re McFarland, 138 Idaho 603, 67 P.3d 82 (2003). Further, be aware that many malpractice insurance policies covering lawyers exclude coverage for conduct amounting to dishonesty. Before filing a claim, you should first determine whether the lawyer against whom you seek redress has malpractice insurance, and seek to obtain full compensation from that insurance policy. Filing a claim against the lawyer for dishonest conduct with the Client Assistance Fund may seriously affect any right to pursue relief against that insurance policy.
After a claim is filed and the Client Assistance Fund Committee determines that it is a recognizable claim under I.B.C.R. 601, et seq., the attorney is notified and requested to respond in writing 21 days. Written notice is then given to the claimant and attorney stating the date, time, and place of the hearing on the claim. Following the hearing, the Committee issues its findings and recommendations which are forwarded to the Board of Commissioners. Either party may file exceptions to the Committee’s findings and recommendations with the Executive Director of the Idaho State Bar who then forwards the entire record to the Board of Commissioners. After review, regardless of whether exceptions have been filed by the parties, the Board issues final findings and recommendations. Either party may seek a review of the Board’s final findings and recommendations by the Idaho Supreme Court. (I.B.C.R. 605).
Either party is entitled to have subpoenas issued on their behalf upon reasonable and timely request filed with the Executive Director of the Idaho State Bar. Discovery is permitted as provided by the Idaho Rules of Civil Procedure. (I.B.C.R. 615).
Assignment: If a claim is allowed, in whole or in part, and prior to payment of the claim, the claimant shall be required to execute a written assignment to the Fund of all rights of the claimant against the lawyer, or his or her estate, to the extent of the reimbursement authorized by the Fund. (I.B.C.R. 607).
Subrogation: In the event, the Fund authorizes payment in whole or in part of a claim, the Client Assistance Fund is subrogated to the amount of any such payment and may recover the same either by a suit against the lawyer or in the event of his or her death, insolvency, or disability, against his or her personal representative or other persons administering his or her estate. (I.B.C.R. 608).
A person wishing to make a claim for reimbursement must submit a notarized Client Assistance Claim Form to Bar Counsel’s Office of the Idaho State Bar. The Client Assistance Fund Claim Forms are available in PDF format. If you are unable to open and print the PDF version of the forms, contact Bar Counsel’s Office at (208) 334-4500 to request a copy by mail.