ClearCast Episode 14: Answering Your Questions Regarding Rob Graham
Jordan Flake: Hi, I’m Jordan Flake and I’m here with my partners Jared Richards, Jonathan Barlow. The three of us are the managing partners are Clear Counsel Law Group, and welcome to another ClearCast. Today we’re going to be talking about something that has kind of rocked the legal community. We’ve had friends and family who’ve asked us questions about this news story. Through this ClearCast and potentially others, we hope to respond to some of these questions we receive, but I’m referring to the Rob Graham issue. Rob Graham is an attorney here in town. He practices in the areas of guardianship, probate, trust administration. The allegations right now are that he stole money from his client’s trust account, basically that he misused that money. A lot of my friends and family have asked me, “What’s a trust account? How did this happen? Why can an attorney all of a sudden steal a lot of money?” The allegations are that he stole $13 million, potentially, of his client’s money is missing.
First of all, before we even get into those questions, we just roundly wholly 100% condemn any type of misuse, any type of unethical illegal access to clients’ funds. That should never, ever, ever happen and we’ll talk a little bit more about that. We all feel horrible and we spend a lot of time talking about the clients who are victims in this situation, and our heart goes out to them and their families. We’ll talk about that a little bit more too as well, that we feel really, really bad. It’s the worst possible way to spend the holidays, knowing that there was money that was being held and entrusted in an individual and now that money has essentially been stolen.
First, Jonathan, you’re the one who, in our firm, in the three of us, you take a little bit more of a lead role in managing the trust account. Can you talk to us and some of our viewers about what is a trust account and difference between a trust account and operating account, how that works. There’s a chance that people viewing this may actually be our clients and have money in our trust account right now and they’ll want to know what’s going on.
Jonathan Barlow: What we’re doing. In short, there’s two types of accounts that a law firm generally holds. One is what we call the operating account. That’s money that we’ve earned. It’s our law firm’s money. We’ve earned it through fees, through clients paying us money to perform our services. That’s our money as a law firm. We use that to pay our employees, we use it to pay our rent, and all the other expenses of operating the law firm. That’s our operating account.
The story about Rob Graham doesn’t really have to do with his operating account as far as the missing funds. What the missing funds came from was that second type of account that’s called a trust account. A client trust account. Attorneys in various types of practices will have a reason to be holding money in a bank account that is not our money. For instance, just like Mr. Graham did probate work, we do probate work. That’s when a deceased individual leaves behind assets that need to go through a process before they’re distributed to the heirs. In doing that probate work, we’ll collect a bank account. We’ll close a bank account that the deceased individual had and we’ll bring that money and deposit it to our client trust account.
Though that account at the bank is held with our law firm’s name on it, it’ll say “Clear Counsel Law Group” on the account statement as a designation IOLTA interest on lawyers’ trust account, it’s not our money. It’s not ours. We are responsible to ensure that it goes to the right places, that it’s applied appropriately. We are strictly prohibited from reaching into that client trust account and using it to pay anything other than the client’s expenses.
Jordan Flake: Let me just stop you there and make sure that everybody’s understanding. Grandpa John passes away and there’s a bank account just in his name at Wells Fargo. There’s $48,000 in that account. We get a probate started and we can go and we can liquidate that $48,000. We can’t turn around and use that $48,000 to pay our employees, to buy Christmas presents for our family. We can’t do anything like that because it’s actually the family that Grandpa John left behind, that’s their money we’re just holding in trust. Can I shift over here to Jared? Jared does personal injury. Can he talk to us a little bit about the mechanics of a trust account in the personal injury context?
Jared Richards: Right. In a personal injury context, we go and we gather money for an injured person. When we gather the money, we put it into our trust account. Again, the moment it hits the trust account, it is somebody else’s money. We then are responsible for making sure that that money goes to the right places. The money will often need to go to pay for medical providers. Sometimes it’ll need to go to pay back, say if Medicare or Medicaid had paid medical bills. Sometimes that happens and we have to repay the government. Then we have to pay our clients. Out of that, we also get paid a fee.
At the end of a case, when we are going to distribute money, before we distribute money to ourselves for certain, we will send the client an accounting so the client knows where all the money went, where if we had to advance money for filing fees with the court or to pay to go depose another party’s expert and we advance that money, we also account for that money when we get paid back for that amount. At the very end of the case, the client knows where every penny has gone and then gets the money that the client deserves.
Jordan Flake: There’s a $50,000 vehicle insurance policy, $50,000 policy. You make a demand and say, “Hey, insurance company, your guy, your insured hit Tommy, our client.” We give us the $50,000 and we hold that in trust because Tommy has medical bills that need to be paid out of that purse.
Jared Richards: Right. For example, as you said, let’s say that Tommy got hurt and there’s a $50,000 insurance policy. We make a demand on the insurance. The insurance company agrees and they pay $50,000. That $50,000 would go into our IOLTA trust account, the trust account we hold for clients. We then do an analysis of are there medical bills that need to be paid out of that account? Are there contractual obligations that our client has that we need to honor in that account?
Jordan Flake: If we just gave that money to the client …
Jared Richards: Then it would be a problem because then we may be breaching the client’s contractual obligations. We may be breaching our own contractual obligations, and we may actually be violating the law that require us to, say, pay back Medicaid.
Jordan Flake: Right, and if we use that $50,000 to run off and pay our own expenses …
Jared Richards: Then we’ve got major problems. We’ve just stole the money.
Jonathan Barlow: Then a similar issue related to that is several law firms have several different actual trust accounts with different account numbers. We hold all ours in one account. We got Mr. Jones’s money in there, we got Ms. Smith’s money in there. It’s all in there. Just like we can’t use the trust account to pay our expenses, I can’t use Mr. Jones’s money to pay Ms. Smith’s medical bills for her case.
Jordan Flake: Which is why from an accounting standpoint we have sub-accounts that we keep track of who has what share of that account.
Jonathan Barlow: What we do is we have every single case that we have, every single client that we have, we separately distinguish, this is their money, this is where it went, this is where it’s going. Because I can’t dip into this account or this person’s money to pay the other person’s money. That’s essentially how a trust account works until it’s determined, like Jared said in the personal injury context, this is where all the money’s going. Similarly, we do that in the probate or trust context of determining where it’s going to be distributed.
Jared Richards: We’re all very careful to not make mistakes. However, if the attorney does make a mistake with that money, the attorney is personally responsible for that money. While that money is in the attorney’s trust account, that attorney’s on the hook for all of it.
Jordan Flake: Right, and that’s been my experience since starting our law firm, is that when we have our trust account checks and I’m signing a check and that check’s going out the door, I look at that and I say, “Am I sure that this money is money that is under the law ready to be legally paid out?” There’s no other considerations here, because if I did send out a check that I shouldn’t have sent out, then I personally am on the hook for that. I would go to Jonathan and I’d say, “From operating account you need to reimburse this client because we mismanaged some trust funds and we need to put it back immediately.” If that ever happened.
Jared Richards: Not that that does happen because we’re careful, but if it were to happen, that’s exactly what would happen.
Jonathan Barlow: In the Rob Graham context, one of the big questions is it’s $13 million, and that’s a significant and sizable trust account.
Jordan Flake: Clear, I’m going to lawyer this one. To be clear, we don’t know. We don’t have any personal knowledge about what went on with Rob Graham. We just read the same newspapers everybody else does and we hear the same allegations. When people are hurting and they lost their money and it appears that an attorney abused a position of trust, we’re all human first and we are rabid and we want justice, but Jared, I think what you’re getting at is facts are going to come in and we need to be careful.
Jared Richards: The allegation is right now that he stole $13 million, and if that’s true, then [crosstalk 00:09:56].
Jonathan Barlow: My only point is the price tag is shocking, the amount.
Jared Richards: It’s a huge amount.
Jordan Flake: What is alleged to have happened here, if you guys want to go into that at all? Did Rob Graham one day open up his online trust account and see that there was $13 million and think, “Okay, this is my chance to write a check to myself?” What’s the allegations say?
Jared Richards: I think that what happens in situations like this, you have two possibilities. Either the attorney makes a conscious decision to liquidate the entire trust account and run away with it, which I don’t know of any actual incident where I’ve heard that happening, but I’m sure it has happened before. I think that the allegation here is that Rob Graham was not running as efficient and as successful as a business as he wanted to project, and that he was using client money to supplement his own business, his own money, which is just as illegal and just as wrong. It’s just a slower and more slippery slope.
Jordan Flake: So there wasn’t a $13 million check?
Jared Richards: Probably here. We don’t know.
Jonathan Barlow: I don’t think that’s the allegation. I think the allegation right now is that over the course of time, he started dipping into some client funds and then continue to dip in to try to make that right. Sort of a Bernie Madoff type of a transaction.
Jordan Flake: Ponzi scheme.
Jonathan Barlow: Almost a Ponzi scheme.
Jordan Flake: Almost, where he’s using the money that’s there today to meet those obligations.
Jonathan Barlow: Exactly.
Jared Richards: And hoping that the money tomorrow will come in to pay yesterday’s obligations.
Jordan Flake: The money that he’s waiting to have come in through the door in this situation appears to have not been his money, and that’s the major, major problem. If we’re just running all of our expenses out of the operating account, that’s business. That’s just the way it’s done. If an attorney were to ever dip into the trust account and say “I need to make payroll this month. Shoot. I only have $15,000 in my operating account and I have $4 million in my trust account. I could use some of the $4 million to pay my payroll since I don’t have enough in my operating account.” That’s kind of what might have happened here.
Jonathan Barlow: Who knows if thinking, “I’ll pay it back.”
Jordan Flake: I’ll make it back and I’ll …
Jared Richards: The only difference between the allegation of him stealing all $13 million in one fell swoop or him dipping in month after month for a number of years is the dipping month after month, we can more humanize it, but it doesn’t make it any less wrong.
Jordan Flake: Right, because the end result is the same, which is a tragedy of thinking, “My Grandpa John died. He had $48,000 in his Wells Fargo account. We hired Rob Graham to go and liquidate that $48,000 account and we were going to split it up three ways.”
Jared Richards: Exactly.
Jordan Flake: “We were hoping to be done around the holiday season so we could all have that extra money to go out and buy Christmas gifts or whatever for our family.” Now that money’s gone. That’s horrible.
Jonathan Barlow: It’s devastating.
Jordan Flake: It’s devastating to the families.
Jonathan Barlow: There’s a couple other allegations that raise points that are red flags in the way that a lawyer handles his trust account. Apparently, according to allegations, it appears that Mr. Graham was the only person at his office who really controlled the trust account, who had any access, knowledge of the trust account. That sure makes it easier to hide some things that you don’t want other people to know about. One good protection, and particularly with the three of us here, is to have multiple people who have control of the trust account, who have eyes on the trust account, and who review that trust account and realize, “What’s this payment coming out?” And can question those things if necessary. That’s been a good thing for us, is that the three of us can have that equal access to it, equal control over it. Heaven forbid one of us try to do something wrong. You have two people who are going to watch over it.
Jared Richards: Exactly. You have at least multiple partners that have oversight that can track it. Also, something that we do that I think more firms ought to do is we have a bookkeeper that is the employee of a separate accounting firm who helps us keep track of our books. If there are abnormalities that happen in the books, the bookkeeper would be alerted and the partners would be alerted. Those two things are safeguards: multiple partners with oversight, and somebody outside the firm that’s connected to a separate accounting firm that has oversight as well.
Jordan Flake: To that point, you have the bookkeepers keeping their books and we’re keeping our books and they have to match up every single time. That’s all done internally. One of the problems with the Rob Graham case, the allegation is that his mother-in-law was the bookkeeper, and so those conversations and those huge red flags that needed to pop up in this context apparently never did.
Jonathan Barlow: Right. If our books that we keep here on my computer don’t match with the accountant’s books, then we make the correction as necessary.
Jordan Flake: Do either of you expect to see more regulation from the government or the state bar? State of Nevada, or the state bar?
Jared Richards: The problem is that from time to time, you will hear the Nevada bar reprimand somebody for overdrawing their trust account. Because any bank, the rule is the banks, if they hold attorney trust account money, if the check bounces, if the account is overdrawn, the bank is required to notify the state bar so the state bar can do an investigation as to why. The shocking part of Rob Graham is yes, it appears that he may have stolen some money. I know, I’m a lawyer, I’m being all cautious. That’s why they’re smiling. Because we don’t know. The allegations may have some …
Jonathan Barlow: It’ll come out.
Jared Richards: Yeah, the allegations will come out and the facts will come out in their own due course. The two things that are utterly shocking about this case is the size of the alleged theft and the prominence of the attorney. In the probate estate planning community and those people that watch, I can’t remember what news channel Rob advertised on, but Rob Graham’s a known name. We all know the name. Between those two things of a large amount stolen by a noted, prominent attorney, it may jar the rule makers into making more rules.
Jonathan Barlow: I wouldn’t be surprised, really, to see something else change. Really, the only time that the state bar, and this is why I think there probably will be some changes, the only time the state bar will come and look at your client trust account and make sure to get a truly outside from the government or state bar or whatever, is if there’s a complaint made against one of our attorneys, that doesn’t even necessarily have to do with a client trust account. Say one of our attorneys messed up a case. Client gets upset and they file a complaint with the state bar.
Jordan Flake: I’m going to lawyer that one too. We don’t do that.
Jonathan Barlow: Right, it hasn’t happened because we haven’t ever been audited. Anyhow, in the context of the state bar coming in to investigate, “Why’d you mess up this guy’s case?” They will audit the book at the same time.
Jordan Flake: Just as a matter of course.
Jonathan Barlow: As a matter of course, almost. That’s about the only time that they independently come in to audit books. I wouldn’t be surprised to see some audit requirements coming out of this.
Jared Richards: The problem you have with that is the sheer number of attorneys out there handling [crosstalk 00:18:06].
Jonathan Barlow: Trust accounts, yeah. It’s a monumental task.
Jared Richards: It would be a monumental task to send in auditing standards for everybody.
Jordan Flake: Right, but if that task is necessary to restore the community’s faith in our profession, which is one of the goals of the state bar, then they’ll have to do it.
Jonathan Barlow: One of the good things to that point is what’s happening with Rob Graham’s client. As discouraging as it was to see a very prominent name like this happen, we have observed the rest of what we call the probate bar. The other probate attorneys have rallied around this issue, not to pour dirt on Mr. Graham’s grave, but to try to get his clients back to where they need to be. That was primarily led initially by Jason and Brandy Cassidy, excellent probate attorneys here in town, who took the initial task of .. What the state bar’s asking them, “Cassidies, would you do this?” They took those client files and they’ve been trying to sort through those files. They’ve done an excellent task of doing that. Now, I’ve seen multiple attorneys who have offered to help and who will be probably taking on some of those cases, including our law firm. We’ll be taking on a large handful of these cases to help them move forward.
Jared Richards: With the understanding that the money for those cases already seems to have been embezzled.
Jonathan Barlow: Almost in every case, the attorneys will be doing that pro bono, including our firm. Meaning without payment.
Jordan Flake: Without payment. You’re right. This is just a small silver lining on this sad story, but it is nice to see that the attorneys all recognize how wrong this is and what a tragedy it is for the clients involved, and to the extent possible we’re trying to mobilize our resources, and especially good shout out to Jason and Brandy Cassidy, who are really taking on the bulk of that project, and we’re all here to help. Any last closing thoughts on this from either of you? On this whole situation and what you would want to tell our viewers.
Jonathan Barlow: It’s shocking to see a story like this. It shocked us to see a story like this about an attorney. It’ll shake confidence. A lot of people don’t have good opinions of attorneys in the first place, so it’ll certainly shake some confidence of them. If there’s any hope behind this, is the fact that this is such a rare occurrence. I’ve been practicing 10 years and nationwide, this is the first story that I’ve seen of this size or nature. Just happened to happen in our backyard with somebody we know. It’s such a rarity to see something like this happen that you can take some comfort in knowing there’s a lot, 99.9% of the attorneys out there are doing this the right way, including our firm trying to do the right way the best we can.
Jordan Flake: Great, any last thoughts?
Jared Richards: No, I think Jonathan covered it.
Jordan Flake: I think the only last thing I’d say is really with any regulations, the biggest and best regulation is just be extremely trustworthy. To know why we’re doing this and to know that there are real people, our clients are real people and that they deserve trust, respect, and especially when it comes to valuable assets and things of that nature. Thanks so much for joining us for ClearCast. If you have any thoughts on this ClearCast, please link us, comment us, ask us any questions. If you would like to see us answer questions in a future ClearCast, please let us know. Jonathan, Jared, thanks so much for joining us today and we’ll see you next time.