Amicus Update: MBA Applauds SJC Ruling On Unidentified IOLTA Funds

Thursday, Oct. 1, 2020
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From left: MBA Chief Legal Counsel Martin W. Healy, Thomas J. Carey Jr. and Francis C. Morrissey from the MBA worked on the amicus brief.

The Supreme Judicial Court, in a 6-1 ruling, has decided that unidentified client funds found in a lawyer’s Interest on Lawyers' Trust Account (IOLTA account) are not "abandoned property" and should remit to the IOLTA Committee instead of the state treasurer. The Massachusetts Bar Association, in conjunction with the Boston Bar Association and the Real Estate Bar Association for Massachusetts, filed an amicus brief in the case in January, which argued in favor of that outcome, citing the SJC’s authority to regulate the practice of law. The case is In the Matter of Gregory M. Olchowski (SJC-12730).

In deciding to weigh in on Olchowski, the MBA’s Amicus Curiae Committee was particularly concerned about the practical consequences for attorney-client privilege and the administration of justice if the unidentified client funds were allowed to be transferred to the state treasurer as abandoned property.

"The MBA thought this was an important case affecting the integrity the bar and the protection of the attorney-client privilege," said Thomas Carey, who chairs the MBA’s Amicus Curiae Committee. "We’re pleased with the decision, which we think strengthens the IOLTA program and helps ensure the continued involvement of the bar in protecting access to justice."

The underlying dispute involved unidentified client funds in the IOLTA account of Gregory Olchowski, a lawyer who resigned and was disbarred by the SJC in May 2013. Pursuant to the SJC's requirement that Olchowski close his IOLTA accounts and despite the Board of Bar Overseers' best efforts at identifying the owners of the client funds, Olchowski's attorney filed a petition before a single justice of the SJC to have the unidentified IOLTA funds remit to the Massachusetts IOLTA Committee. The state treasurer's office intervened, claiming that the unidentified funds should be treated as abandoned property under the state's Abandoned Property Act, M.G.L. c. 200A, and remit to the treasurer. After the Massachusetts IOLTA Committee intervened, Justice Scott L. Kafker, sitting as a single justice, reported the matter to the full bench to determine where the unclaimed IOLTA funds should go. 

SJC Chief Justice Ralph D. Gants, who wrote the decision for the majority before his death, disagreed with the treasurer’s argument, citing the risk that attorney-client confidences or attorney work product would be impermissibly disclosed. "We conclude that there is a better approach that is more protective of the confidential information so fundamental to the attorney-client relationship: where bar counsel determines after reasonable investigation that the owner of IOLTA funds cannot be identified or located, bar counsel should request the single justice of the county court to find that the funds are presumptively abandoned and to order the transfer of the abandoned funds to the IOLTA committee," he said.

Gants directed the court's standing advisory committee on the rules of professional conduct to propose amendments to Mass. R. Prof. C. 1.15 that would require agreements with financial institutions housing IOLTA accounts to notify bar counsel when there’s a two-year period of inactivity on an IOLTA account and also allow bar counsel to examine the unidentified funds to determine whether they’ve been abandoned and to try to locate the owner.

MBA Chief Legal Counsel Martin W. Healy, one of the authors of the amicus filing, said: "The SJC’s strong decision in favor of the IOLTA Committee will further help and support the administration of justice in the commonwealth. We’re especially pleased that the SJC identified the importance of protecting attorney-client confidences in these situations."

Francis C. Morrissey, who co-authored the MBA brief, said the decision will increase public confidence in the bar and lawyers, adding that he thought it was fitting that Gants, "who spent his whole career enhancing confidence in lawyers," wrote the majority opinion.

"The administration of orphaned funds almost always requires the review of client files and confidential information," Morrissey said. "This decision is important because it recognizes that all lawyers have a vital interest that any deprivation of client funds is mitigated to the greatest extent possible, and it furthers that aim by vesting the responsibility for administering orphaned funds with lawyers through Bar Counsel, the BBO and the IOLTA Committee."

SJC Justice David A. Lowy wrote a dissenting opinion, asserting that the majority opinion avoids a "lurking separation of powers issue." He argued that the court, instead, should remand the case to the Trial Court for a more complete factual record. "We simply need to know more before we meddle with the separation of powers, a principle that is the foundation of our constitutional system," Lowy wrote.