BBA Joins MBA and REBA on Amicus Brief Arguing Unidentified IOLTA Funds Should Go to the IOLTA Committee

Building on our 35-year commitment to the Massachusetts IOLTA program, and our mission to facilitate access to justice, the BBA today joined with the Massachusetts Bar Association (MBA) and the Real Estate Bar Association (REBA) in an amicus brief to the Supreme Judicial Court (SJC) that argues unidentified funds in IOLTA accounts should revert to the IOLTA Committee.

The case in question, In the Matter of Gregory M. Olchowski (SJC-12730 ), involves a disbarred attorney whose records did not identify who was entitled to the funds on deposit in his IOLTA accounts. When his own attorney moved, in keeping with past practice in similar instances, for authorization to remit these unidentified funds to the Massachusetts IOLTA Committee , the State Treasurer intervened to claim they should instead be treated as “abandoned property” within the meaning of M.G.L. C. 200A and escheat to the Treasury.

The case is now before the SJC, which posed questions for potential amici, including whether unidentified IOLTA funds fall within the statutory definition of “abandoned property” and whether the rule on safekeeping property (Mass. R. Prof. C. 1.15 ) governs the disposition of such funds.

In their brief, the BBA, MBA, and REBA argue that the Abandoned Property Act was never intended to address IOLTA funds, inasmuch as it was enacted decades before the creation of the Commonwealth’s IOLTA program in 1985 and has been amended several times since then to define when specific types of property are deemed abandoned, yet the Legislature has chosen not to bring IOLTA funds within that ambit.

Further, amici point out, on behalf of their respective members and the bar as a whole, that treating these funds as abandoned property would interfere with the practice of law by intruding on attorney-client confidences and jeopardizing the security of client information. This is because the Treasurer’s Office would have broad discretion to review attorney records related to IOLTA accounts holding such funds, yet, unlike the IOLTA Committee and the Board of Bar Overseers, lacks strong guidelines to protect against the disclosure of confidential information.

The BBA/MBA/REBA brief—drafted by former BBA President Mary Ryan and her Nutter partner Micah Miller , Tom Carey of Hogan Lovells, and Francis Morrissey of Morrissey, Wilson & Zafiropoulos—also places the power to regulate unidentified IOLTA funds squarely within the SJC’s inherent authority to regulate the practice of law, and highlights “the beneficial effects that turning even modest sums of money over to the IOLTA Committee will have on access to justice for all.”

As BBA President Christine Netski of Sugarman Rogers said, “The BBA and MBA jointly petitioned the SJC to create the Massachusetts IOLTA program decades ago, and this brief represents our continued dedication to its success on behalf of indigent people statewide.”

The SJC will hear oral argument in the case on February 11, with a decision anticipated by June.

Amicus Curiae means, literally, friend of the court. Since 1975, the BBA has filed amicus briefs  on matters related to the practice of law or the administration of justice. The 2019-2020 BBA Amicus Committee is co-chaired by Neil Austin of Foley Hoag LLP and Erin Higgins  of Conn Kavanaugh.