IOLTA and the Washington Legal Foundation Case
Lucas FigielAdapted by RWS
IOLTA?• Scheme that takes advantage of
bank regulations to generate significant revenue for legal service programs
• Purpose: – to provide services for the indigent – to improve the administration and
access to justice
Consumer Checking Account Equity Act in
1980• Federal banking restrictions relaxed
• Banks authorized to offer Negotiable Order of Withdrawal (“NOW”) accounts
• Operate like checking accounts
NOW Requirements:
• All interest must go to charitable purpose
• none of the funds in the account may belong to a for-profit corporation unless the designated charitable organization has the exclusive right to the interest
Before IOLTA• If net interest invested for client • If no net interest non-interest
bearing account– Banks benefit
After IOLTA• If net interest invested for client• If no net interest into IOLTA
– Public benefits when client cannot
IOLTA mandatory in IL• SC Rule 1.15(d) - all IL attorneys
must participate
• Mandatory jurisdictions generate more revenue
What goes into IOLTA?• Client funds that cannot earn net
interest – Either individually or pooled
• Targeted money:– Nominal client funds – funds expected to be held for a short
duration
Earnings• IOLTA generates over $140
million yearly nationwide
• Lawyers Trust Fund of IL – 2001 net IOLTA Income: $3,971,932
• Service Charges: $488,762• Handling Fees: $ 49,958
Comparison to LSC
• IOLTA funds come second to those distributed by the LSC
• LSC 2003 budget $329,300,000• Disbursed to Illinois
– 2003 - $11,737,172– 2002 - $11,737,172– 2001 - $11,711,351
Why client can’t realize net interest
• Administrative and banking expenses consume the interest that is earned
• Opponents contend that what couldn’t be earned before IOLTA is being earned now
Fund Usage• wrongful eviction• disabled children• domestic violence• educate the public about legal
issues• scholarships• clinical instruction to law students
Also used for…• controversial issues
– gay rights – legal aid to poor immigrants trying to
come to the US • 1st Amendment implications
Brown v. LFoWSupreme Court of Washington
LPOs- what are they?
Standing issue- bank services withdrawn?
Brown and Hayes are in the real estate business
Allen Brown $14,793.32 for 16 days interest estimated is $2.00
Greg Hayes $90,521.29 for 2 days and estimated interest is $4.96
5th Amendment Takings1) Private Property2) Taken3) For public purpose4) Without just compensation
Purpose of Takings Clause• Prevent the government from
forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole
Interest is client’s property?
• Circuit split settled by Phillips• Interest that accrues belongs to
the owner of the principal • Interest is created by client funds
and not the government
Property Taken?• Takings jurisprudence comes in two
flavors: – outright takings – permanent, physical
occupation of property or where the claimant is deprived of property’s economic or productive use
– regulatory takings - regulate how the property can be used
• Different tests applied
Test used to establish a taking
• Per Se – for outright appropriations and practical equivalent
• Ad Hoc – regulatory taking requires careful balancing1) degree of interference with complainant's investment-backed expectations;
none2) the severity of the economic impact on the complainant; and
minor3) the nature of the government's action
fair regulations in highly regulated industry
Proper Test?• Settled by Brown• Per se test - transfer of interest-
income to charitable beneficiary appropriates the principal’s beneficial interest in her property
For Public Purpose?• Easily satisfied
• compelling interest in providing legal services to millions of needy Americans
Without Just Compensation?
• Only uncompensated takings prohibited
• Put owner in same pecuniary position had property not been taken
• The loss must be pecuniary
Measurement • Measured by owner’s loss not
government’s gain
• If loss is zero then compensation due is zero
Held• (1) that just compensation is
measured by the net value of the interest that was actually earned by petitioners
• (2) by operation of the Washington IOLTA Rules, no net interest can be earned by the money that is placed in IOLTA accounts in Washington
IOLTA wins, but…• Whether IOLTA violates First
Amendment remains unanswered