SUPPORTING A MANDATORY INTEREST ON LAWYERS' TRUST ACCOUNTS PROGRAM

WHEREAS, a special blue-ribbon Task Force on Legal Services to the Needy of the Pennsylvania Bar Association conducted a comprehensive survey of unmet legal needs and concluded in 1990 that there was a severe and growing unmet need for essential legal services by the poor and near poor in this Commonwealth and that legal services were an essential part of the safety net that government must provide to its poorest citizens;

WHEREAS, ensuring access to justice is a matter of great social concern, and providing a network of full time, professional poverty law offices staffed by expert practitioners is essential to fulfill our society's pledge to provide equal justice under law and the constitutional right to due process;

WHEREAS, federal and state government funding of legal services for the poor has declined by more than 50% in real dollars over the past 15 years, despite a substantial increase in the number of people (especially children and the elderly) living in poverty;

WHEREAS, the Philadelphia Bar Association has for years advocated a return to the level of minimum access to justice (two lawyers for every 10,000 poor people) that was last reached in 1980, and will continue its vigilant efforts to fight for public funding of legal services by informing the legislatures of this need;

WHEREAS, the Philadelphia Bar Association has become increasingly concerned that, despite its best efforts and those of others, the Congress of the United States and the General Assembly of the Commonwealth of Pennsylvania may yet provide even less funding, under even greater restrictions, for legal services in the future, making it essential to identify other, supplementary sources of support for legal services;

WHEREAS, the Philadelphia Bar Association was a principal sponsor of Act 59 of 1988, by which the General Assembly created an opt-out Interest on Lawyer Trust Account (IOLTA) program, the revenues from which were to benefit legal aid programs across the state, including Community Legal Services here in Philadelphia, other organizations providing free legal services to the poor and disadvantaged, and bar foundations;

WHEREAS, IOLTA programs across the country (especially those mandating the participation by all attorneys) were challenged initially on a wide variety of theories, constitutional, statutory and ethical, and were uniformly upheld by federal and state judiciaries;

WHEREAS, since the enactment of Pennsylvania's voluntary IOLTA statute in 1988, the Philadelphia Bar Association has exerted herculean efforts to encourage all Philadelphia lawyers to open IOLTA accounts, with the result that Philadelphia has for the past three years generated substantially more IOLTA revenues than any other city or county in the Commonwealth of Pennsylvania;

WHEREAS, by resolution passed Oct. 24, 1990, the Philadelphia Bar Association Board of Governors adopted for this Association the goal of 100% participation by all eligible members of the Philadelphia legal community by June 30, 1992;

WHEREAS, in 1995, IOLTA generated $298,712 for CLS, $163,911 for our City's other public interest law firms, and $135,000 for our Philadelphia Bar Foundation;

WHEREAS, despite these efforts and clear success, only 2,773 of Philadelphia's 12,000 eligible lawyers are participating in IOLTA (as of Jan. 10, 1996), the level of participation by lawyers across the state is only 27%, and Pennsylvania's IOLTA program is far from realizing its potential;

WHEREAS, 26 other states have made participation in IOLTA mandatory for the lawyers in those states;

WHEREAS, the Supreme Court of Pennsylvania is currently considering whether to make participation in IOLTA mandatory for all attorneys in this commonwealth.

NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association urges the Pennsylvania Supreme Court to create a mandatory IOLTA program exclusively to benefit legal aid programs across Pennsylvania, other organizations providing free legal services to the poor and disadvantaged, and bar foundations supporting their good works, PROVIDED, HOWEVER, that no attorney or law firm shall be liable in damages nor held to answer for a charge of professional misconduct because of a deposit, or a failure to make a deposit, of moneys into an IOLTA account pursuant to a judgment made in good faith by an attorney that such attorney's funds were or were not qualified funds;

AND BE IT FURTHER RESOLVED that the Philadelphia Bar Association urges the General Assembly of the Commonwealth of Pennsylvania to preserve all IOLTA moneys generated thereby as a private-sector supplement to, and not a substitute for, the adequate funding of basic legal services that is the duty of government to provide for its poorest citizens.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: February 29, 1996