Use of abandoned accounts for legal aid urged
By Stephen Anderson
The ISBA Board of Governors and Assembly have renewed a two-pronged effort to protect abandoned funds in lawyers’ trust accounts for use in the provision of civil legal services to the poor by not-for-profit agencies.
The Assembly on Dec. 8 endorsed a recommendation from the Board of Governors that entails amendments to the Uniform Distribution of Unclaimed Property Act and the Supreme Court rule on safekeeping of property.
The ISBA Committee on Delivery of Legal Services first proposed the changes in 2003. After adoption by the Board of Governors, the amendment to the Unclaimed Property Act was filed in 2004 as Senate Bill 2195 but did not move in that session.
The proposal, which continues as part of the ISBA legislative package, would add the following language to 765 ILCS 1025/9: “This Act does not apply to abandoned funds held in a lawyer’s trust account established under Supreme Court Rules.”
If enacted, the amendment would prevent this type of fiduciary property, if unclaimed by an owner for more than five years, from escheating to the state’s general revenue fund.
Parallel to the legislative amendment is a proposal to amend Rule of Professional Conduct 1.15 that would divert abandoned lawyers’ trust account funds to the Lawyers Trust Fund of Illinois for appropriate distribution.
The draft language refers to property “held in a fiduciary capacity for seven years” during which there has been no contact with the client despite “adequate attempts” to do so.
The unclaimed funds would escheat “to the Lawyers Trust Fund or such other entity designated by the Supreme Court.”
The Committee on Delivery of Legal Services found the Supreme Court to be “a more suitable vehicle to determine the ultimate fate of abandoned funds because of its duty to regulate the practice of law.”
If a client reappeared after the seven-year period, the committee felt that the LTF would be better positioned to address a claim against the lawyer.
Judicial review clarified
The ISBA Assembly also added to the legislative package a proposal to amend the Administrative Procedure Act in regard to the naming of parties in judicial review.
The Illinois Supreme Court ruled in August in Ultsch v. Illinois Municipal Retirement Fund that a plaintiff’s claim for lost disability benefits was invalid because it named the retirement fund, rather than the fund’s board of trustees, as the defendant.
The ISBA proposal would permit an additional party to be added to a timely complaint within 35 days after a court finding, and that an agency’s final order contain the names and addresses of all parties of record to be named as defendants in judicial review.
The draft also suggests instructing the courts “to construe the act liberally in the interests of justice to grant an orderly method of judicial review of administrative agency decisions.”
The amendments to 5 ILCS 100/10-50 and 735 ILCS 5/3-102, 103 and 107 were drafted by Springfield attorney Carl R. Draper, the Board of Governors liaison to the Administrative Law Section Council.
The Civil Practice and Procedure Section Council and the Board of Governors supported the proposal unanimously.
New laws take effect
In his report to the ISBA Assembly on Dec. 8, legislative counsel Daniel L. Houlihan pointed out that two new public acts initiated by the state bar association were to become effective Jan. 1.
P.A. 95-374 (S.B. 454) amends the Marriage and Dissolution of Marriage Act to expand Section 503(g) trusts in family law cases to specifically authorize them for expenses incurred for the physical and mental health of a minor, dependent or incompetent child of the parties.
P.A. 95-237 (H.B. 304) amends the Health Facilities Planning Act procedure for requesting a certificate-of-need permit for a major medical facility or equipment, requiring that any finding of the Department of Public Health be made available for written responses at least 14 days before a meeting at which the request is considered.