Lawyer FAQs for Undistributable Fund

You should review Massachusetts Rule of Professional Conduct 1.15 carefully, particularly subsections (h) and (i). Under Rule 1.15, when you learn you have unclaimed or unidentified funds in your IOLTA account, you must undertake reasonable and diligent efforts to locate the owners and remit the funds or, if the owners are not known, to identify the owners. Once you have made duly diligent efforts, you may transfer the undistributable funds to the IOLTA Committee at any time. You must transfer the funds to the IOLTA Committee three years after discovering they are undistributable.

You should try to find out why the owner is refusing to accept the funds, and document your efforts and the owner’s response. If after reasonable and diligent efforts, the owner is not willing or able to accept the funds, you may transfer the funds to the IOLTA Committee. You should indicate on the affidavit that the owner of these funds can be located but the funds cannot be disbursed.

You must complete an online affidavit and make an electronic transfer of funds from your IOLTA account to the IOLTA Committee. There are two affidavits: an affidavit for lawyers remitting $500 or less to the IOLTA Committee within a twelve-month period (“Safe Harbor Affidavit”) and a different affidavit for lawyers transferring more than $500 (“Over $500 Affidavit”) within a twelve-month period. Among other things, you must identify the owners of any unclaimed funds being transferred to the IOLTA Committee. Information regarding those owners will be published on a webpage maintained by the Board of Bar Overseers (BBO) to allow the owners to reclaim their funds from the IOLTA Committee. The affidavits and further instructions are available here: Unclaimed and Unidentified Funds.

In general, the affidavit to transfer undistributable funds should be completed by an attorney who is an authorized signer on the IOLTA account. If such an attorney cannot complete the affidavit, it can be completed by an “authorized agent.” The personal representative of a deceased attorney is an authorized agent. In certain circumstances, an authorized signer on the IOLTA account who is not an attorney, such as a firm office manager or bookkeeper, may be an appropriate authorized agent. If an authorized signer on the IOLTA account who is not an attorney is completing an Over $500 Affidavit, the affidavit should explain why there is no attorney who is able to complete the affidavit.

No, the IOLTA Committee will automatically share a copy of the Over $500 Affidavit with the BBO within 14 days.

Inactive IOLTA accounts are defined as accounts in which there have been no transactions other than the automatic accrual and disbursement of interest to the IOLTA Committee for at least two-and-a-half years. If you receive notice from your financial institution that your IOLTA account has been inactive for at least two-and-a-half years, you should review the notice carefully. Within six months, you must either disburse the funds and close the account if it is no longer needed or follow the financial institution’s instructions for reactivating the account.

If an inactive IOLTA account is not closed or reactivated within six months, the financial institution is required to send a notice to you and to the BBO. You must then either disburse the funds and close the account if it is no longer needed or notify the financial institution in writing that the account should remain open. Under Rule 1.15(h)(7), you must notify the BBO of whatever action you take after this three-year notice is issued.

If the account remains inactive for more than a year after the financial institution sends the three-year notification to the BBO, the financial institution will remit the balance of the IOLTA account to the IOLTA Committee and close the account.

It is important that your financial institution has your current contact information to ensure you receive these and other important notices.

You must notify the IOLTA Committee and the BBO and make reasonable and diligent efforts to assist the owner in reclaiming the funds. See Rule 1.15(i)(5).

The Board of Bar Overseers (BBO) publishes a list of known owners of funds that were transferred to the IOLTA Committee by attorneys. The BBO has a claims process for owners to apply to recover their funds. The list of known owners as well as the application form and more details about the claims process are available on the BBO’s website: Unclaimed IOLTA Funds - List (massbbo.org). If you do not see your name on that list, you should contact your former attorney for more information.

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