The objective of The Ethics and Professional Liability Bulletin is to keep legal professionals informed of recent developments and trends in the areas of legal ethics, professionalism, and professional liability.
July 7, 2021 – Effective April 12, 2021, Ohio Revised Code 169.01 created a new category of unclaimed funds called “Attorney Unclaimed Funds.” These are attorney-held funds that must be reported to the Department of Commerce Division of Unclaimed Funds. Attorney Unclaimed Funds include funds held in Interest on Lawyer Trust Accounts (IOLTAs) and Interest on Trust Accounts (IOTAs), as well as residual settlement funds under Ohio Revised Code § 169.01(L). Such funds will be available for use by the Ohio Access to Justice Foundation.
Funds are “unclaimed” if they are held by a “holder” as a fiduciary for the benefit of another for a certain length of time.[1] Under the new law, if the owner of the funds fails to respond to a holder’s efforts to remit the funds for three years after the final date the funds were available for distribution, those funds must now be reported to the Division of Unclaimed Funds using property code TR88.
Attorneys do not violate their duty of safekeeping a client’s funds under Prof. Cond. R. 1.15, nor the duty to protect client confidentiality under Rule 1.6, by reporting unclaimed funds. Under Prof. Cond. R. 1.15, attorneys have a duty of safekeeping funds of a client. Attorneys must hold a client’s funds separate from their own funds in an interest-bearing account, which can be either an IOLTA or IOTA, and keep detailed records for each client and bank account.[2] Attorneys also have a duty to promptly pay a client any funds the client is entitled to receive, except as permitted by law or by agreement with the client or authorized third party and confirmed in writing.[3] Any interest on the individual client trust account is for the client, and will not be remitted to the state. In the ordinary course of representation, an attorney will release client funds held in a trust account that the client is entitled to receive.[4] But if the client’s identity or whereabouts are not known, the attorney must report and then remit the funds to the Division of Unclaimed Funds.
Attorneys also owe their clients a duty of confidentiality under Rule 1.6. Providing the Division of Unclaimed Funds with the client’s name and the amount due to the client, after attempts to contact the client prove unsuccessful, does not violate the lawyer’s duty of confidentiality. This disclosure falls within the exception authorized by law per Rule 1.6(b)(6), which states: “A lawyer may reveal information relating to the representation of a client, including information protected by the attorney-client privilege under applicable law, to the extent the lawyer reasonably believes necessary for any of the following purposes: to comply with other law or a court order.”[5]
Attorneys still have a duty to report unclaimed funds and must now remit the funds to the Division of Unclaimed Funds using property code TR88. Unclaimed funds include all money, rights to money, or intangible property that remain unclaimed by their owners for a period of three years, and may include client funds held in an IOLTA or IOTA, or settlement funds held by an attorney, court, settlement administrator, or county auditor.[6] This means that the owner of the funds has not taken any action to indicate an interest in or knowledge of the funds.[7]
When unclaimed funds become dormant, they are eligible for reporting to the Division of Unclaimed Funds. Unclaimed funds become dormant when the owner of the funds has not generated activity on the account owed, accepted payment of funds, contacted the account holder about the funds, or otherwise indicated any interest in the funds within three years after the funds become payable to the owner.[8]
There is no minimum dollar amount to be remitted for Attorney Unclaimed Funds. Additionally, holders of these funds may remit them to the Division of Unclaimed Funds prior to the end of the three-year dormancy period so long as the holder has reason to believe that the funds will become reportable and satisfy the requirements of Ohio Rev. Code § 169.03.[9]
The Ohio Access to Justice Foundation has authorization to use Attorney Unclaimed Funds to support civil legal aid and access to justice initiatives in the state. But owners of unclaimed funds have a right to recover the funds, with interest, from the state at any time by filing a claim with the Division of Unclaimed Funds.[10]
Conclusion and Practical Takeaway. In addition to reporting and remitting unclaimed funds, Ohio attorneys must now remit unclaimed funds to the Division of Unclaimed Funds using property code TR88. Doing so does not violate an attorney’s duty of safekeeping a client’s funds, nor the duty to protect client confidentiality. The Attorney Unclaimed Funds will support civil legal aid and access to justice initiatives by the Ohio Access to Justice Foundation. This does not preclude the owner of unclaimed funds from filing a claim with the Division to recover funds from the state.
Ulmer’s Ethics & Professionalism and Professional Liability Practice Groups offer strategic advice to attorneys and law firms regarding their ethical obligations and defend them in critical matters involving disciplinary complaints, internal law firm disputes, and legal malpractice. With decades of experience handling these sensitive matters, Ulmer’s team of experienced attorneys helps clients confront these challenges so they can keep their focus on the practice of law. Please feel free to reach out to our attorneys if you have any questions.
The information provided in this bulletin speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this bulletin, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Alvin E. Mathews, Jr. at amathews@ulmer.com.
[1] Under the new law, unclaimed funds include “all moneys, rights to moneys, or other intangible property, and any income or increment on them, held or owed by a holder which is a fiduciary for the benefit of another, or a fiduciary or custodian of a qualified retirement plan or individual retirement arrangement under section 401 or 408 of the Internal Revenue Code, unclaimed for three years after the final date for distribution.” Ohio Rev. Code § 169.02(J); see also Ohio Board of Prof. Cond., Op. 2005-10, 3.
[2] Ohio Board of Prof. Cond., Op. 2008-03, 2; Ohio Prof. Cond. R. 1.15(a).
[3] Ohio Board of Prof. Cond., Op. 2008-03, 2, citing Ohio Prof. Cond. R. 1.15(d).
[4] Ohio Board of Prof. Cond., Op. 2008-03, 4.
[5] Ohio Board of Prof. Cond., Op. 2008-03, 6, quoting Ohio Prof. Cond. R. 1.6(b)(6) (emphasis in original).
[6] Ohio Rev. Code §§ 169.01–.02.
[7] Ohio Rev. Code § 160.01(B)(1); Ohio Board of Prof. Cond., Op. 2005-10, 3.
[8] See Ohio Admin. Code § 1301:10-1-01(P) (defining when funds become dormant and describing what constitutes “owner-generated activity” on accounts).
[9] “The holder of unclaimed funds under this chapter shall send notice to each owner of each item of unclaimed funds having a value of fifty dollars or more at the last known address of the owner as shown by the records of the holder before filing the annual report….” Ohio Rev. Code § 169.03(E).
[10] Ohio Rev. Code § 169.08; see also “Frequently Asked Questions for Claimants,” Ohio Dept. of Commerce, https://www.com.ohio.gov/unfd/ClaimantFAQ.aspx.