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SJC-12730

IN THE MATTER OF GREGORY M. OLCHOWSKI.

Suffolk. February 11, 2020. - October 1, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.1

Board of Bar Overseers. Treasurer and Receiver General.

Attorney at Law, Disciplinary proceeding, Client funds.

Abandoned Property.

Information filed in the Supreme Judicial Court for the 

county of Suffolk on September 21, 2012.

A motion to remit funds, filed on October 18, 2018, was 

reported by Kafker, J.

Maureen Mulligan (Kristyn M. Kelley also present) for 

Massachusetts IOLTA committee.

Timothy J. Casey, Assistant Attorney General, for Treasurer 

and Receiver General.

Robert M. Daniszewski, Assistant Bar Counsel, was present 

but did not argue.

Michael J. Serduck, for the respondent, was present but did 

not argue.

The following submitted briefs for amici curiae:

Karen D. O'Toole for Massachusetts Clients' Security Board 

& another.

 

1 Chief Justice Gants participated in the deliberation on 

this case and authored this opinion prior to his death.
2

Jeffrey D. Woolf for Board of Bar Overseers.

Mary K. Ryan, Micah W. Miller, Martin W. Healy, Thomas J. 

Carey, Jr., & Francis C. Morrissey for Boston Bar Association & 

others.

Georgia D. Katsoulomitis, Jacquelynne Bowman, Jonathan 

Mannina, Elizabeth A. Soule, George Weber, Susan Nagl, Richard 

Dubois, Elizabeth Matos, John A. Froio, Jay McManus, Kathleen B. 

Boundy, Cathy Costanzo, & Janine Solomon for Massachusetts Law 

Reform Institute & others.

GANTS, C.J. The question presented in this case concerns

the proper disposition of unidentified client funds on deposit 

in an Interest on Lawyers' Trust Account (IOLTA or IOLTA 

account): should they be remitted to the Commonwealth's general 

fund under the abandoned property statute, G. L. c. 200A, or to 

the IOLTA committee pursuant to this court's inherent authority 

to govern the conduct of Massachusetts attorneys? We conclude

that trust funds on deposit in an IOLTA account do not fall 

within the statutory definition of "abandoned property" and 

therefore the disposition of these funds is not governed by 

G. L. c. 200A. We also conclude that unidentified IOLTA funds 

should be transferred to the IOLTA committee for disposition, as 

set forth in this opinion.2

 

2 We acknowledge the amicus briefs submitted by the Board of 

Bar Overseers; the Massachusetts Clients' Security Board and the 

Massachusetts Clients' Security Fund; the Boston Bar 

Association, the Massachusetts Bar Association, and the Real 

Estate Bar Association for Massachusetts, Inc.; and the 

Massachusetts Law Reform Institute.
3

Background. We recite the facts of this case as stated in 

the parties' joint statement of undisputed facts. On November 

23, 2012, this court issued an order temporarily suspending 

Gregory M. Olchowski from the practice of law. As part of this 

order, in accordance with our rules governing bar discipline and 

clients' security protection, Olchowski was directed to notify 

each of his clients that he had been suspended from the practice 

of law and could no longer represent them, to make all files 

available to clients, to refund fees not earned, to close every 

IOLTA, client, trust or other fiduciary account, and to disburse 

all client and fiduciary funds in his possession. See S.J.C.

Rule 4:01, § 17 (1), as amended, 426 Mass. 1301 (1997).

At the time of Olchowski's temporary suspension, he 

maintained two IOLTA accounts, one with Bank of America and one 

with Citizens Bank, which held a combined total of $29,927. 

Olchowski was unable to identify the owners of the funds in the 

IOLTA accounts, so Olchowski's accountant, a Massachusettscertified public accountant, undertook to try to identify the 

owners of the unidentified funds. However, the accountant was 

unable to discover the identity of any of the owners of the 

funds in Olchowski's IOLTA accounts.3

 

3 In May 2013, we issued a judgment disbarring Gregory M. 

Olchowski, retroactive to November 23, 2012.
4

On December 11, 2017, Olchowski's attorney notified the 

Office of Bar Counsel (bar counsel) that there were unidentified 

funds in Olchowski's IOLTA accounts. Subsequently, a financial 

investigator from the office examined Olchowski's IOLTA accounts

to try to determine the owners of the funds. Bar counsel 

obtained the records for the two IOLTA accounts from the office 

of Olchowski's former accountant and subpoenaed records from the 

two banks where the accounts were opened. After reviewing these

records, the investigator was unable to determine the owner or 

owners of the unidentified funds in either of Olchowski's IOLTA 

accounts.

While efforts were being made to identify the owners of the 

funds, Olchowski's attorney transferred the unidentified funds

from the IOLTA accounts into an escrow account. At the time 

briefs were filed in this case, the escrow account balance was 

$29,952, including the unidentified funds and twenty-five 

dollars deposited to open the account. Automatic withdrawals 

transferring monthly interest payments to the IOLTA committee 

continued to be made from this account.

In October 2018, Olchowski's attorney moved that the single 

justice order the transfer of the unidentified funds from 

Olchowski's two IOLTA accounts to the IOLTA committee. The 

motion was served on the director of the unclaimed property 

division of the office of the Treasurer and Receiver General
5

(Treasurer), and the director of the IOLTA committee. The 

Treasurer moved to intervene and requested that the funds be 

remitted to the treasury as "abandoned property" under G. L.

c. 200A. The IOLTA committee then moved to intervene and 

requested that the funds be remitted to it. Bar counsel took 

"no position on the issue of whether IOLTA funds whose owners 

cannot be identified . . . should escheat to the [Treasurer] or 

be remitted to the IOLTA [c]ommittee," but requested that it be 

notified of the existence of unidentified funds and have the 

opportunity to complete "any investigation and review it deems 

necessary" to determine whether the attorney responsible for the 

IOLTA accounts should be disciplined and "to ensure that the 

owners in fact are unknown."

The single justice reserved and reported the matter to the 

full court, stating that "[t]he ultimate question for the court 

to decide is where these particular unidentified client funds 

should go" -- either to the Commonwealth as unclaimed property 

or to the IOLTA committee. Additionally, the single justice 

noted that in answering this ultimate question, we would likely 

have to address three subsidiary questions: (1) "Do 

unidentified client funds on deposit in an IOLTA account fall 

within the statutory definition of 'abandoned property' under 

G. L. c. 200A?"; (2) "Does Mass. R. Prof. C. 1.15, [as appearing 

in 471 Mass. 1380 (2015),] or any other rule of this court, 
6

govern the disposition of such funds?"; and (3) "Are any 

constitutional issues raised by the parties' proposed 

disposition(s) of the funds?"

Discussion. 1. Supreme Judicial Court's superintendence 

authority over the practice of law. To address these issues, we 

first explain our governance of the bar and the practice of law. 

Among the inherent superintendence powers of the Supreme 

Judicial Court is the authority to govern the conduct of 

attorneys in the practice of law. See Collins v. Godfrey, 324 

Mass. 574, 576 (1949) ("It must now be regarded as settled that 

in the distribution of powers under art. 30 [of the 

Massachusetts Declaration of Rights] the ultimate power of 

general control over the practice of law by its own officers 

fell to the judicial department"). See also Opinion of the 

Justices, 375 Mass. 795, 813 (1978) ("As to attorneys admitted 

to practice before the courts of the Commonwealth, we retain the 

ultimate authority to control their conduct in the practice of 

law"). This superintendence authority includes determining who 

is qualified to be admitted to the bar to practice law, 

controlling the practice of law through rules of professional 

conduct, disciplining attorneys who violate those rules, and 

suspending and disbarring those attorneys who are no longer fit

to practice law. See Opinion of the Justices, 279 Mass. 607,

609–610 (1932) ("It is an inherent power of [the judicial] 
7

department of government ultimately to determine the 

qualifications of those to be admitted to practice in its 

courts, for assisting in its work, and to protect itself in this 

respect from the unfit, those lacking in sufficient learning, 

and those not possessing good moral character").

In the exercise of this superintendence authority, we have 

promulgated several rules, including S.J.C. Rule 3:07, as 

amended, 480 Mass. 1315 (2018) (Massachusetts Rules of 

Professional Conduct), which governs the conduct of attorneys;

S.J.C. Rule 4:01, which governs bar discipline, and establishes 

the Board of Bar Overseers (board) to adjudicate disciplinary 

matters and bar counsel to investigate and prosecute such 

matters; and S.J.C. Rules 4:04 through 4:06,4 which establish the 

Clients' Security Board to reimburse clients for losses arising 

from the misappropriation of funds by members of the bar acting 

either as attorneys or fiduciaries. In short, this court has 

established a series of rules that together govern the conduct 

of attorneys, provide for the discipline of attorneys who 

violate the rules of professional conduct, and protect clients 

from losses arising from defalcations by members of the bar.

 

4 S.J.C. Rule 4:04, as appearing in 482 Mass. 1301 (2019); 

S.J.C. Rule 4:05, as appearing in 482 Mass. 1303 (2019); and 

S.J.C. Rule 4:06, as appearing in 482 Mass. 1304 (2019).
8

2. IOLTA accounts. Rule 1.15 of the Massachusetts Rules 

of Professional Conduct governs the safekeeping of property 

entrusted to an attorney. An attorney in possession of "trust 

property," defined as the "property of clients or third persons 

that is in a lawyer's possession in connection with a 

representation," is required to hold it "separate from [his or 

her] own property," and deposit trust funds in a "trust 

account." Mass. R. Prof. C. 1.15 (a) (1), (b) (1).

An attorney must deposit trust funds in one of two types of 

interest-bearing trust accounts: (1) where, in the judgment of 

the attorney, the trust funds "are nominal in amount, or are to 

be held for a short period of time," the attorney must deposit 

trust funds into an IOLTA account; or (2) where the amount of 

money is more than nominal and is to be held for longer than a 

short period of time, an attorney must deposit the money into an 

individual trust account. Mass. R. Prof. C. 1.15 (e) (6). With 

an individual trust account, the identity of the beneficial 

owner should always be known because the account is held in a 

client's name, with all accruing interest paid to the client. 

Mass. R. Prof. C. 1.15 (e) (3), (6). But an IOLTA account is a 

"pooled account" that may hold deposits from multiple clients 

and third persons at the same time. Mass. R. Prof. C. 1.15

(e) (6). A bank holding an IOLTA account does not receive any 
9

identifying information about the client or third person whose 

funds may be pooled in the attorney's account.

Funds deposited into an IOLTA account may be retainers or 

advances paid by clients for legal fees that have yet to be 

actually earned by the attorney, client funds that are awaiting 

disbursement following judgment or a settlement, or third-party 

funds that are awaiting distribution, such as the funds 

distributed after a closing on the sale of real property. See 

Tyrrell and Casey, Managing Clients' Funds and Avoiding Ethical 

Problems, at 4-5 (Jan. 2018). Because an IOLTA account is 

"pooled," because the bank holding the account does not know to 

whom the funds in an IOLTA account belong, and because an

attorney is responsible to "promptly deliver to the client or 

third person any funds or other property that the client or 

third person is entitled to receive," Mass. R. Prof. C. 1.15

(c), an attorney is required to adhere to strict record-keeping 

and reconciliation requirements for an IOLTA account. See Mass. 

R. Prof. C. 1.15 (f). An attorney with an IOLTA account is

required to keep a ledger for each client matter that identifies 

every receipt or disbursement of trust funds for that matter, so 

that the attorney knows at all times how much money in the IOLTA

account is beneficially owned by each client and third person. 

See id. And the attorney is required to prepare a 

reconciliation report no less than every sixty days to verify 
10

the balance for each client and third person. See Mass. R. 

Prof. C. 1.15 (f) (1) (C), (E), (F).

Where an attorney fails to keep careful records and prepare 

periodic reconciliation reports, the risk arises that he or she

may not know who is entitled to the trust funds in an IOLTA 

account, and that the clients and third persons who beneficially 

own these funds will be deprived of them. Because attorneys are 

not routinely required to submit reconciliation reports to 

anyone, neither a bank nor bar counsel will immediately learn if 

an attorney has failed to keep proper records. In order to 

assist with oversight of attorney record-keeping, financial 

institutions accepting IOLTA deposits must agree to report any 

dishonored checks on IOLTA accounts to the board. Mass. R. 

Prof. C. 1.15 (h) (1). Because a dishonored check in an IOLTA 

account may reflect an attorney's failure properly to manage an 

IOLTA account, receipt of such notice may trigger an 

investigation by bar counsel into the attorney's management of 

his or her IOLTA account, and a request for account 

documentation and reconciliation reports as part of that 

investigation. See Mass. R. Prof. C. 1.15 (h).

When an attorney is suspended from the practice of law, 

disbarred, or placed in disability inactive status, or resigns 

from the bar during a disciplinary investigation, the attorney, 

among other obligations, must within fourteen days close every 
11

individual trust and IOLTA account, properly disburse or 

transfer all funds in those accounts, and refund any legal fees 

that were paid in advance but had not been earned. See S.J.C.

Rule 4:01, § 17 (1) (f), (g). And the attorney within twentyone days must furnish bar counsel with an affidavit attesting to 

compliance with these obligations and provide "a schedule 

describing the lawyer's disposition of all client and fiduciary 

funds in the lawyer's possession." S.J.C. Rule 4:01,

§ 17 (5) (c). If an attorney's poor record-keeping was not the 

impetus for bar discipline, an attorney's inability to identify 

the beneficial owners of IOLTA funds will become apparent when 

the attorney's IOLTA accounts are closed. Similarly, IOLTA 

funds may be unidentified where an attorney who is a sole 

practitioner is placed on disability inactive status, 

disappears, or dies, and has made no provisions for the transfer 

of IOLTA account documents and reconciliation reports, or for 

the disbursement of funds in an IOLTA account.

Where there are unidentified IOLTA funds arising from a bar 

disciplinary matter, bar counsel may conduct a forensic 

investigation to attempt to identify the owners of the funds, as 

happened in this case. Because the records in the custody of 

the bank holding the IOLTA account may not disclose the 

ownership of these funds, or the amount owned, bar counsel's 

investigation might require a confidential examination of the 
12

attorney's records, including privileged attorney-client 

communications and attorney work product. Where unidentified 

IOLTA funds arise from the death, disability, or disappearance 

of an attorney, and where no partner, executor, or other 

responsible person is capable of conducting the attorney's 

affairs, a single justice of the county court may appoint a 

commissioner to make an inventory of the attorney's files and 

protect the interests of the attorney's clients, which includes 

identifying the owners of the unidentified funds. See S.J.C. 

Rule 4:01, § 14 (1), as appearing in 425 Mass. 1318 (1997). The 

commissioner's examination of the attorney's files is 

confidential; the commissioner "shall not disclose any 

information contained in any files listed in such inventory 

without the consent of the client to whom such file relates 

except as necessary to carry out the order of this court to make 

such inventory." S.J.C. Rule 4:01, § 14 (2).

Where bar counsel or a court-appointed commissioner 

identifies the owners of previously unidentified funds in an 

attorney's IOLTA account, the funds are provided to their 

rightful owner, assuming the owner can be located. When the 

owner of funds cannot be identified, it can be inferred that one 

or more unknown clients or third parties who had entrusted funds 

to the attorney who was responsible for the IOLTA account have 

been deprived of funds that are rightfully theirs. Clients who 
13

can establish that they suffered losses arising from 

defalcations by members of the bar can seek reimbursement from 

the Clients' Security Board. See S.J.C. Rule 4:05, as appearing 

in 482 Mass. 1303 (2019). But where the true owner of IOLTA 

funds cannot be identified, he or she cannot be informed that 

the mismanagement of the attorney's IOLTA account might have 

caused him or her to suffer losses arising from an attorney's 

defalcation.

Under Mass. R. Prof. C. 1.15 (g), the interest on IOLTA 

accounts is distributed to the IOLTA committee, whose members 

are appointed by this court to oversee the operation of the 

IOLTA program. The IOLTA committee, in turn, disburses sixtyseven percent of all IOLTA-generated funds, net of expenses, to 

the Massachusetts Legal Assistance Corporation and the remaining 

thirty-three percent to "other designated charitable entities," 

in proportions ordered by this court, to improve the 

administration of justice and deliver legal services to those 

who cannot afford them. Mass. R. Prof. C. 1.15 (g) (4) (i). 

But neither rule 1.15 nor any other rule promulgated by this 

court declares what happens to the principal in IOLTA accounts

when a true owner cannot be identified.

3. Abandoned property law. The Treasurer contends that 

the disposition of unidentified funds in an IOLTA account is 

governed by the abandoned property law, G. L. c. 200A. The 
14

abandoned property law, first enacted in St. 1950, c. 801, "sets 

forth a comprehensive scheme governing the disposition of 

abandoned property." Biogen IDEC MA, Inc. v. Treasurer & 

Receiver Gen., 454 Mass. 174, 176 (2009). The legislative 

purposes of the law are threefold: "protecting true owners' 

rights, bringing additional revenues to the treasury, and 

providing a procedure for the transfer of abandoned property." 

Id.

The law requires every "person"5 holding presumptively 

abandoned funds annually to furnish the Treasurer with a report 

identifying the name and last known address appearing in its 

records of the owner of any presumptively abandoned funds of one 

hundred dollars or more, and transfer those funds to the 

treasury. G. L. c. 200A, §§ 7, 8A. Sixty days before filing 

the report, the holder of the presumptively abandoned funds must 

send a notice to the apparent owner of the funds, at the last 

known address in the holder's records, informing the owner "of 

the process necessary to rebut the presumption of abandonment." 

G. L. c. 200A, § 7A. If the owner does not timely come forward 

 

5 The statute defines "person" broadly to include "any 

individual, corporation, . . . trust, partnership, 

association, . . . savings bank, . . . national 

banks, . . . bank holding companies and bank subsidiaries." 

G. L. c. 200A, § 1.
15

to rebut the presumption, the funds are included in the holder's 

abandoned property report and transferred to the treasury.

Once abandoned property is reported and delivered, the 

Treasurer's unclaimed property division (division) takes various 

steps to reunite property with its true owner. The division 

manages an online database (findmassmoney.com) where individuals 

can search for abandoned property. The search tool displays, 

among other information, the apparent owner's name and last 

known address and the holder who reported the property 

abandoned. The division also publishes the apparent owners'

names in Statewide newspapers twice per year. Consistent with 

the statute's purpose to reunite property with its true owner 

whenever possible, there is no statute of limitations for a 

putative owner of abandoned property to make a claim to the 

treasury; a person making such a claim may do so "at any time" 

after the property has been surrendered to the Treasurer. G. L.

c. 200A, § 10 (a).

4. Application of the abandoned property law. Chapter 

200A would govern unidentified funds in IOLTA accounts only if 

such funds constitute "abandoned property" under the law.

"Abandoned property" is defined in G. L. c. 200A, § 1, as 

"property presumed unclaimed and abandoned pursuant to this 

chapter." For funds to be deemed "abandoned property" under 

c. 200A, they must satisfy two sets of statutory conditions. 
16

First, "the conditions for presumption of abandonment" stated in 

one of eight enumerated sections in c. 200A must "exist."6 G. L.

c. 200A, § 1A. Second, one of the four conditions in § 1A must 

be met.7 See id. As to the first set of required statutory 

 

6 The eight enumerated sections are G. L. c. 200A, § 3 

(abandonment of deposits of property); G. L. c. 200A, § 4 

(abandonment of security deposits); G. L. c. 200A, § 5 

(abandonment of instruments, documents, and money); G. L.

c. 200A, § 5A (abandonment of life insurance proceeds and the 

like); G. L. c. 200A, § 5B (abandonment of dividends, 

distributions, and interest in business); G. L. c. 200A, § 6A 

(abandonment of distribution due in liquidation); G. L. c. 200A,

§ 6B (abandonment of traveler's checks and other guaranteed 

instruments); and G. L. c. 200A, § 6D (abandonment of property 

payable from insurance company demutualization).

7 The four conditions in G. L. c. 200A, § 1A, are the 

following:

"(a) the last known address of the apparent owner is in the 

commonwealth as shown on the records of the person in 

possession of property;

"(b) no address of the apparent owner appears on the 

records of the person in possession of the property and

"(1) the last known address of the apparent owner is in the 

commonwealth, or

"(2) the person in possession of property subject to this 

chapter is domiciled in the commonwealth and has not 

previously paid the property to the state of the last known 

address of the apparent owner, or

"(3) the holder is a government or governmental subdivision 

or agency of the commonwealth and has not previously paid 

the property to the state of the last known address of the 

apparent owner;

"(c) the last known address, as shown on the records of the 

person in possession of property, is in a state that does 

not provide by law for the escheat or custodial taking of 
17

conditions, none of the designated sections specifically 

addresses IOLTA accounts, but the Treasurer contends that § 3, 

which concerns "deposits" of funds, applies to the unidentified 

funds in IOLTA accounts. We disagree. A careful review of this 

section reveals that attempting to apply § 3 to IOLTA accounts

would be the legal equivalent of trying to fit a square peg into 

a round hole.

Section 3 provides that a deposit of funds in a bank shall 

be presumed abandoned unless the "owner" within three years has 

"[c]ommunicated in writing with the person concerning the 

deposit," "[b]een credited with interest on a passbook or 

certificate of deposit at his request," or otherwise done some 

act with respect to the account, such as depositing or 

withdrawing funds, transferring funds, or engaging in some 

transaction regarding the account.8 Under § 3, the "owner" of 

 

such property and the person in possession of property is 

domiciled in the commonwealth or is a government or 

governmental subdivision or agency of the commonwealth; or

"(d) the last known address, as shown on the records of the 

person in possession of property, of the apparent owner is 

in a foreign nation and the person in possession of 

property is domiciled in the commonwealth or is a 

subdivision or agency of the commonwealth."

8 The full text of G. L. c. 200A, § 3, provides:

"Any deposit of property with a person having a residence 

or place of business in the commonwealth, or authorized to 

do business therein, together with the increments thereon, 

shall be presumed abandoned unless the owner has, within 
18

the funds in the account is the person named on the account who 

is also presumed to be the person who actually owns the funds in 

the account. In fact, the Treasurer's regulations define an 

"owner" as "[a] person or entity having a legal or equitable 

claim to abandoned property." 960 Code Mass. Regs. § 4.02

(2004). But with an IOLTA account, the attorney named on the 

 

three years next preceding the date as of which reports are 

required by [G. L. c. 200A, § 7]:

"(1) Communicated in writing with the person concerning the 

deposit; or

"(2) Been credited with interest on a passbook or 

certificate of deposit at his request; or

"(3) Had a transfer, disposition of interest or other 

transaction noted of record in the books or records of the 

person; or

"(4) Increased or decreased the amount of deposit; or

"(5) Owned other property for which clause (1), (2), (3) or 

(4) is applicable; provided, however, that the holder 

communicates in writing with the owner with regard to such 

property that would otherwise be presumed abandoned under 

this section at the address at which communications 

regarding such other property regularly are received; or

"(6) Had another relationship with the holder concerning 

which the owner has:

"(i) communicated in writing with the holder, or

"(ii) otherwise indicated an interest as evidenced by a 

memorandum on file prepared by an employee of the holder; 

provided, however, that if the holder communicates in 

writing with the owner with regard to the property that 

would otherwise be presumed abandoned under this section at 

the address at which communications regarding the other 

relationship regularly are received."
19

account is not the true owner of the funds; those funds are the 

property of the clients or third persons who entrusted those 

funds to the attorney. See Matter of Sharif, 459 Mass. 558, 565 

n.7 (2011). See also ZVI Constr. Co. v. Levy, 90 Mass. App. Ct. 

412, 419 (2016), quoting Phillips v. Washington Legal Found., 

524 U.S. 156, 164 (1998) ("the principal held in IOLTA trust 

accounts is the 'private property' of the client").

The bank has no way to learn the identity of the true 

owners of the funds, and therefore no way to provide them with 

the advance notice required under § 7A to prevent these funds 

from being deemed presumptively abandoned and included in the 

bank's report of abandoned property it must provide to the 

Treasurer under § 7. Additionally, § 7 (b) (1) requires the 

bank in its report to provide the name and last known address of 

"each person appearing from the records of the holder to be the 

owner of any property of the value of one hundred dollars or 

more presumed abandoned under this chapter," but the bank's 

records will reveal only the attorney's name and address, not 

the name and address of the true owner of the funds in the IOLTA 

account. Therefore, if IOLTA accounts could be deemed 

"abandoned property" under § 3, the true owners of these funds 

would not receive notice by the bank that the account was to be 

reported abandoned (that notice would go only to the attorney 

whose name is on the IOLTA account), nor be able to take one of 
20

the six listed actions in § 3 to prevent their IOLTA funds from 

being presumed abandoned by the bank.

The claims process established by the Treasurer to allow

true owners of presumptively abandoned property to claim those 

funds also does not fit the unique nature of IOLTA accounts. 

Under the Treasurer's regulations, "the original owner" of the 

funds is required to submit documentation in support of his or 

her claims. See 960 Code Mass. Regs. § 4.04(1), (2) (2004). 

But the usual required documentation, such as the monthly 

statement of the bank or the holder's certification, is not

applicable to an IOLTA account because these documents would not

establish a purported owner's beneficial ownership of the funds. 

The attorney named on the IOLTA account may make a claim on 

behalf of the true owner, but only if he or she is the "legal 

representative" of the owner, which is defined as an executor or 

administrator of an estate, a conservator or guardian, "or an 

authorized agent appointed in accordance with a properlyexecuted power of attorney." 960 Code Mass. Regs. §§ 4.02,

4.04(2)(b).

In short, the careful procedures established by c. 200A to 

identify presumptively abandoned funds, report and remit those

funds to the treasury, and allow the true owner of those funds 

to reclaim them by proof of ownership simply do not fit when 

applied to IOLTA accounts. This is not a criticism of the 
21

Legislature; there were no pooled IOLTA accounts in 1950 when 

the law was enacted, and although the law has since been 

amended,9 none of the amendments addresses the unique nature of 

an IOLTA account.10

 

9 See, e.g., St. 1958, c. 283; St. 1969, c. 377; St. 1975, 

c. 277; St. 1975, c. 608; St. 1980, c. 130, §§ 3, 4, 7; 

St. 1984, c. 458; and St. 2000, c. 198.

10 The IOLTA committee contends that G. L. c. 200A, § 3,

does not apply to IOLTA accounts because, under Mass. R. Prof. 

C. 1.15 (g) (2) (i), banks must remit interest to the committee 

no less than quarterly, so the account may never be presumed 

abandoned where G. L. c. 200A, § 3 (2), provides that a bank 

account is not to be presumed abandoned if the account each 

quarter has "[b]een credited with interest on a passbook or 

certificate of deposit at his request." This argument ignores 

the phrase, "at his request," which requires some act by the 

owner of the account (here, the attorney) to request the credit 

of interest. If the passive receipt of automatic interest 

payments was sufficient to show that a bank account was not 

presumptively abandoned, any bank account with an established 

automatic transfer schedule would never be considered abandoned 

under the statute nor ever be remitted to the treasury --

undermining the statute's aim to "provide a smooth and simple 

procedure for transferring such property into the state treasury

and out of the hands of those in unjust possession." Treasurer 

& Receiver Gen. v. John Hancock Mut. Life Ins. Co., 388 Mass. 

410, 423 (1983), quoting 1950 Senate Doc. No. 1, at 22. 

Moreover, the Treasurer's regulations reflect that an owner's 

property should not be deemed presumptively abandoned where "the 

owner maintains an active relationship with a holder with 

respect to any property of the same owner." 960 Code Mass. 

Regs. § 4.03(11) (2004). "Activity" is defined in the 

regulations as an "[a]ction taken by an owner with respect to 

his or her property which indicates that the owner intends for 

the property not to be presumed abandoned." 960 Code Mass. 

Regs. § 4.02. The passive receipt of interest is not an 

"activity" and is insufficient to rebut a presumption of 

abandonment.
22

The Treasurer seeks to fit IOLTA accounts into § 3 by

arguing, in the alternative, that the definition of "person"

holding unclaimed property who is required to report and 

transmit the property to the treasury is broad enough to include

the attorney responsible for the IOLTA account. It is certainly 

true that the definition of "person" under the abandoned 

property law is broad enough to include an attorney or law firm 

holding funds on behalf of a client or third person. See G. L.

c. 200A, § 1 ("person" includes "any individual" or 

"partnership"). However, in the context of § 3, this would 

require the attorney responsible for the account, and not the 

bank, to report to the Treasurer that the funds in an IOLTA 

account are presumptively abandoned where the client or the 

third person who is the beneficial owner of the funds has not 

communicated with the attorney for three years regarding the

funds. There are two problems with this alternative argument.

First, G. L. c. 200A, § 7, requires the "holder" of funds 

deposited in a bank that are presumptively abandoned to file a 

report based on "the records of the holder." There is nothing 

in the Treasurer's regulations or in the record to suggest that 

the Treasurer has informed banks that, with regards to IOLTA 

accounts, the attorney is the holder of the funds, not the bank. 

Under the Treasurer's regulations, "holder" is defined as "[t]he 

entity that has custody of abandoned property," which suggests 
23

that, at least with respect to bank deposits, the holder is 

expected to be an entity rather than an individual attorney. 

960 Code Mass. Regs. § 4.02. Nor is there any language in 

c. 200A or the regulations to suggest that there may be multiple 

"holders" of the same funds, and any such suggestion would be a 

recipe for confusion, because it would mean that multiple 

reports would be filed regarding the same abandoned funds. To 

be sure, law firms and legal service agencies at times have 

filed abandoned property reports regarding an IOLTA account with 

the Treasurer, but the vast majority of such reports are filed 

by banks. According to the director of audit and compliance for 

the division, as of December 1, 2019, 572 "IOLTA-type 

properties" were unclaimed in the abandoned property database, 

but only thirteen of the submitted reports were from law firms; 

one was from a legal aid organization.

Second, if the attorney responsible for an IOLTA account is 

deemed the "holder" of the account, the Treasurer or her agents 

"may at any reasonable time and upon reasonable notice examine 

or audit a holder's books, papers or other records to verify 

proper compliance with the reporting requirements of [c. 200A]." 

960 Code Mass. Regs. § 4.07 (2004). Section 3 cannot be 

reasonably understood to mean that, by opening an IOLTA account, 

which an attorney may be required to do under our rules of 

professional conduct, the attorney opens the door to treasury 
24

agents examining all of his or her books, papers, and other 

records, which may contain confidential client information, 

attorney-client communications, or attorney work product. 

Allowing that to happen in the ordinary course might result in a 

breach of an attorney's obligations to his or her client. See 

Commonwealth v. Perkins, 450 Mass. 834, 851 (2008) ("It is 

axiomatic that among the highest duties an attorney owes a 

client is the duty to maintain the confidentiality of client 

information" [citation omitted]); Mass. R. Prof. C. 1.6 comment 

2, as amended, 474 Mass. 1301 (2016) ("A fundamental principle 

in the client-lawyer relationship is that, in the absence of the 

client's informed consent or as otherwise permitted by these 

Rules, the lawyer must not reveal confidential information 

relating to the representation. . . . This contributes to the 

trust that is the hallmark of the client-lawyer relationship"); 

Mass. R. Prof. C. 1.6 (providing for protection of confidential 

client information).

We therefore conclude, given the incongruent fit between 

§ 3 and IOLTA accounts, that G. L. c. 200A, § 3, does not apply 

to unidentified funds deposited in IOLTA accounts. Where the 

Treasurer does not contend that any of the other seven 

enumerated sections in c. 200A apply to these funds, we conclude 
25

that IOLTA accounts fall outside the scope of the abandoned 

property law.11

5. Identification, investigation, and disposition of 

abandoned IOLTA funds. Our conclusion that c. 200A does not 

govern IOLTA accounts does not mean that there will be no 

process to identify abandoned funds in IOLTA accounts, to 

investigate bank and attorney records to determine the true 

owners of those funds, to restore the funds to those true 

owners, and to transfer any funds whose true owner cannot be 

identified despite diligent investigation. It simply means that 

we must put that process in place through our superintendence 

authority over the bar and the practice of law. We do so here, 

and direct this court's standing advisory committee on the rules

of professional conduct (standing committee) to propose 

amendments to Mass. R. Prof. C. 1.15 to incorporate the 

following guidance into our rule.

Just as a dishonored check in an IOLTA account is an 

indicator of a possible disciplinary violation by an attorney 

regarding his or her management of an IOLTA account, so, too, is 

the absence of any activity in an IOLTA account over an extended 

 

11 Because we conclude that the first set of required 

statutory conditions is not met, we need not address whether 

unidentified funds in IOLTA accounts meet the second set of 

required conditions in § 1A for the funds to be "presumed 

abandoned" under the statute.
26

period of time. We currently require lawyers to maintain IOLTA 

accounts only in financial institutions that agree to notify the 

board when a check is dishonored for insufficient funds. See 

Mass. R. Prof. C. 1.15 (h). See also Go-Best Assets Ltd. v. 

Citizens Bank of Mass., 463 Mass. 50, 60 (2012). Such 

notification permits bar counsel to investigate the attorney to 

determine whether the dishonored check arises from a 

disciplinary violation regarding the attorney's management of 

client funds, from financial mismanagement that could be 

remedied with appropriate guidance or supervision, or from a 

simple careless mistake. We shall now require similar 

agreements to impose an obligation on financial institutions to 

notify the board when there is no activity in an IOLTA account 

for more than two years, apart from automatic interest payments 

to the IOLTA committee.12 This notification will allow bar 

counsel, where appropriate, to conduct a forensic examination of 

the attorney's IOLTA account records, and other books and 

records, to ascertain whether the funds are abandoned and 

determine the true owner of any such funds so that they may be 

disbursed. In addition, such notice will allow bar counsel to 

 

12 This court's standing advisory committee on the rules of 

professional conduct, in proposing amendments to Mass. R. Prof. 

C. 1.15, may consider whether a different time period is more 

appropriate to accomplish our purpose for requiring such 

notification.
27

determine whether the prolonged inactivity of the account is a 

sign of possible disciplinary violations or financial 

mismanagement by the attorney.

Of course, bar counsel need not wait for two years of IOLTA 

account inactivity to examine whether there are presumptively 

abandoned funds in certain IOLTA accounts. As discussed supra, 

Supreme Judicial Court rules are already in place requiring an 

attorney who is suspended from the practice of law, disbarred, 

or placed on disability inactive status, or has resigned from 

the bar during a disciplinary investigation, to close every 

IOLTA account, disburse or transfer all IOLTA funds, and report 

to bar counsel the disposition of all such funds, which should 

reveal the existence of any unclaimed or unidentified funds. 

See S.J.C. Rule 4:01, § 17 (1), (5) (c). And where an attorney 

dies, disappears, or becomes inactive because of disability, and 

where no partner, executor, or other responsible person 

disburses or transfers the funds in the attorney's IOLTA 

account, a single justice of the county court may appoint a 

commissioner to identify the owners of the funds in the IOLTA 

accounts and disburse the monies. See S.J.C. Rule 4:01,

§ 14 (1). With vigilant bar counsel and commissioners, the 

number and dollar amount of unidentified IOLTA funds should be 

minimized.
28

But as this case demonstrates, there will still be 

unidentified funds in IOLTA accounts that, despite exhaustive 

forensic investigation, will elude all reasonable efforts to 

determine and locate their true owner.13 There are two 

reasonable alternative dispositions of these funds: the 

Commonwealth's general fund, where abandoned property within the 

scope of G. L. c. 200A is ultimately transferred pursuant to 

G. L. c. 200A, § 9 (e); or the IOLTA committee, where the 

interest on IOLTA accounts is transferred, which is in turn 

distributed pursuant to Mass. R. Prof. C. 1.15 (g) to entities 

that will deliver civil legal services to those who cannot 

afford them or improve the administration of justice. Some 

 

13 We are of course concerned about the 572 "IOLTA-type 

properties" currently unclaimed in the abandoned property 

database. It is unclear whether bar counsel was alerted to 

their existence before this litigation, or how bar counsel would 

otherwise be alerted to abandoned IOLTA accounts in order to 

begin an investigation or disciplinary proceeding. It is also 

unclear whether bar counsel has conducted, or will be able to 

conduct, investigations into whether the funds in these 572 

accounts are truly unidentified or simply unclaimed.
29

States have chosen the first alternative.14 Others have chosen 

the second alternative.15

Even though the disposition of these funds is not governed 

by c. 200A because IOLTA funds fall outside the scope of the 

abandoned property law, we recognize and respect the legislative 

purpose that all abandoned property be transferred to the 

general fund. We would, pursuant to our superintendence 

authority, transfer these funds to the general fund out of 

respect for that legislative purpose if funds deemed abandoned 

could never be claimed by their rightful owner. But such claims 

may be made, with no limitations period, and therein lies the 

rub.

If we were to determine that unidentified IOLTA funds 

should be transferred to the Treasurer, we would expect the

Treasurer to apply the same claims process to IOLTA funds, which 

fall outside the scope of c. 200A, as she applies to abandoned 

 

14 See, e.g., Alaska Bar Association Ethics Opinion No. 90-3

(1990); State Bar of Arizona Ethics Opinion No. 97-03 (1997); 

State Bar of Georgia Formal Advisory Opinion No. 98-2 (1998); 

State Bar of Michigan Ethics Opinion No. RI-38 (1989); 

Mississippi Ethics Opinion No. 178 (1990); N.C. R. Prof. C.

1.15-2(r); Washington Bar Association, Ethics FAQ ("What do I do 

with unclaimed trust account funds?"), citing Wash. Rev. Code 

§ 63.29, https://www.wsba.org/for-legal-professionals/ethics

/ethics-faqs#unclaimed [https://perma.cc/2R3H-GUFW].

15 See, e.g., Ark. R. Prof. C. 1.15(c)(1)-(2); Colo. R.

Prof. C. 1.15B(k); Ill. R. Prof. C. 1.15(i); La. R. Prof. C.

1.15(g)(7)-(8), (h); N.J. Court Rule 1:21-6(j); N.Y. R. Prof. C.

1.15(f); Pa. R. Prof. C. 1.15(v).
30

funds that are within the scope of c. 200A. Under that process, 

when someone claims an interest in property surrendered to the 

State, the Treasurer has "full and complete authority to 

determine all such claims" and, in doing so, may take testimony 

under oath, subpoena the attendance of witnesses, and subpoena 

the production of all "books, papers and documents which may be 

pertinent to such hearing." G. L. c. 200A, § 10 (b)-(c). This 

is precisely the type of inquiry that we are reluctant to 

relinquish to the Treasurer should a claim be made on 

unidentified IOLTA funds by an attorney's client. Attorney 

records concerning IOLTA accounts are necessarily intertwined 

with attorney-client confidences. Any such inquiry by the 

Treasurer poses the risk of impermissible disclosure of 

confidential client information, attorney-client communications, 

and attorney work product.

We conclude that there is a better approach that is more 

protective of the confidential information so fundamental to the 

attorney-client relationship: where bar counsel determines 

after reasonable investigation that the owner of IOLTA funds 

cannot be identified or located, bar counsel should request the 

single justice of the county court to find that the funds are 

presumptively abandoned and to order the transfer of the 
31

abandoned funds to the IOLTA committee.16 The transfer of these 

funds to the IOLTA committee, in order to avoid constitutional 

concerns, carries with it an obligation by the committee to 

return those funds to their true owner, with interest, if the 

true owner establishes ownership at any time. Therefore, we 

will revise our rules of professional conduct to memorialize 

that obligation after considering language recommended by our 

standing committee.17 Where such a claim is made, the 

investigation of its merits should be conducted by bar counsel, 

whose obligation to maintain the confidentiality of information 

arising from an investigation is already established by rule. 

See S.J.C. Rule 4:01, § 20, as amended, 438 Mass. 1301 (2002). 

 

16 Where the owner of the IOLTA funds has been identified 

but cannot be located, the Board of Bar Overseers shall publish 

the name on a webpage on its website to allow the missing client 

or third person to reclaim his or her abandoned funds from the 

IOLTA committee. Nothing in this opinion is intended to prevent 

the board from seeking the agreement of the Treasurer to include 

these names on her abandoned property website, with the proviso 

that any persons claiming ownership of such property will be 

referred to bar counsel for investigation.

17 The Treasurer does not allege that there is any 

constitutional bar to the transfer of funds to the IOLTA 

committee but instead contends that "constitutional problems 

could arise" under the takings clause of the Fifth Amendment or

under the First Amendment to the United States Constitution, if 

the transfer were deemed compelled speech. The Treasurer does 

not have standing to raise such claims, see Tax Equity Alliance

for Mass. v. Commissioner of Revenue, 423 Mass. 708, 715–716 

(1996), and in any event she recognizes that the weight of these 

claims is diminished if a claimant who can establish ownership 

of previously unidentified IOLTA funds will be able to recover 

those funds from the IOLTA committee, with interest, at any 

time.
32

Any dispute concerning the adjudication of ownership shall be 

resolved by the single justice.

Conclusion. In answer to the questions posed by the single 

justice in his reservation and report, we conclude that 

unidentified client funds on deposit in an IOLTA account do not 

fall within the statutory definition of "abandoned property" 

under G. L. c. 200A; that neither Mass. R. Prof. C. 1.15 nor any 

other rule of this court presently governs the disposition of 

such funds; and that such funds shall be transferred to the 

IOLTA committee for disposition under the conditions set forth 

in this opinion, which shall later be incorporated in revisions 

to Mass. R. Prof. C. 1.15.

So ordered.
LOWY, J. (dissenting). The court holds, without an 

adequate factual record to support it, that Interest on Lawyers' 

Trust Accounts (IOLTAs or IOLTA accounts) fall outside the 

abandoned property act (act), in part because the alternative 

would allow the Treasurer and Receiver General (Treasurer) to 

inspect attorneys' records in a manner that could allow the 

Treasurer to maintain and to investigate IOLTA accounts, as she 

does with other abandoned property. This, according to the 

court, would improperly risk "disclosure of confidential client 

information, attorney-client communications, and attorney work 

product," all of which fall under the attorney-client privilege 

governed by the judicial branch. Ante at . Because the 

court concludes as such, it avoids having to decide whether 

classifying orphaned IOLTA funds as abandoned property would 

impede upon the judiciary's authority under art. 30 of the 

Massachusetts Declaration of Rights to regulate the practice of 

law, or whether keeping unclaimed IOLTA accounts within the 

province of the judiciary would unduly interfere with the 

executive or legislative powers as outlined in art. 30.

I, on the other hand, believe that the plain meaning and 

legislative intent of the act require categorizing unclaimed or 

orphaned IOLTA funds as abandoned property, a conclusion that

prevents us from avoiding the lurking separation of powers 

issues. I therefore do not believe that we should draw any 
2

definitive conclusions from the bare factual record. Instead, 

we should remand to a trial court to develop a more complete 

record.

First, orphaned IOLTA funds, at least based on this limited 

record, seem to fit within the act's definition of abandoned 

property, specifically as intangible property, property on 

deposit in a bank, or, perhaps, as security deposits.18 See 

G. L. c. 200A, §§ 1A, 3, 4. Because IOLTA funds are deposited 

into "trust accounts" in a bank by attorneys operating on behalf 

of their clients in a fiduciary capacity, such funds facially 

qualify as abandoned property under the act absent some 

compelling factual or legal reason to the contrary. See Mass. 

R. Prof. C. 1.15, as appearing in 471 Mass. 1380 (2015). Aside 

from plain meaning, the Legislature intended the act to "set[] 

forth a comprehensive scheme governing the disposition of 

abandoned property," Biogen IDEC MA, Inc. v. Treasurer & 

Receiver Gen., 454 Mass. 174, 176 (2009), including "all kinds"

 

18 The Treasurer contended that IOLTA accounts fall within 

G. L. c. 200A, § 3, and the court cabined its analysis to that 

section of the act. In whole, G. L. c. 200A, § 4 states: 

"Subject to the provisions of section one A, any deposit of 

property made to secure payment for services rendered or to be 

rendered, or to guarantee the performance of service or duties, 

or to protect against damage or harm, and the increments 

thereof, shall be presumed abandoned, unless claimed by the 

person entitled thereto within three years after the occurrence 

of the event that would obligate the holder or depository to 

return it or its equivalent."
3

of unclaimed property "whose owner is unknown or had neglected 

to claim it during a specific number of years," Treasurer & 

Receiver Gen. v. John Hancock Mut. Life Ins. Co., 388 Mass. 410, 

412-413, 423 (1983). Whether one conceives of the owner as the 

attorney who opened the IOLTA account or the clients whose funds 

constitute the account, the legislative intent facially captures 

IOLTA accounts.

The court argues that "attempting to apply § 3 to IOLTA 

accounts would be the legal equivalent of trying to fit a square 

peg into a round hole." Ante at . Statutory interpretation, 

however, does not pursue a perfect fit when effectuating 

legislative intent, and some square pegs can fit into round 

holes. See Plymouth Retirement Bd. v. Contributory Retirement 

Appeal Bd., 483 Mass. 600, 604 (2019). To that end, the court 

contends that orphaned IOLTA funds do not qualify as abandoned 

property because the true owner is the client, not the attorney 

listed on the account, and the holder of the account, the bank, 

could not therefore notify the true owner in advance of deeming 

the property presumptively abandoned. See G. L. c. 200A, 

§ 7 (b) (1) (bank must report name and last known address of 

"each person appearing from the records of the holder to be the 

owner"); G. L. c. 200A, § 7A (if holder has accurate address of 

"apparent owner" of property presumed abandoned, then holder 
4

must send notice "of the process necessary to rebut the 

presumption of abandonment").

This apparent "square peg" actually fits quite nicely into 

the act, even though the statute does not define "owner," see 

G. L. c. 200A, § 1, because attorneys acting as fiduciaries have 

a "legal . . . claim to abandoned property" on behalf of their 

clients and therefore qualify as "owners" under the Treasurer's 

regulations.19 960 Code Mass. Regs. § 4.02 (2004). See Matter 

of Sharif, 459 Mass. 558, 565 n.7 (2011) (explaining ways that 

attorney must act as fiduciary for trust accounts). See also 

Biogen IDEC MA, Inc., 454 Mass. at 186-187 (in absence of clear 

statutory language to contrary, we must defer to Treasurer's 

regulations). Because the attorney is the owner of the IOLTA 

account, I am not convinced on this record that the bank could 

not comply with its statutory obligations to notify the owner in 

advance of reporting the IOLTA account as abandoned property.20 

See G. L. c. 200A, §§ 7 (b) (1), 7A.

 

19 I presume that, in the context of this case, Gregory M. 

Olchowski's counsel, who requested the transfer of the IOLTA 

account, would have legal claim to the property.

20 The court seems to recognize that attorneys acting as 

fiduciaries for IOLTA funds are owners of those accounts when 

refuting an argument made by the IOLTA committee that trustbearing accounts cannot qualify as abandoned property under the 

act. Under the act, earning interest rebuts the presumption of 

abandonment only "at his request," which, according to the 

court, "requires some act by the owner of the account (here, the 
5

Moreover, the regulations appear to account for 

circumstances where an attorney or other fiduciary may be the 

"owner" of an account that becomes abandoned for which the "true 

owners" of the funds, the clients, can file to reclaim property 

that was abandoned due to their fiduciaries' irresponsibility. 

See John Hancock Mut. Life Ins. Co., 388 Mass. at 426 ("The 

focus of the statute is to reunite the owners with their 

property, and therefore it is irrelevant that John Hancock does 

not own [or control] the property"). The Treasurer's 

regulations outlining the claims process note that only the 

"original owner" can make a claim by presenting certain 

documents, such as a "monthly statement, if applicable." 960 

Code Mass. Regs. § 4.04(2)(a) (2004). Although clients may not 

have documents, such as the specific IOLTA account information, 

they could still make a claim by presenting "other documentation 

as may be required by the [unclaimed property division] to 

substantiate the validity of the claim," since the Treasurer 

would likely recognize that those other documents were not 

"applicable." Id. Alternatively, the owner's "legal 

representative" may make a claim on behalf of the client. 960 

Code Mass. Regs. § 4.04(2)(b). The record shows that banks and 

law firms have transferred 572 IOLTA accounts to the Treasurer 

 

attorney) to request the credit of interest." Ante at note 10, 

quoting G. L. c. 200A, § 3 (2).
6

as abandoned property, but the record does not reflect the 

claims process to which clients with funds in those accounts 

have adhered. The existing framework seems capable of handling 

claims by the true owners of funds within IOLTA accounts.

The court next alleges that it would be improper for an 

attorney to be a "holder" under the act -- the individual who 

would have to file reports about presumptively abandoned 

property -- even though the statute's definition of a person who 

can hold property is broad enough to encompass an attorney 

acting as the fiduciary for IOLTA funds. See G. L. c. 200A, 

§ 1. The court worries that this would create an unmanageable 

scenario with multiple persons with statutory responsibilities 

as holders of one pool of property under the act. To the 

contrary, it is perfectly plausible that the bank would be a 

holder for the IOLTA account and the attorney would be a holder 

for the apportioned IOLTA funds within the account. In fact, it 

makes logical sense that responsible attorneys would report 

abandoned IOLTA funds to the Treasurer as abandoned property if 

they could not contact clients for three years, and that the 

bank would report the entire IOLTA account if it qualified as 

presumptively abandoned under the act. See 960 Code Mass. Regs. 

§ 4.02. Although the court claims that this scenario "would be 

a recipe for confusion," ante at , the factual record 

provides no indication of such confusion, especially considering 
7

that some attorneys and law firms have reported IOLTA funds as 

abandoned property. We simply need more information.

Even if I were to agree with the court's statutory 

analysis, my foundational concern about the inadequate record 

remains for the court's apparent primary concern: that the 

Treasurer might need to investigate attorneys' books to 

determine to whom the unclaimed IOLTA funds belong, see G. L. 

c. 200A, § 10 (b)-(c), or to ensure that attorneys complied with 

their requirements as holders. See 960 Code Mass. Regs. § 4.07 

(2004). The court raises the understandable concern that 

"[a]llowing [such an investigation] to happen in the ordinary 

course might result in a breach of an attorney's obligations to 

his or her client," ante at , but only hints at the secondlevel implication of that statement; allowing the Treasurer such 

access as the statute would require might invade upon the 

judiciary's art. 30 power to protect attorney-client privilege 

and attorney confidentiality as part of its power to regulate 

the practice of law.

Of course, the court does not need to reach whether those 

fears would come true, because its version of statutory 

interpretation keeps IOLTA accounts outside the realm of 

abandoned property and therefore out of the possible reach of 

the Treasurer. The court accordingly has no obligation to 

provide evidence that such breaches occur or that investigations 
8

by the Treasurer would impede upon our art. 30 authority. I 

view the matter differently.

Because I conclude that orphaned IOLTA funds qualify as 

abandoned property under the act, we can only keep the Treasurer 

from exercising her statutory obligations regarding those funds 

based on some interpretation of our constitutional authority to 

regulate the practice of law. We could hold that the act is 

unconstitutional as applied to orphaned IOLTA funds, or we could 

craft an alternative solution that gives the Treasurer control 

over the orphaned IOLTA funds without unduly impeding the 

attorney-client privilege. Either solution necessarily 

implicates separation of powers concerns, as both could 

interfere with the Legislature's and the executive branch's 

powers under art. 30. In sum, concluding that unclaimed IOLTA 

funds constitute abandoned property requires me to consider how 

the court's proposed solution, one that still might be 

constitutionally or statutorily permissible even though I 

determined that IOLTA accounts are abandoned property under the 

act, affects art. 30, and to consider whether it does so 

appropriately on the facts before the court.

Before we reach such a significant decision, I believe that 

we need a factual record to help answer critical questions 

beyond the bare joint statement of facts presented to the single 

justice. The record does not reflect whether investigating 
9

unclaimed funds in IOLTA accounts would necessarily violate the 

attorney-client privilege. The amicus briefs presented by the 

Boston Bar Association and others and by the Board of Bar 

Overseers (BBO) suggest that it does, but the factual record 

only explains that a financial investigator subpoenaed records 

from banks and examined records held by Gregory M. Olchowski's 

former accountant. There is no indication that the 

investigation necessarily pierced the veil of attorney-client 

privilege, which, if accurate, would lessen the art. 30 concerns 

for orphaned IOLTA funds constituting abandoned property because 

the Treasurer would not therefore be impeding upon the 

judiciary's art. 30 authority to regulate the practice of law.21

Moreover, there might be an alternative path that neither 

ignores the act's plain meaning nor imposes on or interferes 

with our art. 30 obligations, and that simultaneously respects 

the Legislature's and executive branch's powers. However, the 

parties only briefed opposing absolutes: the Treasurer claimed 

complete authority to investigate and to manage orphaned IOLTA 

 

21 As stated supra, the record notes that entities have 

transferred 572 IOLTA accounts to the Treasurer as abandoned 

property. The record makes no reference to whether the 

Treasurer has investigated these properties to determine the 

true owner and, if so, whether those investigations pierced the 

veil of attorney-client privilege. Moreover, the record does 

not reflect whether investigations into other types of abandoned 

property, such as trust funds or remainders of estates, which I 

presume are under the authority of the Treasurer, would also 

pierce the veil of attorney-client privilege.
10

accounts, no matter attorney-client privilege, while the IOLTA 

committee and Olchowski, who the court largely followed, put the 

power squarely with the judiciary. I agree with the court that 

it is possible that classifying IOLTA accounts as abandoned 

property could interfere with the judiciary's art. 30 authority 

to regulate the practice of law. On the other hand, mitigating 

that concern by following the court's chosen path, which would 

transfer abandoned IOLTA funds to the judiciary's control rather 

than to the general fund, or by ordering the Treasurer to 

respect attorney-client privilege could also offend art. 30 by 

unduly interfering with legislative or executive authority.22

We simply need to know more before we meddle with the 

separation of powers, a principle that is the foundation of our 

 

22 The court contemplates that someone will have to review 

attorney-client privileged materials to determine the true 

owners of the IOLTA funds, but it does not discuss any precise 

procedures for doing so beyond keeping the funds within the 

judiciary and having the BBO conduct an inquiry in a manner 

similar to how it assesses attorney accounts during disciplinary 

procedures. There may be alternatives. For example, it may be 

constitutionally permissible to require that the Treasurer 

transfer investigatory responsibilities to an agent of the 

judiciary, namely the BBO, if an examination of orphaned IOLTA 

accounts threatened to pierce the veil of attorney-client 

privilege. It also might be possible to maintain the privilege 

if the BBO hired outside counsel to conduct the review. It may 

even be possible to rely on an interpleader action, with the 

Treasurer and the IOLTA committee as nominal parties, so that 

the unclaimed IOLTA funds are deposited with the court until 

appropriate disposition of the matter. See Mass. R. Civ. P. 67, 

365 Mass. 835 (1974). Perhaps these ideas would not be possible 

or constitutionally permissible, but the parties understandably 

did not brief this matter.
11

constitutional system. I therefore dissent and recommend that 

we remand to the Chief Justice of the Trial Court for assignment 

of the case to create a more thorough factual record.