# Matter of Public Law No. 154-1990

> Indiana Supreme Court · November 2, 1990 · 561 N.E.2d 791

URL: https://www.frixlaw.com/law-library/cases/9745110

## Case

- **Full name:** In Re the Matter of PUBLIC LAW NO. 154-1990 (H.E.A. 1044)
- **Court:** Indiana Supreme Court
- **Decided:** November 2, 1990
- **Citations:** 561 N.E.2d 791; 1990 Ind. LEXIS 210; 1990 WL 169460
- **Precedential status:** Published
- **Opinion:** Concurrence by Pivarnik
- **Judges:** Dickson, Givan, Pivarnik, Shepard, Debruler
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9745110

## Opinion text

PIVARNIK, Justice,
concurring.
I concur in this opinion. A very important and meaningful structure of our government is its composition of three branches of separate but equal powers, each having its own area of assigned duties and responsibilities. It is imperative that each of those branches attend to its assigned responsibilities in a vigilant manner to insure that society is served and protected in the way it expects to be, not for the purpose of "protecting turf" but so that branch might act properly and responsibly. Clearly the constitution of Indiana gives exclusive province of this Court to the regulation of professional legal activity. The judicial branch of our government is composed of, managed by, and regulated exclusively by members of the legal profession -lawyers. Therefore, we have the very sensitive responsibility of managing and policing ourselves as members of an honorable profession at the same time acting in behalf of all of the citizens as trustees of the third branch of government. To give members of our profession a blank check of immunity from discipline as well as civil and criminal liability in the handling of large amounts of money coming from the funds of our clients, as provided in Ind. Code § 38-20-2-1 , would be to abdicate from this sensitive responsibility and authority placed in our trust and be nothing less than irresponsible. It would be equally irresponsible to either sanction such action by the legislature or to undertake to so provide by our own order.
Indeed, the very serious problems with this entire proposed project is that by its very structure lawyers taking part in it will cause interest money accruing to funds of their clients to go to others over whom they have no control. That is, onee the money is placed in the lawyer's trust account that lawyer has no knowledge, authority, or control over the use of that money. The bank is obliged to transfer the funds to the board or commission provided for and all discretion and authority as to its disbursement is in the hands of that board or commission. Though there are guidelines provided for in the statute for the use of these funds, such guidelines are very general, giving wide discretion for the most part and containing troubling provisions in its more specific parts. For example, see-tions 9 and 14 of the Act provide for the disbursement of money from the fund as follows: after July 1, 1998, up to fifteen percent (15%) toward "administrative costs" (including payments to board members and employees); ninety percent (90%) of the remaining funds to provide "legal assistance" to "eligible clients" and the remaining ten percent (10%) to "programs *795 or projects in the public interest that assist in the improvement of the administration of justice," including guardian ad litem and court appointed special advocate programs as well as lawyer referral services in "fee generating" cases.
There is no limitation as to the amount of money which can be spent on "administrative costs" prior to July 1, 1998. Thereafter, a cap of fifteen percent (15%) is imposed. Ninety percent (90%) of the remaining funds (76.5% of the total, assuming 15% goes toward administrative costs) is then available to provide "legal assistance" to "eligible clients." I now turn to this lawyer referral provision of the Act.
Lawyer referral services in Indiana which qualify for IOLTA funds must provide:
() a referral to an attorney in private practice without a charge for the referral; and
(ii) an initial consultation with an attorney in private practice without a charge for the consultation;
in a fee-generating case.
IC 33-20-7-9(2)(B)(i) and (i). The Act itself provides that up to ten percent (10%) of the IOLTA funds (after payment of administrative expenses) can go to Indiana lawyer referral services. Under this provision, funds go to lawyers in private practice, not lawyers in legal aid clinics. Indeed, these funds are used to finance lawyer referral services which do nothing more than generate business for lawyers in private practice. If the goal of IOLTA programs is to promote pro bono activities among members of the bar, why does the Act provide for funds to be used to pay for referrals and initial consultation fees to lawyers in private practice?
Under the Act, the board would be authorized to disburse the funds by transferring them to other groups and organizations to be used at the discretion of the organization whose management and control is out of the hands of the board following such transfer. The very manner in which the board would function indicates that this is what would take place. Statistics tend to show that the boards in other jurisdictions in this country have transferred funds for these purposes to legal services organizations within their states. One of these organizations is Legal Services Corporation, a federally funded legal service organization. Four units of Legal Services Corporation in Indiana received a combined total of over five million dollars ($5,000,-000) from the federal government in 1989. Legal Services Corporation, Fact Book: 1988-1989 172-183, 270. There is evidence that federally funded legal aid organizations have used grant money for various political activities in the past. Those wishing more enlightenment on the subject are referred to Report sy THE COMPTROLLER GENERAL OF THE Unitep States, B-202116, addressed to the Honorable F. James Sen-senbrenner, Jr., House of Representatives (May 1, 1981), reported in Hearings on Oversight of Certain Activities of the Legal Services Corporation, Focusing on Policies at the Corporation and Political Activities, Before the Senate Comm. on Labor and Human Resources, 98th Cong., 1st Sess. (July 12 and 15, 1988) at 22-88 (see also pp. 100-05 and 828-25), Report BY THE COMPTROLLER GENERAL OF THE Unit Ep States, B-2108338/B-202116, addressed to the Honorable Orrin G. Hatch, Chairman of the Senate Committee on Labor and Human Resources (September 19, 19838), reported in Hearing on Review of the Corporation's Documents to Ascertain Whether There Are Any Problems with the Agency's Policies that Need To Be Addressed, Before the Senate Comm. on Labor and Human Resources, 98th Cong., 2nd Sess. (April 11, 1984) at 4-19. See also 55 Fed.Reg. 5664-66 (February 16, 1990) (United States Department of Health and Human Services Poverty Guidelines). No inference is made here that any Indiana organization uses any of its funds for political activity. I have no knowledge of whether they do or not. Furthermore, there are other legal service units in Indiana that are independent, receive no federal funds, and do a creditable and outstanding job of delivering services to those in need which would be considered qualified under the Act. The point is, we do not know what organizations will receive these *796 funds and how and in what manner they will use them. We do not know what amounts will finally reach the goal of supplying legal services to the poor and needy.
It is appropriate that our profession be concerned with delivery of legal services to those in need and yet not able to afford them. This can be accomplished by pro bono services delivered by lawyers in the giving of time, service and resources. The proposed project requires no lawyer to lift a hand nor spend a penny. Each lawyer merely places his clients' money in a trust account and, through processes already described at length, the interest generated goes to pay lawyers for their services. We can do better than this.
GIVAN, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9745110. Public record. Not legal advice.