SJC’s Method of Raising Money for Poverty Lawyers Violates U.S. Constitution

SJC’s Method of Raising Money for
Poverty Lawyers Violates U.S.
Constitution

IOLTA Declared Unconstitutional by Ninth Circuit

By J. Edward Pawlick
Attorney at Law
January 12, 2001

The method that the Supreme Judicial Court uses to support its favorite poverty lawyers, is unconstitutional, a U.S. Court of Appeals for the Ninth Circuit ruled yesterday.

The SJC has been forcing all Massachusetts lawyers since 1990 to take all of the interest they receive from money that belongs to their clients and give it to the SJC which then distributes the approximate $7 million to the “poverty lawyers” that it likes the most.

Although the Worcester Bar Association has applied for funds under the program for example, the SJC has restricted the administration of the millions of dollars that result from the program to the private groups of lawyers known as the Boston Bar Association and the Massachusetts Bar Association. Less than 50% of the lawyers belong to those organizations.

Many complain because the recipients of the money are all very liberal organizations. For instance, the well-known Chester Darling is totally ostracized and receives no money at all for his attempts to help those in need of legal help.

Try to Deny It Is Unconstitutional
Although the judges sitting on the SJC have tried to deny that this interest is the property of the clients, the U.S. Supreme Court disagreed in 1998 and it ruled that the interest is indeed the property of the clients. Nevertheless, the SJC has continued the program despite the warning from the U.S. Supreme Court that it is violating the Constitution. The lawyers for the SJC have claimed that even though the interest may belong to the clients, the clients have not had anything “taken” because the amount of money from each client is so small.

However, there have been numerous complaints from clients in Massachusetts that the amount of interest taken from them was not small at all. They say that the lawyers are frightened of the SJC and therefore decide that almost anything is “small.”

But even more important, the U.S. Court of Appeals for the Ninth Circuit in California held yesterday that not only is the interest “property” of the clients but that a “taking” of their property does occur under these procedures.

However, it was not a slam-dunk because the case was sent back to the trial judge to determine whether the state could continue its program by providing some type of compensation to the clients, which is difficult to understand. Because it was remanding the case, the court also said it was not deciding the important question whether IOLTA also violated the First Amendment in that some of the clients disagree with the liberal political philosophies of the poverty lawyers who receive the money.

The decision was a surprise because the case that the U.S. Supreme Court decided in 1998 had originated in Texas. The decision as to whether there is a “taking” has been wending its way back through that Fifth Circuit with oral argument scheduled in its Court of Appeals next month. No one expected that the Ninth Circuit which is the most liberal Court of Appeals would have an opinion on this subject so quickly in a case from the state of Washington or that it would hold the process to be unconstitutional.

The original case that went to the U.S. Supreme Court was the result of a conflict between the Fifth Circuit which held that the process was unconstitutional and the First Circuit in Boston which approved the unconstitutional process.

The full text of the U.S. Court of Appeals ruling is available here online.

Why do judges continue this unconstitutional practice?

IOLTA in a nutshell