Ohio Board Advisory Opinion Op 05-010

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2005-10
Issued December 2, 2005
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility
which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: An attorney does not violate the ethical duty to preserve a client’s
funds under DR 9-102(A) and the ethical duty to promptly deliver funds to a
client under DR 9-102(B)(4) by reporting “unclaimed funds” pursuant to R.C.
Chapter 169, so long as the attorney has diligently tried to contact the client at the
last known address and the client’s whereabouts are unknown.
OPINION: This opinion addresses a question regarding the ethical duty of
preserving client funds and the reporting of unclaimed funds to the state when an
attorney holds client funds in a trust account and the client’s whereabouts are
unknown.
Does an attorney violate the ethical duty to maintain a client’s funds
under DR 9-102 by reporting “unclaimed funds” pursuant to R.C.
Chapter 169?
Ohio attorneys have an affirmative duty to preserve the identity of funds and
property of a client.
DR 9-102(A) All funds of clients paid to a lawyer or law firm, other
than advances for costs and expenses, shall be deposited in one or
more identifiable bank accounts maintained in the state in which
the law office is situated and no funds belonging to the lawyer or
law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be
deposited therein.
(2) Funds belonging in part to a client and in part presently
or potentially to the lawyer or law firm must be
deposited therein, but the portion belonging to the
lawyer or law firm may be withdrawn when due unless
the right of the lawyer or law firm to receive it is disputed
by the client, in which event the disputed portion shall
not be withdrawn until the dispute is finally resolved.

Op. 2005-10 2
To fulfill the duty of preserving client funds, a lawyer must deposit clients’ funds
that are nominal in amount or funds that are to be held for a short period of time
in an interest-bearing trust account identified as an IOLTA (Interest on Lawyer’s
Trust Account). Funds that are more than nominal in amount or funds to be held
for a long period of time are deposited into a regular trust account on behalf of
the individual client. Laws related to the establishment of an IOLTA are set forth
in Section 4705.09 and 4705.10 of the Ohio Revised Code. Rules related to
IOLTA, adopted by the Ohio Legal Assistance Foundation pursuant to R.C.
120.52, are available at www.olaf.org.
Ohio attorneys also have an affirmative duty to promptly pay or deliver to a client
the funds that the client is entitled to receive.
DR 9-102(B) A lawyer shall:
(4) Promptly pay or deliver to the client as requested by a
client the funds, securities, or other properties in the
possession of the lawyer which the client is entitled to
receive.
In the normal course of a representation, an attorney will release to the client any
funds held in a trust account that become due to the client. But, if a client’s
whereabouts become unknown during or after the representation, an attorney
will be unable to release the money to the client.
Ohio attorneys are subject to Ohio law regarding the disposition of unclaimed
funds. Chapter 169 of the Ohio Revised Code governs the disposition of
unclaimed funds.
Pursuant to R.C. Section 169.03 (A)(1), all “holders” of unclaimed funds must
report to the director of commerce, funds that have reached the statutory
dormancy period.
R.C. 169.01 (D)(1) “Holder” means any person that has possession,
custody, or control of moneys, rights to moneys, or other intangible
property, or that is indebted to another, if any of the following
applies:
(a) Such person resides in this state;
(b) Such person is formed under the laws of this state;
(c) Such person is formed under the laws of the United States
and has an office or principal place of business in this state;
(d) The records of such person indicate that the last known
address of the owner of such moneys, rights to moneys, or
other intangible property is in this state;

Op. 2005-10 3
(e) The records of such person do not indicate the last known
address of the owner of the moneys, rights to moneys, or
other intangible property and the entity originating or
issuing the moneys, rights to moneys, or other intangible
property is this state or any political subdivision of this state,
or is incorporated, organized, created, or otherwise located
in this state. Division (D)(1)(e) of this section applies to all
moneys, rights to moneys, or other intangible property that
is in the possession, custody, or control of such person on or
after July 22, 1994, whether the moneys, rights to moneys, or
other intangible property becomes unclaimed funds prior to
or on or after that date.
Ohio Rev. Code Ann. §169.01(D)(1) (West 2002).
Ohio attorneys who meet the statutory definition of “holders,” would fall under a
statutory duty to report “unclaimed funds.”
“Unclaimed funds” are defined in Sections 169.01 (B)(1) and 169.02 of the Ohio
Revised Code.
R.C. 160.01(B)(1) “Unclaimed funds” means any moneys, rights to
moneys, or intangible property, described in section 169.02 of the
Revised Code, when as shown by the records of the holder, the
owner has not, within the times provided in section 169.02 of the
Revised Code, done any of the following:
(a) Increased, decreased, or adjusted the amount of such funds;
(b) Assigned, paid premiums, or encumbered such funds;
(c) Presented an appropriate record for the crediting of such
funds or received payment of such funds by check, draft, or
otherwise;
(d) Corresponded with the holder concerning such funds;
(e) Otherwise indicated an interest in or knowledge of such
funds;
(f) Transacted business with the holder.
Ohio Rev. Code Ann. §169.01(B)(1) (West 2002).
Pursuant to R.C. 169.02(J) funds held by a “holder” as a fiduciary for benefit of
another are considered unclaimed funds.
R.C. 169.02 Subject to division (B) of section 169.01 of the Revised
Code, the following constitute unclaimed funds:

Op. 2005-10 4
(J) Subject to division (M)(2) of this section, 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 Ann. §169.02(J) (West Supp. 2005).
Legal questions regarding an attorney’s statutory duty to report unclaimed funds
should be directed to legal counsel in the Department of Commerce, Unclaimed
Funds Division.
As to the question of an attorney’s ethical duty, it is the Board’s view that when an
attorney uses diligent efforts to locate a client at the client’s last known address,
but the client’s whereabouts are unknown the reporting of unclaimed funds,
pursuant to Ohio law upon reaching the statutory dormancy period, does not
violate an attorney’s ethical duty to preserve client funds.
In conclusion, the Board advises that an attorney does not violate the ethical duty
to preserve a client’s funds under DR 9-102(A) and the ethical duty to promptly
deliver funds to a client under DR 9-102(B)(4) by reporting “unclaimed funds”
pursuant to R.C. Chapter 169, so long as the attorney has diligently tried to
contact the client at the last known address and the client’s whereabouts are
unknown.
Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to
prospective or hypothetical questions regarding the application of the
Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code
of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.