FLA. IOTA UPHELD: Interest use for poor OKAuthor(s): Paul MarcotteSource: ABA Journal, Vol. 73, No. 11 (SEPTEMBER 1, 1987), p. 24Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20759482 .

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News

A RETURN TO PERFECTION?

A??eals court reverses Philip Corbov's onlv trial loss Famed Chicago personal injury

lawyer Philip Corboy's undefeated record was restored in June when the Second District Appellate Court of Il linois reversed and remanded the sole case he ever lost at trial.

That case was an April 1985 medical malpractice lawsuit where he sought $4.5 million. (See "Defending a Doctor Against All Odds," May 1, 1986 ABA Journal, page 45.)

In remanding the case, the court ruled in Corboy's favor on all four of his claims of error. The heaviest blow to the defense, though, came when the appellate court held that defense counsel, without plaintiff's permis sion, improperly consulted with plaintiff's physicians and called them to testify for the defense.

One of the plaintiff's physicians was a partner of two of the defend ants. The appeals court ruled this a violation of the physician-patient privilege and has barred their testi mony on retrial.

Eager for the retrial, Corboy pre dicted that "the next trial... will turn

FLA? IOTA UPHELD

Interest use for poor OK

A U.S. Court of Appeals has up held a Florida program that uses in terest from lawyers' trust accounts to pay for legal aid programs.

Evelyn Glaeser sued her law yers, the Florida Bar, and the Florida Bar Foundation, seeking $20 million in damages through a class action suit. (See "Big Interest in Small Change," July 1 ABA Journal, page 70.)

The constitutional challenge to Florida's Interest on Trust Accounts (IOTA) program was brought after $2.25 in interest?earned on $13.75 that Glaeser had in a trust account opened by Holland & Knight?was paid to the Florida Bar Foundation.

Glaeser retained Holland & Knight to handle her late husband's

24 ABA JOURNAL / SEPTEMBER 1, 1987

out differently," adding that "I be lieve this case is a perfect example that the system works?if you have patience."

Defense lawyer Roger K. O'Reilly of Wheaton, III, said he has petitioned the appellate court for a rehearing and thatj^ "we intend to petition for leave to appeal to the Illinois Su preme Court."

O'Reilly added that if he is unsuccessful in these attempts he ex pects the retrial to "have the same re

sult because the trial was fair the first time."

?Gary Hengstler k

estate, and the firm was a participant in Florida's IOTA program.

In June, the 11th Circuit Court of Appeals rejected Glaeser's claim that paying the $2.25 to the bar founda tion constituted an uncompensated taking of her property. Cone v. State Bar of Florida, 85-3993.

The court reasoned that Glae ser's $13.75 would not have earned any interest had it not been pooled with other funds in the IOTA pro gram.

The case was being watched by lawyers and state bars around the country because it was the first time a challenge to such a program had been heard by a U.S. Court of Ap peals.

"The opinion is very clear and should give all the states comfort," said Michael Nachwalter, a Miami lawyer who represented the Florida Bar in the case. "Everybody can breathe a little easier."

Lawyers routinely receive thou sands of dollars in client funds each

year for filing fees, real estate closing costs, or personal injury settlement drafts. Often the funds are not large enough or held long enough to be placed in a separate account to gain interest for the client.

Under IOLTA programs, the money is pooled together in interest bearing accounts and that interest is used to fund legal services for the poor and other public purposes. Such programs have been legislatively or judicially approved in 44 states and the District of Columbia since 1981.

Although Glaeser's attorney, Herbert Schlanger, said he will ask the Supreme Court to hear the case, Florida Bar Foundation officials are planning a new recruitment cam paign to add to the list of 4,200 law yers participating in the IOTA program.

"We feel we have all our legal hurdles behind us," said Jane Rob ertson, executive director of the Flor I ida Bar Foundation. '

?Paul Marcotte

ABAJ/Uldis Saule

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