A reasonable effort should be made to locate a client entitled to funds held in an escrow account.

I have money in my escrow account and the client cannot be located. I have been holding this money for 10 or 15 years. I have done everything I can to try to find the client with no success. What can I do with this money?

In 2017, Rules of Professional Conduct 1.15 was amended to deal with this situation.

Samuel C. Stretton.

The rule at issue is Rule 1.15(v). Pertinent portions of the rule read as follows, "When a lawyer or law firm cannot, using reasonable efforts for a minimum of two years, identify or locate the owner of funds in either its Pennsylvania IOLTA account or the Pennsylvania IOLTA accounts of a deceased lawyer—it shall pay the funds to the Pennsylvania IOLTA Board. At the time such funds are remitted, the lawyer or law firm shall submit to the IOLTA board, the name and last known address of each person appearing from the lawyer's or law firm's records to be entitled to the funds, and the amount of unclaimed funds to which each owner is entitled, if known; the amount of any unidentifiable funds; and a description of the efforts undertaken to identify and locate the owners."

Under Rule 1.15(v)(2), if after doing so, the client somehow appears or is located, the rules notes, "The IOLTA board shall refund the sum to the lawyer or law firm." The lawyer has to submit to the IOLTA board a verification attesting that the funds had been returned to the owner.

Under 1.15(v)(4), a lawyer is protected if they follow the above procedures.

"A lawyer shall not be liable on damages or held to have breached any fiduciary duty or responsibility as a result of his good faith adherence to the unclaimed or unidentifiable IOLTA fund requirements in this subsection."

Comment 12 to Rule 1.15 discusses reasonable efforts. The comment suggests periodic correspondence, and if that is unsuccessful, then there has to be efforts to locate the person. The effort would be similar to trying to find someone who the attorney was trying to do a service of process. That could be examination of telephone directives, court records, voter registration records, tax records, motor vehicle records or online search services.

This procedure is a good one. In years past, no one really was sure what to do with funds left in the account when the client could not be found. Sometimes, it was given to the commonwealth to escheat. Sometimes, after 15 or 20 years, a lawyer would just take it because no one was coming forward. That is not a good idea anymore. Rule 1.15(v) is clear now on what to do with it, and with the affidavit showing the efforts. If that is complied with, the lawyer will have no further responsibility or face any discipline.

There can never be any ex parte review of subpoenaed documents without the consent of all parties or notice with opportunity to quash.

In a domestic case, I issued a subpoena for the bank records the other side used in getting a loan to pay monies that were ordered. The records were subpoenaed into the hearing, and not given in advance. Do I have to give 20-days notice?

At least to this writer, one of the confusing aspects is when you give 20-day notice, when you issue a subpoena, and when you don't. In a recent domestic case, the judicial officer found that there was no need to give 20-days notice of subpoenas for bank records. It seemed very unfair because the bank records of personal documents were subpoenaed in, and there was no notice and no opportunity to quash the subpoena. As a result, at the hearing, the opposing counsel was taken by surprise with the bank records that were produced by subpoena, many of which were confidential, and which he had no chance to move to quash.

This writer recalls in an Orphans Court case issuing a subpoena for records at a trial and not sending the 20-day notice and being fairly strongly criticized by the Orphans Court judge for not giving the 20-day notice.

Pennsylvania Rules of Civil Procedure Rule 234.1 talks about a subpoena to attend and testify. The rule notes fairly clearly that a subpoena can be used to get a person to attend and produce documents at a trial or hearing, or just taking a deposition, but this subpoena cannot be used to compel a person to appear or produce documents ex parte before the attorney without the other side being there. Pennsylvania Rules of Civil Procedure 234.1 in the comment states that the 20-day notice in rule 4009.21 is not applicable to subpoenas issued under Rule 234.1 in connection with a deposition. The comment notes that the provision under Rule 4007.1(d)(2) for items subpoenaed for a deposition can't be produced earlier without the consent of the parties. The comment notes this serves the purpose of the 20-day notice.

Rule 234.1(C) clearly states the purpose, "A subpoena may not be used to compel a person to appear or produce documents or things ex parte before an attorney, a party or a representative of a party." In other words, once one subpoenaed documents for a hearing, the documents cannot then be subpoenaed to their office and looked at ex parte unless the other side consents. The purpose being to allow a motion to quash if the documents should not be published.

Further, a review of Pennsylvania Rules of Civil Procedure 4009.21 involves depositions and discovery. Under 4009.21, a party seeking production from a new party shall give written notice to every other party of an attempt to serve a subpoena at least 20 days in advance. Rule 4009.21 talks about serving a subpoena on a person who is not a party. Under Rule 4009.21(d)(1), objections can be filed and the court can make appropriate ruling.

Under Pennsylvania Rules of Civil Procedure 4007.1, for a deposition, when a subpoena is issued, there has to be reasonable notice given to all parties.

Under Rule 234.1 if there is a deposition, one can't have documents subpoenaed into their office ex parte without the consent of all parties. Rule 4009.21 puts the request upon a person, not a party, for the production of documents. Twenty days is not required if there is a deposition. If the documents can't be produced directly to the lawyer, there has to be an opportunity to object.

The better way to practice is to always give notice of the issuance of subpoenas for documents even if it's not required when documents are being produced. It provides a general sense of fairness.

There does not appear to be any requirement for such notice for depositions for a nonparty. On the other hand, one can't get the documents in advance without the consent of the parties.

It would be nice if the rules could be rewritten to make it a little clearer as to when 20-day notice is to be given. There can be no ex parte review of the documents in advance of the hearing or deposition. For trial, the notice to attend under Rule 234.3 has to be served reasonably in advance to all parties. Rule 234.4 allows for a motion to quash subpoenas.

For criminal lawyers, the criminal subpoenas issued to the witnesses have no advance notice is required to give to the district attorney for trial subpoenas. There are no depositions in the criminal world except for under extraordinary circumstances.

The basic rule to remember, there can never be any ex parte review of subpoenaed documents without the consent of all parties or notice with opportunity to quash.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 47 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 103 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.