The Oklahoma Bar Journal May 2023

Courts could submit applications for grants to pay for courthouse technology improvements, com puter equipment and related items. The cy pres court grant awards were a boon for the many ill equipped county courthouses across the state that did not have the funds to address all of their basic technology needs. In the first four years of the new program, 25 courts throughout the state were awarded grants for various projects, including digital court reporting systems, sound equip ment, audiovisual equipment for courtrooms and Wi-Fi capabilities. Not long after the new court grant program was put in place, the effects of the 2008 Great Recession began to significantly harm the OBF’s ability to make grants. As 2009 progressed, the effects became more pronounced. Total IOLTA remittals plunged from a healthy $867,620 in 2008 to $377,251 in 2009. IOLTA receipts in 2010 and 2011 did not exceed $350,000 in either year. The year 2012 was especially diffi cult, with an 87% decline in IOLTA remittals since 2009 at $241,254. Drastic cuts were required, and legal service programs and com munities across the state were reeling from the negative impact. CHALLENGES OF A CHANGING WORLD As the OBF struggled with the financial challenges, additional new challenges emerged – the need to keep up with technology was rapidly increasing along with the need for more funds for legal ser vices. The number of people living in poverty by 2014 was at an all-time high. Once again, Oklahoma law yers stepped up to the plate for the foundation and ushered in a new beginning designed to increase the

In the mid-2000s, a new source of significant funding began to strengthen the OBF’s endowment and stretch its reach. This welcome development came in the form of cy pres awards. Cy pres awards are often made in class action cases when a suit is brought on behalf of a “class” of people who may have been harmed but who have not been specifically identified as plaintiffs in the lawsuit and would otherwise be unrepre sented. Often, when a judgment is rendered or a settlement reached in such a case, many of the class members who were intended recip ients cannot be paid because, for example, they cannot be located, so final surplus funds will remain from the action. Based on a court’s broad equitable powers and the cy pres doctrine, these surplus funds can be distributed to benefit others. The first cy pres funds the OBF received were awarded in December 2006, stemming from the settlement of a class action case in Beaver County, Lobo Exploration Company v. BP American Production Company . The case was filed in 1997 and set tled in 2006 for $150 million. The search for all class members enti tled to recover funds began, but many had passed away during the years or could not be found. Four days before Christmas in 2006, plaintiff’s attorney informed the Beaver County associate district judge of the parties’ agreement regarding the final $2 million in surplus funds that could not be awarded to the rightful owners. They agreed on a cy pres use. The funds would go to the Oklahoma Bar Foundation with “a portion of the proceeds earmarked and used to fund a grant program for the appellate and district courts.”

The OBF’s fortunes began to change, however, when a 2003 U.S. Supreme Court decision put a halt to ongoing legal challenges that were preventing some attorneys from join ing IOLTA. The court ruled in Brown v. Legal Foundation of Washington , 538 U.S. 216 (2003), that Washington state’s mandatory IOLTA program did not violate the Fifth Amendment by taking interest from IOLTA trust accounts. In the wake of this decision, the OBF petitioned the Oklahoma Supreme Court to make the program mandatory for all Oklahoma attorneys. The differences between voluntary and mandatory IOLTA programs were staggering. With only a voluntary program, Oklahoma fell to the bottom – 49th in the nation – in the amount of IOLTA funds the program generated per person in need in the state. In June 2003, the Oklahoma Supreme Court approved changes to Rule 1.15 of the Oklahoma Rules of Professional Conduct to convert the IOLTA program from volun tary to mandatory for all attorneys, effective July 1, 2004. For the first several years following the adoption of the mandatory program, the OBF saw IOLTA revenues soar, beginning with $476,287 in 2005, $770,557 in 2006 and a high of $1,003,634 in 2007. The 2007 remittal amount remains the most IOLTA income the OBF has ever received in a single year. Now, with the man datory program in place, the OBF has been able to expand the num ber of programs supported and increase funding for nonprofits that provide legal representation to specific populations, such as abused children, elderly citizens and refugees. Both urban and rural Oklahoma areas received support from OBF grants.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

44 | MAY 2023

THE OKLAHOMA BAR JOURNAL