Washington Law Review


In Washington Legal Foundation v. Legal Foundation of Washington, the Ninth Circuit Court of Appeals held that Washington's Interest on Lawyers' Trust Account (IOLTA) program did not perpetuate a "taking without just compensation" in violation of the Fifth Amendment. Even though the court acknowledged that IOLTA-generated interest was client property, the first element necessary to establish a taking, it reasoned that the appropriate subsequent analysis for this problem was the ad hoc test. Applying the ad hoc test to the IOLTA program, the court concluded that the requisite unconstitutional elements were absent. This Note argues that the Ninth Circuit incorrectly analyzed the IOLTA issue and instead should have applied the more appropriate per se takings analysis, resulting in an automatic finding of an unconstitutional taking. Finally, this Note suggests constitutionally valid alternatives to the IOLTA program that would continue to fund Washington's important legal aid organizations.

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