concurring and dissenting.
In enacting the Attorney Trust Account Act, commonly called "IOLTA," the Indiana General Assembly found that existing legal programs for the poor "do not adequately meet the needs of indigent persons." It also declared that using funds generated by interest-bearing attorney trust accounts to provide legal assistance to the poor "is in the public interest" and "is a proper use of the funds." Ind.Code § 33-20-1-1 (West 1990 Legis. Serv.).
The legislature chose to act on these findings by creating an Indiana Lawyer Trust Account Fund, to which lawyers would transmit the interest collected on small amounts being held in trust accounts for short periods. The amounts at issue are so small that the cost of individual accounting and payment exceeds the amount of interest that might be earned. The relatively recent availability of demand deposit accounts that pay interest has made IOLTA possible.
The General Assembly, representing as it does the democratic voice of the five and a half million Hoosiers to whom this Court is also responsible, is the principle enunciator of public policy for our state. Still, its declaration about the appropriate policy for Indiana does not stand alone. The voices of our fellow Indiana lawyers are virtually unanimous in the conclusion that an IOLTA program would be both ethical and salutary for Indiana. The associations of our profession have added their voice: the Indiana State Bar Association, the Indiana Bar Foundation, the Indianapolis Bar Association, the Clark and Floyd County Bar Associations, and the Allen County Bar Association, to name a few, have all petitioned this Court to permit IOLTA to go forward. The deans of our four law schools have also been consistent supporters.
Thinking that there might be in the profession some "great silent majority" truly opposed but cowed into submission, this Court published an opinion denouncing IOLTA, Matter of Indiana State Bar (1990), Ind., 550 N.E.2d 311 (4-1, Shepard, C.J., dissenting), and issued two calls for lawyers who might be opposed to IOLTA to respond to this litigation. The resulting letters in opposition can be counted on one hand. In the face of this degree of unanimity, a decent respect for the opinions of mankind (Mr. Jefferson's phrase) ought to suggest a different course of action than the one adopted today by the Court.
I cannot disagree with the legal analysis of my brother Dickson about the distribution of powers in Article 3 of the Indiana Constitution. It commands each branch of the government not to intrude on the duties assigned to the other branches. Article 7 of the Constitution plainly assigns to the judicial branch the responsibility for regulating the practice of law in the state. This is a constitutional duty which the Court has usually defended strongly.
Still, there are times when the better part of valor is to assent to the opinions of others and accept an action taken by another branch even if that action goes beyond its assigned duties. If legislators, judges, and governors insisted on defending their prerogatives at every turn, government would be a continuing series of turf wars rather than an enterprise for the public good.
I believe the Court should assent to the policy determination made by the legislature and the governor and adopt as its own *797through rule an IOLTA program for Indiana. In the other forty-nine states with such programs more than $160 million has been generated for law-related education, pro bono programs, legal services for the poor, scholarships, and research about the legal system. The people of Indiana would benefit greatly from improvements in these activities. I look forward to the day when this Court may make it possible.