THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

FORMAL OPINION 1999-05

TOPIC: Lawyer's obligations regarding disposition of original Wills held for safekeeping where the testator cannot be located and the lawyer is retiring or the firm is dissolving.

DIGEST : A lawyer who is retiring or whose firm is dissolving may not dispose of the original Will of a missing client, except by assuring its continued safekeeping indefinitely or in accordance with law.

CODE: EC 4-6; EC 6-1; DR 9-102(C), 9-102(F).

QUESTION

A lawyer's files or safe deposit box may contain copies of original Wills of clients that were left with the lawyer for safekeeping when the Will was executed. When anticipating retirement or planning for law firm dissolution, what are the lawyer's obligations with regard to disposition of original Wills in the lawyer's possession if the testator cannot be located?

OPINION

It is a fairly common practice for a client to leave an executed original Will in the custody of the drafting lawyer for safekeeping. The issue addressed by this Opinion is the lawyer's duty regarding the disposition of such original Wills upon retirement or law firm dissolution if the testator cannot be located.

The Code of Professional Responsibility contains several provisions of relevance to the lawyer's duty with regard to property held for safekeeping. When the lawyer has custody of client "property," DR 9-102(C)(2) requires the lawyer to place that property in "a safe deposit box or other place of safekeeping as soon as practicable" and "[m]aintain complete records" of that property. Of course, if a client asks for the return of an original Will, the lawyer must return it "promptly." DR 9-102(C)(4).

Clearly, the lawyer may notify the client of the lawyer's impending retirement or law firm dissolution and request instructions for disposition of the original Will. See N.Y. State 460 (1977) ("Circumstances under which lawyers may dispose of closed files"). With regard to retiring lawyers, EC 4-6 suggests that the lawyer "might provide for the personal papers of the client to be returned to the client." The lawyer choosing to return Wills or request client instructions for disposition should make reasonable efforts to locate the client or the client's representative. Cf., e.g., Fla. 81-8 (1981) (lawyer intending to dispose of clients' files can send "a letter to each client's last known address or, if there is no address available, by publication in the local newspaper, requesting the client either to pick up his files or to give permission for their destruction").

Although DR 9-102(F) covers those situations in which a client cannot be located and the property held is "money," the Code does not address directly the lawyer's obligations when other types of property of missing clients, such as original Wills or documents, are held.

Massachusetts 76-7 (1976) considers the obligations of a successor lawyer who is acting as custodian of the predecessor's records and holds original Wills for clients who cannot be located. Viewing the matter as governed by EC 6-1 ("[T]he lawyer should act with competence and proper care in representing clients"), that Opinion states that an attorney who accepts a Will for safekeeping is obligated to "use reasonable care to keep it secure" and, if returning the Will to testator, must make sure it reaches the client safely. The Opinion refers to the attorney's alternative under Massachusetts law of depositing the will with the appropriate court. It adds that:

If the lawyer cannot find the testator and does not wish to deposit the will with the court, he remains obligated to use reasonable care to keep it secure. While he need not watch the obituary columns, if he does learn of the testator's death, [Massachusetts law] requires him either to deliver the will to the executors named therein, or to file it, within 30 days after he receives notice of the testator's death, in the probate court having jurisdiction over the proceedings.

Other published Opinions on a lawyer's responsibilities regarding the disposition of ordinary closed files recognize that certain types of documents may require special treatment, such as "documents contained in the file that either the lawyer or the client is required by law to maintain or any documents that the client would foreseeably need to establish substantial or property rights . . . ." (N.Y. State 623 (1991) ("What procedures should a lawyer undertake when disposing of closed files and to what extent are those procedures affected by dissolution of the lawyer's firm?"). Absent instructions from the client, such material "should be further maintained by the lawyer according to law and/or the reasonably foreseeable needs of the client." Id.

In addressing lawyer obligations with respect to closed files in general, N.Y. State 460 (1977) concluded that:

In the final analysis, whether and to what extent the closed files of a client must be preserved will be determined by applicable rules of law, the legitimate interests of the client in the preservation of his files and such instructions as he may issue in connection therewith, as well as the sound judgment of the lawyer who is duty bound to take into account both the mandate of the law and the foreseeable needs of his client.

See also ABA Informal Opinion 1384 (Mar. 14, 1977) (an attorney should not destroy or discard original documents, the return of which "could reasonably be expected by the client," without the client's consent; retention of files is a matter of the lawyer's discretion, taking into account the nature of the file).

We agree with the principles set out in those authorities and believe that the lawyer -- whether the original drafter, her firm, or a successor lawyer or firm -- must keep the original Will of a missing testator secure, comply with any obligations of law regarding the original Will, or, if appropriate, employ procedures provided by law to deposit the Will with the court. However, this Committee does not opine on statutory or decisional law regarding the obligations of one in possession of an original Will or pertaining to the filing of Wills with the court and, therefore, does not address the legal requirements that may apply. We note that to the extent that such legal -- as opposed to ethical -- issues are implicated by the disposition of a testator's original Will, those issues are beyond the scope of this Committee's jurisdiction.

Upon retirement or dissolution, then, the lawyer should index the Wills of missing clients and place them in storage or turn them over to a successor lawyer who is assuming control of the lawyer's or firm's active files, while preserving the confidences and secrets of the testator/client. Cf. ABA Formal Opinion 92-369 (1992) (discussing the obligations of the sole practitioner to make arrangements for such indexing and turnover following the lawyer's death); DR 4-101 (regarding client confidences and secrets); DR 2-111(b) (preserving confidences in the context of sale of a law practice).

We note that the Nassau County Bar Association Opinion 89-43 (1989) addressed the potential burdensomeness to a successor law firm holding a client's original documents and concluded:

It is no answer to the discharge of the custodial counsels' obligations under the Code of Professional Responsibility to complain that the benefits of their passive custody of the documents are not commensurate with the present burdens. Such burdens do not flow solely from an attorney-client relationship, and are not dependent on the payment of fees; rather, the burdens of custody as prescribed by the Code are inherent in the lawyer's enjoyment of his professional status, and his concomitant obligations to the public generally. Once the burden is assumed, by actively (or passively) taking custody of funds or property belonging to any "client," those burdens must be fully discharged even if the benefits of the custody were minimal or non-existent.

CONCLUSION

For the foregoing reasons, we conclude that a retiring lawyer -- or one whose firm is dissolving -- may communicate with clients to arrange the return of original Wills to them or to obtain consent to dispose of those Wills. However, as to those clients who cannot be located, the lawyer's obligation to retain the Wills in safekeeping continues indefinitely or in accordance with law. The original Wills remaining in the lawyer's possession could be placed in storage or in the custody of a successor attorney (indexed and stored in a manner that will protect client secrets and confidences), unless it is appropriate to use available procedures for filing original Wills with a court for safekeeping.