Does a lawyer have to hold onto documents or property a client leaves with them unsolicited?

Plain-English summary

The Committee was asked whether a lawyer must hold documents or property that a client delivers to the lawyer unsolicited, for example by leaving items at the office front desk. It concludes that, generally, the lawyer has no responsibility to hold property delivered unsolicited and not connected to the representation, but recommends, as a precaution, treating such items as abandoned property following Opinion 90-3.

The analysis turns on Rule 1.15, which governs safekeeping of client and third-party property. Two threshold issues frame the duty. First, Rule 1.15(a) applies only to property held "in connection with a representation," so purely personal effects with no relationship to the matter create no duty. Second, the duty turns on consent: if the lawyer willingly accepts the property, the lawyer becomes a fiduciary as to it and may trigger duties under Alaska Statute 34.45.220, regardless of its connection to the representation. The opinion cites cases where lawyers who agreed to hold a client's firearms or forward a client's mail took on safekeeping duties even though the property was unrelated to the matter.

The opinion cautions that consent can be inferred from the circumstances, so a lawyer who does not wish to take on these duties should make non-consent as clear as possible, and notes that consent, once given, can be revoked with ample written notice. Where no duty arises, the Committee still recommends, out of concern for the property owner's due-process rights, following Opinion 90-3's process for abandoned property: exhausting reasonable efforts to locate the owner, holding the property for the required period, and then disposing of it as abandoned property under Alaska Statutes 34.45.110 to 34.45.430, while stressing this is a recommended precaution, not a rule requirement.

In practice

Under this opinion, as the Alaska rules stood at the time, a lawyer generally has no Rule 1.15 obligation to hold property a client delivers unsolicited that is unconnected to the representation, and one way to avoid the duty is to decline to hold the items. The opinion treats the duty as triggered by either a connection to the representation or the lawyer's consent (which may be inferred), so it advises a lawyer who does not want the duty to make non-consent clear. As a recommended precaution rather than a requirement, the opinion points to the abandoned-property procedure of Opinion 90-3 and the Alaska abandoned-property statutes.

Common questions

Q: If a client drops off property unrelated to my case, do I have to keep it?

A: Generally no. The opinion concludes there is no Rule 1.15 duty to hold property delivered unsolicited and unconnected to the representation unless the lawyer consents to hold it.

Q: When does a duty to safeguard the property arise?

A: Per the opinion, when the property is held in connection with a representation under Rule 1.15(a), or when the lawyer consents to hold it, becoming a fiduciary; consent can be inferred from the circumstances.

Q: What should the lawyer do with the items as a precaution?

A: The opinion recommends, though does not require, following Opinion 90-3: exhaust reasonable efforts to locate the owner, hold the property for the required time, then dispose of it as abandoned property under Alaska Statutes 34.45.110 to 34.45.430.

Background and rules framework

The opinion interprets Alaska Rule of Professional Conduct 1.15 (safekeeping property, analog of Model Rule 1.15), focusing on the "in connection with a representation" limitation in 1.15(a) and the role of consent. It connects the duty to Alaska's abandoned-property statutes (AS 34.45.110 to 34.45.430; AS 34.45.220) and to the procedure set out in the Committee's Opinion 90-3.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.15, 1.15(a) (safekeeping property)

Statutes:

• Alaska Statutes 34.45.110 to 34.45.430 (abandoned property); AS 34.45.220

Cases:

• Fla. Bar v. Grosso, 760 So. 2d 940 (Fla. 2000), lawyer holding client's firearms
• In re Rathburn, 124 P.3d 1 (Kan. 2005), lawyer forwarding client's mail

Other opinions cited:

• Alaska Ethics Opinion 90-3: abandoned client funds procedure

See also

• ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
• AL Bar Op. 1993-10: Retention and Destruction of Client Files

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2015-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 2015-2
Does a Lawyer Have an Obligation to Hold Client Documents or Property Delivered to the
Lawyer Unsolicited?
Question Presented:
Does a lawyer have an obligation to hold documents or property that a client has
delivered to a lawyer unsolicited?
Conclusion:
Generally a lawyer does not have a responsibility to hold documents or property that a
client has delivered unsolicited and that are not in connection with the representation, however the
Ethics Committee recommends treating such items as abandoned property and following the
guidelines set forth in Alaska Ethics Opinion 90-3.
Discussion:
The safekeeping of client and third party property is governed by Alaska Rule of
Professional Conduct 1.15. Although this rule is usually relied upon when discussing client funds
and trust accounts, it also covers situations in which a client has left “other property” with the
attorney. A lawyer has no obligation to accept or agree to accept any client property, but once he
or she does, the Rule 1.15 obligations are triggered. Thus one way to avoid the application of the
duties described below is to refuse to hold the items of property in question. Sometimes, however,
a client or a third party such as a family member may simply leave items at the front door or front
desk of the lawyer’s office. This opinion is intended to address that scenario.
There are two threshold issues to consider. First, Rule 1.15(a) states that “[a] lawyer shall
hold property of clients or third persons that is in a lawyer’s possession in connection with a
representation separate from the lawyer’s own property.” (Emphasis added.) The key here is
whether the items were in connection with a representation. If they are simply personal effects
such as clothes with no relationship to the representation, then there is no basis for a duty to arise
with respect to that property.
The second issue is consent. Should the lawyer willingly accept that property, regardless
of the relationship to the representation, then he or she has consented and takes on the duties of a
fiduciary with respect to that property and the duties under Alaska Statute 34.45.220 may apply.
The comments to Rule 1.15 state very clearly that the lawyer is responsible for safekeeping
property, whether money or personal property, including documents. Fla. Bar v. Grosso, 760 So.
2d 940 (Fla. 2000) (holding client’s firearms); In re Rathburn, 124 P.3d 1 (Kan. 2005) (forwarding
client’s mail). In these cases, the lawyer consented to hold items even though the representation
did not technically concern the items held. Even if consent is given, it can be revoked by providing
ample written notice to the property owner and following the standard procedures of returning
client files and client monies when representation ends. If the lawyer never consented to hold, then

Page 1 of 2

no duty arises. The lawyer is cautioned that consent may be inferred from the circumstances, so
the lawyer should endeavor to make it as clear as possible that she or he had not consented to hold
the property.
Even though the items may not be connected with the representation, and the lawyer may
not have consented to hold anything – in which case no true professional obligation arises – the
Ethics Committee recommends that, out of an abundance of caution and concern for the due
process rights of the property owner, lawyers may follow the guidance set forth in Alaska Bar
Association Ethics Opinion 90-3 (former rule DR 9-102(B)). This Opinion concerns the proper
procedure when a lawyer cannot locate a former client for whom the lawyer is holding money in
a trust account. The Ethics Committee concluded that the lawyer must exhaust reasonable efforts
to locate the client, hold the funds for the requisite period of time, and then dispose of them as
abandoned property pursuant to Alaska Statute 34.45.110-34.45.430. These statutes require
periods of one to three years depending upon the type of property and the holder and this can
impose a significant burden upon a lawyer who has not consented to hold the property and did not
acquire the property for purposes of the representation, therefore the Committee recommends this
only as precaution, but it is not required by any rule of professional responsibility.
Approved by the Alaska Bar Association Ethics Committee on May 7, 2015.
Adopted by the Board of Governors on May 12, 2015.

Page 2 of 2