What must a retiring or dissolving lawyer do with a client's original will held for safekeeping when the client can't be found?
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This page answers the general question as of 1999. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
It is common for a client to leave an executed original will with the drafting lawyer for safekeeping. The Committee addressed what a lawyer must do with such wills on retirement or firm dissolution when the testator cannot be located. It read the Code's property-safekeeping provisions (DR 9-102(C), requiring property to be kept in a safe-deposit box or other place of safekeeping with complete records, and DR 9-102(C)(4), requiring prompt return on request) together with EC 4-6 and EC 6-1.
The Committee noted the lawyer may notify clients of the impending retirement or dissolution and request instructions, making reasonable efforts to locate the client. But while DR 9-102(F) addresses missing-client property that is "money," the Code does not directly address other property such as original wills. Drawing on opinions from other jurisdictions (including Massachusetts 76-7) and New York State opinions on closed files, the Committee reasoned that documents the client would foreseeably need, or that law requires be maintained, must be preserved according to law and the client's foreseeable needs, and that a lawyer who accepts a will for safekeeping must use reasonable care to keep it secure.
The Committee concluded that the lawyer, whether the original drafter, her firm, or a successor, must keep a missing testator's original will secure, comply with any legal obligations regarding it, or where appropriate use legal procedures to deposit it with a court. It expressly did not opine on the statutory or decisional law governing possession or court-filing of wills, treating those as legal questions beyond its jurisdiction. On retirement or dissolution, the lawyer should index the wills of missing clients and place them in storage or turn them over to a successor lawyer, while preserving the testator's confidences and secrets under DR 4-101, citing ABA Formal Opinion 92-369 on a sole practitioner's transition arrangements.
Currency note
This opinion was issued in 1999, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a retiring lawyer dispose of a client's original will?
A: Only with the client's consent or as law allows. The opinion concluded the lawyer may contact clients to return wills or obtain consent to dispose of them, but cannot simply discard a missing client's original will.
Q: What if the client who left the will cannot be located?
A: The opinion concluded the lawyer's obligation to keep the original will secure continues indefinitely or in accordance with law; the will may be stored, turned over to a successor, or deposited with a court where appropriate.
Q: Can the lawyer hand the wills to a successor lawyer or firm?
A: Yes. The opinion concluded the wills may be indexed and turned over to a successor lawyer assuming control of the files, provided the testator's confidences and secrets are preserved under DR 4-101.
Q: Does the lawyer have to monitor whether the missing client has died?
A: The opinion did not impose that ethical duty itself, treating the statutory obligations of one holding an original will, including any filing requirements on a testator's death, as legal questions outside the Committee's jurisdiction.
Background and rules framework
The opinion interpreted New York's then-governing DR 9-102(C) and (F) (safekeeping and records of client property, the analog of Model Rule 1.15), DR 4-101 (confidences and secrets, the analog of Model Rule 1.6), and the transition concerns now reflected in Model Rule 1.17, informed by EC 4-6 and EC 6-1. The analysis turned on the continuing duty to safekeep a missing client's property.
Citations and references
Rules of Professional Conduct (then in effect):
- DR 9-102(C), (F) (safekeeping and records of client property; analog of Model Rule 1.15)
- DR 4-101 (confidences and secrets; analog of Model Rule 1.6)
- EC 4-6, EC 6-1 (return of client papers; competence and care)
Other opinions cited:
- ABA Formal Opinion 92-369 (1992): sole practitioner's arrangements for files on death
- N.Y. State Bar Opinions 460 (1977), 623 (1991): disposition of closed files
See also
- ABA Formal Op. 471: Surrendering Papers and Property to a Former Client
- ISBA Ethics Op. 03-04: Duties to a Missing Client Facing a Limitations Deadline
Source
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