Can a lawyer who is executor of a deceased attorney's estate inspect and disclose confidential information in stored wills in order to return them to the right people?

Plain-English summary

The inquirer, a lawyer who works as a prosecutor, was named executor of his father's estate. The father, an attorney, had safeguarded wills from his dissolved law firm and had also agreed to preserve client wills of other attorneys who retired, died, or dissolved their firms. After the father's death, the inquirer was left holding several hundred wills, mostly from the 1980s, belonging both to former clients of his father and to non-clients. He asked whether he must notify interested persons, whether he may inspect the wills to identify the right recipients, and how he may dispose of them.

The opinion concludes there is no Rule 1.15(c) notification obligation. Although Rule 1.15(c) requires a lawyer to promptly notify a client or third person of property in which they have an interest, the committee read the rule's "incident to the lawyer's practice of law" qualification (express in Rule 1.15(a) and (b)(1)) as necessarily inferred in (c). The inquirer did not receive the wills incident to his practice; he holds them only as his father's executor.

On confidentiality, the opinion concludes Rule 1.6(a) does not prohibit the executor from inspecting the wills or disclosing the information in them to the extent reasonably necessary to dispose of them. Rule 1.6(a) by its terms applies to confidential information gained during or relating to the representation of a client, and the inquirer received the wills not from a client but as executor. The committee added that even if Rule 1.6(a) applied, disposing of the wills would likely be impliedly authorized, since the purpose of a will is that its commands eventually be made known. Drawing on N.Y. State 341 (1974), the opinion notes a custodian of another lawyer's wills should generally not examine them without consent, but here the executor may inspect them as needed, should first try to identify and contact surviving testators to avoid unnecessary disclosure, and may transfer the wills to another custodian, such as a lawyer better able to handle notification, though transferring them to a non-lawyer not subject to these constraints might not be impliedly authorized.

In practice

Under this opinion, a lawyer winding up a deceased attorney's estate who finds stored wills is not bound by Rule 1.15(c)'s notification duty or Rule 1.6(a)'s confidentiality bar in the way the original custodial lawyer would have been, because the executor did not take the wills incident to practicing law. The opinion holds the executor may inspect the wills to find the people entitled to them and may pass them to another suitable custodian, but should limit review and disclosure to what is reasonably necessary for proper disposal and should try to reach surviving testators first.

Common questions

Q: Does the executor have to notify everyone with an interest in the stored wills?

A: The opinion concludes there is no Rule 1.15(c) notification obligation, because the executor did not come into possession of the wills incident to his own practice of law; he holds them only as his father's executor.

Q: Can the executor open and read the wills to find the right recipients?

A: Yes. The opinion concludes Rule 1.6(a) does not bar inspecting the wills or disclosing their information to the extent reasonably necessary to dispose of them, in part because Rule 1.6(a) applies to information gained in representing a client and the executor did not receive the wills as a lawyer for a client.

Q: Can the executor hand the wills off to someone else?

A: The opinion sees no ethical bar to transferring the wills to another custodian, such as a lawyer better positioned to notify executors, where doing so is appropriate; transferring them to a non-lawyer not subject to these constraints might not be impliedly authorized.

Background and rules framework

The opinion applies New York Rule 1.15(c) (prompt notification of property held for a client or third person; cf. Model Rule 1.15) and Rule 1.6(a) (confidential information gained during or relating to the representation of a client; cf. Model Rule 1.6). The committee inferred Rule 1.15(c)'s "incident to the lawyer's practice of law" limit from the surrounding subsections, and relied on N.Y. State 341 (1974) for the custodial-versus-professional distinction in holding another lawyer's wills.

Citations and references

Rules of Professional Conduct:

• New York RPC 1.15(c) (notification of property held for others; cf. Model Rule 1.15)
• New York RPC 1.6(a) (confidential information gained in representing a client; cf. Model Rule 1.6)

Other opinions cited:

• N.Y. State 341 (1974): custodian of a retiring lawyer's wills generally may not examine them without consent
• N.Y. State 749 (2001); N.Y. State 700 (1998): limits on examining or exploiting others' confidential information

See also

• NY State Bar Op. 1035: Original Wills When Taking Over a Retiring Lawyer's Practice
• NY State Bar Op. 1133: Custodian of Client Files Contacting Prior Clients
• NY State Bar Op. 1094: Releasing a Client File to Former Counsel

Source

• Landing page: https://nysba.org/ethics-opinion-1002/