May a lawyer who took custody of another lawyer's client files solicit those clients for legal work?
NY State Bar Ethics Opinion 1133: Custodian of client files contacting prior clients
Short answer: A lawyer who holds a prior lawyer's client files solely as a custodian (an arrangement that was not a sale of a law practice) may write to those clients offering legal services, provided the lawyer reviews the files only as reasonably necessary to find contact information and complies with the advertising and solicitation rules.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A lawyer received custody of about 800 executed wills when prior counsel closed a solo practice to take a job elsewhere. The prior lawyer had written to each client explaining their right to retrieve the files or send them to a lawyer of their choosing, and stating that the inquirer would take responsibility for files not retrieved. There was no exchange of consideration and no fee-sharing arrangement. The inquirer now wants to contact those clients to offer legal services.
The committee first concludes the transfer was not a sale of a law practice under Rule 1.17; it was a custodial arrangement, even though prior counsel's letter mirrored several Rule 1.17 client-protection features. As a custodian, the inquirer has an ongoing duty under Rule 1.15(c) to preserve the files. On confidentiality, Rule 1.6(a) lets the inquirer inspect the estate documents only as reasonably necessary to identify and contact the clients; the inquirer may not, without informed consent, review the files to offer unsolicited advice on updating the estate plans (citing N.Y. State 1035, 1002, and 341).
Because the inquirer wants to go beyond contact and offer legal services, the communication is an "advertisement" under Rule 1.0(a) and a "solicitation" under Rule 7.3. So it must satisfy Rule 7.1 (no false or misleading content, the "Attorney Advertising" label under 7.1(f), the lawyer's name and office under 7.1(h), and retention for three years under 7.1(k)) and Rule 7.3's solicitation requirements (filing the written solicitation with the disciplinary committee under 7.3(c)(1) and keeping recipient names and addresses for at least three years under 7.3(c)(3)). If the inquirer abides by these rules, the proposed outreach is permitted.
In practice
Under this opinion, a lawyer who is merely a custodian of another lawyer's client files (where the transfer was not a sale of a practice) may solicit those clients for legal work. The lawyer must treat the files as third-party property under Rule 1.15(c), confine file review to what Rule 1.6(a) permits (locating contact information, not mining the files to pitch estate-plan updates), and run the solicitation through Rules 7.1 and 7.3, including the attorney-advertising label, required identifying information, the filing of the solicitation, and the recordkeeping the rules require.
Common questions
Q: Was taking custody of the files a sale of a law practice under Rule 1.17?
A: No. With no consideration and no fee-sharing, the committee found a custodial arrangement, not a sale, even though prior counsel's letter tracked several Rule 1.17 client protections (Opinion 1133 ¶¶ 7-8).
Q: How much of the files may the custodian read?
A: Only as reasonably necessary to identify and contact the clients. Reviewing the files to offer unsolicited estate-plan advice requires the clients' informed consent under Rule 1.6(a) (¶ 11).
Q: What rules govern the letter offering services?
A: It is an advertisement and a solicitation, so it must meet Rule 7.1 (content, the attorney-advertising label, identifying information) and Rule 7.3 (filing the solicitation and keeping recipient records) (¶¶ 12-13).
Background and rules framework
The opinion applies Rule 1.17 (Model Rule 1.17) on sale of a law practice (to find it inapplicable), Rule 1.15(c) (Model Rule 1.15) on safekeeping third-party property, and Rule 1.6(a) (Model Rule 1.6) on confidential information. It then applies Rule 7.1 (Model Rule 7.1) on advertising and Rule 7.3 (Model Rule 7.3) on solicitation, using the Rule 1.0(a) definition of "advertisement."
Citations and references
Rules of Professional Conduct:
- New York Rule 1.17(c) (Model Rule 1.17): sale of a law practice; client protections
- New York Rule 1.15(c) (Model Rule 1.15): safekeeping of third-party property
- New York Rule 1.6(a) (Model Rule 1.6): confidential information; limited file review
- New York Rules 7.1, 7.3 (Model Rules 7.1, 7.3): advertising; solicitation
Other opinions cited:
- N.Y. State 1035 (2014): custodian of wills may review files only as needed to contact clients
- N.Y. State 1002 (2014): executor holding wills; access only as necessary to dispose of them
- N.Y. State 341 (1974): retiring lawyer's files held by another lawyer as custodian
See also
- NY State Bar Op. 1142: Delivering electronic client files and charging to print them
- NY State Bar Op. 1164: Destroying client files on request and reasonable conditions
- NY State Bar Op. 1136: Law firm sponsorship of events and raffles
Source
- Landing page: https://nysba.org/ethics-opinion-1133/