Can a lawyer who holds a deceased client's original will contact the executor or beneficiaries to tell them he has it?

Plain-English summary

The committee addressed whether a lawyer who has kept a client's original will for safekeeping, and who later learns of the client's death, may contact the named executor or the beneficiaries to advise them that he holds the will. It began by recognizing the solicitation concern: a lawyer holding an original will has, or may be perceived to have, a unique opportunity to obtain additional business, much as the committee had noted in N.Y. State 481 (1978) about a will draftsman naming himself executor. Under EC 2-3 and DR 2-103(A), it would clearly violate the Code for the lawyer to contact the executor or beneficiaries to recommend himself to probate the will or represent the estate.

The committee found the safekeeping situation different. A lawyer asked to hold the original will has an ethical, and likely a legal, obligation to carry out the client's wishes by notifying those who may propound the will that he possesses it (citing the Surrogate's Court Procedure Act and N.Y. Penal Law section 190.30). The lawyer could file the will in Surrogate's Court under SCPA section 2508 to avoid any solicitation question, but the committee said that should not be the only option, because filing can delay probate and inconvenience the executor.

The committee concluded that the more sensible course is for the lawyer to notify the executor, the beneficiaries, or any other person who may propound the will that he holds it, while making no suggestion that he be retained and making clear, if asked, that the executor is free to retain counsel of his own choice. The committee added that, although not essential to ethical propriety, prudence indicates the notification be in writing to avoid any misunderstanding of the lawyer's purpose. The question was answered in the affirmative, subject to those conditions.

Currency note

This opinion was issued in 1980, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the solicitation restrictions now appear at Rule 7.3, and the duty to safeguard property held for others at Rule 1.15). 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 Treat this page as historical context, not current guidance.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 lawyer holding a deceased client's will tell the executor he has it?

A: Yes. The committee concluded the lawyer may notify the executor, beneficiaries, or anyone who may propound the will, because he has an obligation to carry out the safekeeping client's wishes.

Q: What may the lawyer not do when giving that notice?

A: He may not suggest that he be retained to probate the will or represent the estate, and if asked he must make clear the executor is free to choose his own counsel; recommending himself would violate EC 2-3 and DR 2-103(A).

Q: Does the lawyer have to file the will in court instead?

A: No. The committee noted the lawyer may file the will in Surrogate's Court to sidestep any solicitation question, but held that filing is not the only permissible option because it can delay probate.

Background and rules framework

The opinion applied the Code's solicitation provisions, EC 2-3 and DR 2-103(A), which bar a lawyer from contacting a non-client to recommend himself for paid employment, to a lawyer's duty to notify others that he holds a deceased client's will. The closest current Model Rule analogues are Rule 7.3 (solicitation of clients) and Rule 1.15 (safekeeping property of clients and third persons).

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation)
• MR 1.15 (safekeeping property)
• NY EC 2-3, DR 2-103(A)

Statutes:

• N.Y. SCPA secs. 1401, 1402, 2508
• N.Y. Penal Law sec. 190.30
• N.Y. Judiciary Law sec. 479

Cases:

• Scholen v. Guaranty Trust Co., 288 N.Y. 249, 43 N.E.2d (1942), duty regarding a will held for a client

Other opinions cited:

• N.Y. State 481 (1978): will draftsman naming himself executor
• N.Y. State 188: notifying a client to review an old will

See also

• NY State Bar Op. 516: Insurance company lawyer preparing a will and estate plan
• NY State Bar Op. 524: Donating legal services for a charity auction
• NY State Bar Op. 527: Soliciting contributions for a firm's own litigation

Source

• Landing page: https://nysba.org/opinion-521/