A lawyer is holding a former client's original will for safekeeping and the apparently incapacitated client asks for it back. Can the lawyer investigate the client's capacity before returning it?

Plain-English summary

A lawyer drafted a will for an elderly client and kept the original for safekeeping. Later the former client signed a letter, apparently prepared by someone else, asking for the will back. The lawyer had reason to believe the former client was no longer competent and might be acting under the influence of a family member who would benefit if the will were destroyed and the estate passed by intestacy. The committee was asked whether the lawyer could communicate with the former client and others to determine the client's actual wishes and competence before responding.

The committee starts from the ordinary rule that a lawyer safekeeping a former client's will must return it on request (citing N.Y. State 724 and DR 9-102(C)(4), which requires delivery of property the client is entitled to receive). The harder question is what to do when the lawyer genuinely doubts the client's competence or suspects undue influence. Drawing on N.Y. State 746 and EC 7-11 and EC 7-12, the committee notes that a client's diminished capacity places "additional responsibilities" on the lawyer, and that similar complexities can arise with an incapacitated former client.

The committee concludes that no disciplinary provision bars the lawyer from contacting the former client directly to gauge the client's wishes and competence. DR 7-104(A)(1) (communications with represented parties) does not apply, because the contact would not occur in the course of representing another client. DR 2-103 (solicitation of prospective clients) does not apply, because the lawyer would not be soliciting employment and the rule generally does not reach communications with clients or former clients. If, after whatever inquiry the lawyer deems appropriate, the lawyer still believes the former client may be incompetent, the lawyer may seek judicial guidance on how to proceed, consistent with the committee's prior opinions on lawyers who hold property amid uncertainty (N.Y. State 746, 717, and 710).

In practice

Under the New York Code as it stood at the time, the opinion holds that a lawyer holding a former client's will may make a reasonable inquiry into the client's capacity and any undue influence before deciding how to respond to a request to return it; that inquiry can include speaking with the former client and with others. The committee identifies the two rules a lawyer might worry about, DR 7-104(A)(1) and DR 2-103, and explains that neither applies on these facts. When doubt about competence persists, the committee's stated route is to seek judicial guidance rather than to act unilaterally on a request the lawyer believes may not reflect the client's genuine wishes.

Common questions

Q: Does a lawyer normally have to return a will on the former client's request?

A: Yes. The committee restates the ordinary rule, drawn from N.Y. State 724 and DR 9-102(C)(4), that a lawyer safekeeping an original will must return it when the client requests it or the lawyer is legally obligated to produce it.

Q: Can the lawyer talk to the former client to assess capacity before returning the will?

A: Yes. The committee finds no disciplinary provision that bars contacting the former client directly to determine the client's genuine wishes or to assess competence.

Q: Does the no-contact rule (DR 7-104(A)(1)) prevent the lawyer from reaching out?

A: No. That rule restricts communicating with a represented party while representing another client, and the lawyer's contact with the former client here would not occur in the course of representing someone else.

Q: What if the lawyer still doubts the client's competence after inquiring?

A: The committee says the lawyer may seek judicial guidance on how to proceed, consistent with prior opinions allowing a lawyer uncertain about property held for safekeeping to apply to a court.

Background and rules framework

The opinion applies New York's former Code of Professional Responsibility. DR 9-102(C)(4) requires a lawyer to deliver property the client or third person is entitled to receive (a facet of Model Rule 1.15). EC 7-11 and EC 7-12 address the added responsibilities owed to a client whose capacity is in question (the subject now treated by Model Rule 1.14). DR 7-104(A)(1) is the no-contact rule for represented parties (analogous to Model Rule 4.2), and DR 2-103 governs solicitation of prospective clients (analogous to Model Rule 7.3). The committee reads the two restrictive rules narrowly so that neither blocks a good-faith inquiry into a former client's capacity.

Citations and references

Rules of Professional Conduct:

• MR 1.14 (client with diminished capacity); NY EC 7-11, EC 7-12
• MR 1.15 (safekeeping property); NY DR 9-102(C)(4)
• MR 4.2 (communication with represented persons); NY DR 7-104(A)(1)
• MR 7.3 (solicitation); NY DR 2-103

Other opinions cited:

• N.Y. State 746 (2001): representing a client with diminished capacity; when a lawyer may petition for a guardian
• N.Y. State 724 (1999): a lawyer holding a client's original will must keep custody until the client requests it
• N.Y. State 717 (1999) and N.Y. State 710 (1998): a lawyer uncertain about property held for safekeeping may seek a court's direction

See also

• NY State Bar Op. 1163: Duty when unable to locate a missing client
• NY State Bar Op. 986: Guardianship conflict for an incapacitated client's sister
• NY State Bar Op. 1182: Disposition of unclaimed wills of missing testators
• NY State Bar Op. 1078: Confirming no will to a former client's son

Source

• Landing page: https://nysba.org/ethics-opinion-775/