When an Oregon lawyer retires or dies, can the lawyer (or the lawyer winding up the practice) discard original wills whose former clients cannot be located?
Apply this to your situation
This page answers the general question as of 2005. Ask about yours and see what the current Oregon Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
Two scenarios are presented. Lawyer A has drafted and retained original wills for many people over the years and, preparing to retire, cannot reach several testators. Lawyer B has also retained original wills; when Lawyer B dies, Lawyer C winds up Lawyer B's affairs and receives wills whose testators Lawyer C also cannot locate. The opinion asks whether Lawyer A or Lawyer C may discard the wills of clients who cannot be found.
The opinion concludes no, qualified. Client wills are client property, so under Oregon RPC 1.15-1(a) and (d), and RPC 1.2(a), the lawyer is obligated to preserve the wills or to see that they are preserved by competent successor counsel if the testators cannot be located. The opinion cross-references RPC 1.17 (sale of a law practice) and OSB Formal Op. 2005-23 (the duty to preserve client confidences continues after retirement).
The opinion notes that the disposition of wills is addressed by statute: ORS 112.800 to 112.830, with ORS 112.815 and 112.820 establishing the sole terms and conditions under which lawyers may destroy wills.
In practice
Under the Oregon rules as they stood at the time of the opinion, RPC 1.15-1 treated original wills as client property that a lawyer could not simply discard when a client could not be found, whether on retirement or when winding up a deceased lawyer's practice. Per the opinion, destruction of wills is governed by ORS 112.815 and 112.820, which set the exclusive conditions for it.
Common questions
Q: Can a retiring lawyer throw out old original wills if the clients can't be found?
A: No, qualified. The opinion concludes the wills are client property the lawyer must preserve or have preserved by competent successor counsel under RPC 1.15-1.
Q: What about wills inherited from a deceased lawyer's practice?
A: The same. The opinion concludes the lawyer winding up the practice may not discard the wills of testators who cannot be located.
Q: Can a lawyer ever destroy an old will?
A: Only under statute. The opinion concludes ORS 112.815 and 112.820 set the sole terms and conditions under which lawyers may destroy wills.
Background and rules framework
The opinion interprets Oregon RPC 1.15-1 (safekeeping property; the duty to hold and deliver client property and keep records) and RPC 1.2(a) (acting on the client's behalf), with the statutory will-disposition scheme in ORS 112.800 to 112.830. RPC 1.15-1 tracks Model Rule 1.15.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 1.15-1(a), (d) / Model Rule 1.15 (safekeeping client property)
- Oregon RPC 1.2(a) / Model Rule 1.2 (acting on the client's behalf)
- Oregon RPC 1.17 (sale of a law practice)
Statutes:
- ORS 112.800 to 112.830 (disposition of wills)
- ORS 112.815, 112.820 (terms for destroying wills)
See also
- OSB Ethics Op. 2005-23: Retired and Former Lawyer Confidences
- OSB Ethics Op. 2005-33: Withdrawal When the Client Cannot Be Found
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-43.pdf
What do the rules say today, for your facts?
This opinion is from 2005. Ezel checks the current Oregon Rules of Professional Conduct against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace