Ezel / Ethics Opinions / OSB
OSB August 2005

When a lawyer leaves a firm, must the firm turn over original wills and client property the departing lawyer requests?

Short answer: The opinion concludes the firm may hold original wills and client property until the clients themselves direct where it should go, but once a client so directs, the firm must promptly send the property as requested, subject to any valid lien, and may not require the client to come to the office.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

While at a firm, a lawyer drafted wills and handled business matters for many clients. With the clients' consent, the firm retained the original wills and certain client property, such as securities. After the lawyer left the firm, the lawyer asked the firm to turn the original wills and property over to the lawyer. The opinion asks whether the firm may refuse until it hears from the clients, and whether it may withhold the materials after the clients direct that they go to the lawyer.

The opinion concludes the firm may refuse until it receives notification from the clients (question 1, yes), but may not withhold the materials after that notification (question 2, no). It anchors the duty in Oregon RPC 1.15-1(a) and (d), which require a lawyer to safeguard client property and to promptly deliver property the client is entitled to receive. Subject to the limitations noted in OSB Formal Ethics Opinions 2005-43 (wills) and 2005-48 (other property), the firm must preserve the wills and property until the client directs otherwise.

Once a client makes the request, the opinion concludes the firm must promptly send the property as the current or former client directs, subject to any lien rights the firm may have under Oregon RPC 1.16(d). The opinion adds that while the firm may ask for written authorization, it may not require the client to physically come to the office to retrieve materials when the client directs that they be sent or given to the lawyer.

In practice

The opinion holds that, under the Oregon property rules as they stood at the time of the opinion, the client, not the departing lawyer or the firm, controls where original wills and client property go: the firm safeguards the property and may confirm the client's wishes before releasing it, but must release it promptly on the client's direction, subject only to a valid lien, and cannot condition release on an in-person pickup. Verify the current text of Oregon RPC 1.15-1 and RPC 1.16 before relying on any specific step.

Common questions

Q: My old firm is holding my clients' original wills. Do they have to give them to me?

A: Not until the clients say so. The opinion concludes the firm may wait for the clients' direction, but once a client directs that the materials go to you, the firm must promptly send them, subject to any valid lien.

Q: Can the firm wait to hear from the client before releasing the property?

A: Yes. The opinion concludes the firm may refuse to release original wills or client property until it receives notification from the client who owns them.

Q: Can the firm make the client come to the office to pick up the materials?

A: No. The opinion concludes the firm may request written authorization but may not require the client to physically come to the office when the client directs that the materials be sent or given to the lawyer.

Background and rules framework

The opinion interprets Oregon RPC 1.15-1(a) and (d) (safekeeping and prompt delivery of client property) and RPC 1.16(d) (duties on termination, including retaining-lien rights), corresponding to Model Rules 1.15 and 1.16. The analysis treats original wills and securities as client property the client is entitled to direct.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.15-1(a), (d) / Model Rule 1.15 (safekeeping; prompt delivery)
  • Oregon RPC 1.16(d) / Model Rule 1.16 (duties on termination; lien)

Cases:

  • In re Boothe, 303 Or 643, 740 P2d 785 (1987)

Other opinions cited:

  • OSB Formal Ethics Op. No. 2005-43: preserving a missing client's will
  • OSB Formal Ethics Op. No. 2005-48: holding client funds in trust

See also

Source

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