OBLIC recently addressed the topic of retaining client wills in our HOTLINE QUESTIONS Series. An Ethics Opinion 1182 from the New York State Bar Association Committee on Professional Ethics emphasizes the importance of the recommendations described in that OBLICAlert.

The referenced ethics opinion was sought by a New York attorney who had over 500 original client wills (some prepared by that attorney or that attorney’s firm, and many prepared by other attorneys to whom they had succeeded). Some of the wills were over 70 years old! As OBLIC recommends, the NY attorney conducted a due diligence search in an attempt to locate the testators, executors or beneficiaries. A search was completed of office records, court records, and public information available on the internet. When these people could not be located, the lawyer asked the Ethics Committee for guidance to dispose of the wills.

The New York Rules of Professional Conduct do not explicitly answer the question (nor do those of Ohio). NY Ethics Opinion 1182 addressed an attorney’s duties when the attorney is unable to locate the testator or another person with an interest in the will, after undertaking reasonable efforts.

OBLIC recommends if you still have original client wills, NOW is a good time to begin the process of trying to locate the clients to return the wills. If you are drafting new client wills, give the original executed will to the client or obtain the client’s consent to file the will with the court. At the conclusion of the representation, send a File Closing Letter. Following these steps should help avoid encountering the situation faced by the New York lawyer described above.