Ethics Hotline & Opinions

ETHICS DOCKET NO. 1988-91

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-91

Safekeeping Property: Duty of counsel with respect to Wills where client cannot be located


Your letter indicates that your law firm is in possession of a number of Wills of individuals that cannot be located. Efforts have been made to contact these individuals by writing to them at their last known address and seeking current addresses or telephone numbers by going through current telephone directories. You indicate that it is conceivable that some of these individuals have died, have prepared new Wills, have moved to other geographical areas or have done nothing regarding the Wills that had been drafted for them. You ask the Committee four questions:

  1. What is your duty regarding these wills?

  2. Should you continue to safe keep the Wills in your office safe or file them for safekeeping with the Orphan's Court?

  3. What is your liability/responsibility in those situations in which one has died and the firm has never been requested to produce or acknowledge if a Will exists?

  4. What, if any, policy does the Committee recommend for the retention of Wills for clients?

Rule 1.15 (a) of the Maryland Rules of Professional Conduct addresses lawyers' responsibilities regarding the safekeeping of property. That rule reads as follows:

Rule 1.15. Safekeeping Property

(a) A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

The comment to Rule 1.15 states that lawyer should hold property of others with the care required of a professional fiduciary. Property of clients should be kept separate from the lawyer's business and personal property.

In light of Rule 1.15 and the comment thereto, it is the Committee's opinion that your firm's duty regarding these Wills is to continue to safe keep the Wills in your office safe presuming that those were the instructions of your client at the time the Wills were executed and delivered to you. As far as Wills that might have been drafted but were not executed by your clients, it is the Committee's opinion that Docket 85-77 relating to the disposition of files generally is applicable.

As to your third inquiry regarding your firm's potential liability/responsibility regarding the safekeeping of Wills, it is not this Committee's province to opine on matters of law.


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DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.