The inquirer requests an opinion on the question of whether the general
practice of an attorney's retaining original wills of clients constitutes
unethical conduct.
The Advisory Committee has considered this question
and is of the opinion that it is ethical for a lawyer to retain
in a safe place the original will of a client where it is done with
a client's express permission or at his express request.
This precise question has been before the A.B.A.
Standing Committee on Professional Ethics. The subject matter of
Informal Opinion No. 981 rendered April 21, 1967, was: "Propriety
of Attorney Acting as Repository for Original of Client's Will".
Informal Opinion No. 981 provides in part as follows:
"It
is the opinion of this Committee that as to the practice of attorneys
acting as custodians for their client's wills, there is no question
of ethics involved. Nor has there been any ruling or opinion of
this Committee on the question presented. Moreover, it appears that
the question here is one of law and not of ethics.
The
Committee finds nothing unethical about a lawyer ... acting as custodian
of the original of a client's will if this is done with the client's
express permission."
The
Code of Professional Responsibility appears to confirm such opinion.
DR 9-102 in treating the subject of preserving the identity of funds
and property of a client, provides in subparagraph (B):
"
(B) A lawyer shall:
Identify
and label securities and properties of a client promptly upon receipt
and place them in a safe deposit box or other place of safekeeping
as soon as practicable.
Maintain
complete records of all funds, securities, and other properties
of a client coming into the possession of the lawyer and render
appropriate accounts to his client regarding them.
Promptly
pay or deliver to the client as requested by a client the funds,
securities, or other properties in the possession of the lawyer
which the client is entitled to receive."
This
disciplinary rule assumes that property of a client will be left
in the possession of a lawyer from time to time. It makes no distinction
between an original will and other valuable documents of the client,
and there would seem to be no reason why such a distinction should
be made.
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