State Bar Association
Files: Lawyer’s Right To Contact Prospective
lawyer who is the transferee and solely a custodian of client files arising
from a transaction other than a sale of law practice may communicate with the
prior lawyer’s clients if the lawyer does not review confidential information
in the files more than reasonably necessary to identify the contact information
of the prior lawyer’s clients and complies with the rules governing advertising
and solicitation of prospective clients.
1.6(a), 1.15(c), 1.17(c), 7.1 and 7.3
inquirer has custody of approximately eight hundred executed Last Will &
Testaments, which the inquirer received when prior counsel, to accept
employment elsewhere, closed his one-person private law practice. Before closing that practice, the prior
attorney wrote to each affected client.
In this letter, the prior attorney notified each client of the client’s
“right to” the client’s files “in my possession,” which, the letter noted,
might include “your original Last Will and Testament, Power of Attorney, and/or
Trust.” The letter explained that the
client had “the right to retrieve your files from my office – or to have them
sent to another attorney of your choosing – at any time” up to a date approximately
four months after the closing of the lawyer’s practice, the office of which,
the letter said, would remain “staffed to respond to your inquiries.” The letter said that a failure to retrieve
the files before this deadline would be deemed “consent to transfer of the
files to” the inquirer.
this same letter, counsel said that “arrangements” had been made with the
inquirer “to assume responsibility for your files.” The letter said that the author was
“confident” that the inquirer was able to “to continue to serve you with the
same level of care and expertise you have come to expect.” The letter provided the address, telephone
number, and email address of the inquirer.
The letter also underscored that the client should retain a copy of the
letter with the client’s estate documents.
“arrangements” between the inquirer and prior counsel included no exchange of
consideration between them. No financial
or other thing of value was a part of the inquirer’s assumption of
“responsibility” for the inquirer’s custodial role in maintaining possession of
those files not earlier retrieved by recipients of the prior counsel’s letter,
including, for instance, no arrangement for the prior counsel to share in
future fees, if any, that the inquirer may receive from the prior counsel’s
clients. The inquirer did no more than
take physical possession of client files previously held by a lawyer who was
required to close an office that had held the documents and who notified
clients both of their right to obtain their files and the location of the files
once the prior counsel was no longer able to maintain them.
inquirer now wishes to communicate with the individuals whose files the
inquirer holds, and in doing so to offer the inquirer’s legal services in such
matters as the clients may desire.
a lawyer write to a prior lawyer’s clients offering legal services, after the
prior lawyer (a) transferred the clients’ estate planning documents to the
inquiring lawyer and (b) informed the clients of the transfer?
is required on a number of issues that this inquiry raises.
is whether the transfer of the files to the inquirer was the sale of a law
practice within the meaning of Rule 1.17 of the New York Rule of Professional
Conduct (the “Rules”), which regulates the transfer of a law practice through a
sale. We conclude that, in the
circumstances presented to us, no sale occurred. We note with approval that prior counsel’s
letter was consistent with various client-protection provisions of Rule 1.17,
among them giving the clients the right to retain future counsel of their
choosing or to take possession of their files, Rule 1.17(c)(1), providing that
consent to the transfer to the second attorney would be presumed if not subject
to objection within a comfortable period greater than that (90 days) set in
Rule 1.17(c)(2), and providing, though incompletely, the identity and contact
information of the inquirer, Rule 1.17(c)(5) (requiring information about bar
admissions, years of practice, and disciplinary history). If the facts presented here amounted to a
sale of a law practice, we would detect a failure of strict adherence to Rule
prior counsel complied, and in our view properly so, with many of Rule 1.17’s
provisions does not alter the character of the “arrangement” that prior counsel
made with the inquirer. This was not a
sale of a law practice but the creation of a custodial relationship. The inquirer was to hold the files pending
further developments. Whether an
attorney-client relationship exists is a mixed question of fact and law beyond
our jurisdiction, but we can say with confidence that mere possession of files
does not alone create one (a storage company does not become a person’s lawyer
by holding that person’s client files).
turn, then, to the inquirer’s duties going forward. To start, ordinarily, a lawyer who comes into
possession of the property of a third party has an ethical obligation under
Rule 1.15(c) promptly to notify the third party; here, the prior counsel
already did so, but the inquirer still has an ongoing duty to preserve that
property. N.Y. State 1002 (2014). Thus, the inquirer must maintain the files
unless and until a client retrieves them or the inquirer gives notice to the
affected clients of some other disposition.
The question remains whether the inquirer may contact these persons to
offer the inquirer’s legal services.
conclude that the inquirer may do so if the inquirer complies with Rule 1.6(a)
on protecting client confidential information, and with Rules 7.1 and 7.3,
which govern, respectively, advertising and solicitation of prospective
have previously concluded that Rule 1.6(a), which dictates a lawyer’s
obligations to preserve confidential information, does not prohibit the
inquirer from inspecting estate documents, but only as may be reasonably
necessary to contact the affected person(s).
N.Y. State 1035 (2014) (a lawyer who received wills in the sale of a law
practice previously held by prior counsel, but who had not contacted the affected
persons in accordance with Rule 1.17, could review the files only as reasonably
necessary to communicate with those persons for directions on the disposition
of the files); N.Y. State 1002 ¶ 9 (2014) (a lawyer who received wills as
executor of an estate could “access or disclose the confidential information in
the wills insofar as reasonably necessary to dispose of the wills”); see N.Y. State 341 (1974) (an “attorney
who retires from practice may transfer executed Wills and other files to
another attorney, but the receiving attorney holds them only as a custodian,”
it being “generally unethical” for the lawyer “to examine the Wills or files
without the client’s consent”). Hence,
the inquirer, as custodian, may examine the files as may be reasonably
necessary to ascertain the identity and addresses of the individuals who should
be contacted about the files, but the inquirer may not, absent informed consent
from the prior lawyer’s clients or successors, review the files to recommend,
for example, unsolicited advice about improvements in or updates to the estate
the inquirer wishes to go beyond merely contacting the prior lawyer’s clients –
the prior lawyer, after all, had already provided the inquirer’s information to
those clients – and wishes in addition to offer the inquirer’s legal
services. Because the purpose of the
communication would be to promote the inquirer’s legal services, the
communication would be an “advertisement” within the meaning of Rule 1.0(a),
which defines the term to mean “any public or private communication made by or
on behalf of a lawyer” about that lawyer’s services, “the primary purpose of
which is for the retention of the lawyer.”
By reason of Rule 7.1, an advertisement may not contain statements that
are “false, deceptive or misleading” or otherwise violate the Rules. Among these is Rule 7.1(f), which requires
that any written advertisement identify itself as “Attorney Advertising,” Rule
7.1(h), which requires that the advertisement contain the name of the lawyer
and the lawyer’s principal office address, and Rule 7.1(k), which requires that
the advertisement be maintained for a period of three years. Other components of Rule 7.1 may also apply.
inquirer’s proposed communication would also fall within the meaning of
“solicitation” under Rule 7.3, which defines the term to mean an advertisement
“directed to, or targeted at,” a specific recipient or group of recipients, or
their family members or legal representatives, the primary purpose of which is
the retention of the lawyer” and “a significant motive for which is pecuniary
gain.” Rule 7.3 sets forth various
requirements on solicitations, among them the obligation to file the written
solicitation with the disciplinary committee having authority over the lawyer
(Rule 7.3(c)(1)), and to retain the names and addresses of all recipients for
at least three years (Rule 7.3(c)(3)).
If the inquirer abides by these Rules, together with those set forth
above, then we conclude that the inquirer may proceed with the proposed
communication with the prior lawyer’s clients.
opinion is intended to address only the obligations of a lawyer who receives
client files in a custodial capacity other than in the course of a sale of a
law practice. Nothing we say here is
meant to alter the prescriptions of Rule 1.17 on such sales.
15. A lawyer who is solely a custodian of
client files arising from other a transaction than from a sale of law practice
may communicate with the prior lawyer’s clients if the lawyer does not review
the confidential information in the files more than reasonably necessary to
contact those prior clients and complies with the rules governing advertising
and solicitation of prospective clients.