MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2007-04
Safekeeping Property: Duty of in-house counsel with respect to original wills prepared by outside counsel for the benefit of non-profit religious organizations
The Committee on Ethics of the Maryland State Bar Association (the “Committee”) has considered your recent inquiry and I have been designated to respond to you on the behalf of the Committee.
You serve as in-house counsel for a non-profit religious organization. During the 1960’s the organization, as part of a planned giving program, assisted members in the preparation of their Last Will and Testaments. These Wills, prepared by legal counsel, typically included a gift to the organization.
The original Wills were retained by the organization for safe-keeping. The Wills were prepared for persons located throughout eight jurisdictions: Delaware, the District of Columbia, Maryland, New Jersey, Ohio, Pennsylvania, Virginia and West Virginia.
In your letter of inquiry you ask for guidance on your obligations vis-a-vis the Wills in your organization’s possession. Specifically, you ask whether you have any obligation to preserve the Wills and whether you are under any obligation to locate them even though you, personally, did not draft or otherwise participate in the drafting of the Wills.
The Committee will comment on the propriety under the Maryland Rules of Professional Conduct (the “Rules”) of the issues raised. At the outset, the guidelines for the Committee in rendering formal opinions do not permit the Committee to render opinions on legal issues. Thus, to the extent that your inquiry requests a legal opinion, we decline to give one. However, we note that Maryland law provides criminal penalties for the destructions of a will by a person who receives a will for safe custody unless instructed to do so by the maker of the will. See Md. Estates & Trusts Code Ann. §8-702. We also note that Maryland law provides for criminal penalties where a person having custody of a will willfully fails or refuses to deliver a will to the register of wills after being informed of the death of the testator. See Md. Estates & Trusts Code Ann. §4-202.
An original will for which the client has paid is the property of the client. As such, Maryland Rule of Professional Conduct 1.15, “Safekeeping Property,” applies, requiring the attorney holding the original wills to maintain them separate from the attorney’s own property and “appropriately safeguarded.” Nowhere in the Maryland Rules of Professional Conduct is there any provision permitting the attorney to deem such property “abandoned” at any particular time, or to dispose of it in any fashion other than by delivering it to the client or other appropriate person. In addition to the requirement of safekeeping the property itself, Rule 1.15 requires that “complete records of such…property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.” See also, Maryland Committee on Ethics Opinion 88-91.
Since you are now in the position of holding original Wills for makers whose whereabouts are unknown, it is the opinion of this Committee that you must make all reasonable efforts to find the makers. If you are unable to do so, you must make all reasonable efforts to locate the personal representative, heirs, or other interested persons to determine the disposition of the Wills. The Committee suggests writing letters to each maker at the addresses found in your files, if any. If this is unsuccessful, the Committee suggests employing skip tracers, heir locator services or Internet resources such as the Social Security Death Index to find the makers. Or, you may take out an advertisement in a newspaper of general circulation listing the names of the people whose original Wills are in the possession of your organization, separately in each jurisdiction where a maker resided when he or she executed the Will.
If the search for the makers is unsuccessful, you must continue holding the Wills, even if the makers have long since vanished or are most likely deceased. You may not simply discard the Wills under any circumstances.
After all other efforts have failed, you may consider filing the Maryland Wills with the Register of Wills in the jurisdiction stated in the Wills. For non-Maryland wills, you will need to check the laws of each State where a maker resided when he or she executed the Will to see if such a procedure is permitted.
And even if it is your position that your organization, as opposed to you, is in possession of the Wills, the organization has legal obligations vis-a-vis the Wills. Your ethical responsibility in the event you believe the organization is not acting appropriately with respect to the Wills is set forth in Rule 1.13(b) and (c), which provide:
- If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances, to the highest authority that can act on behalf of the organization as determined by applicable law.
- When the organization’s highest authority insists upon action, or refuses to take action, that is clearly a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is reasonably certain to result in substantial injury to the organization, the lawyer may take further remedial action that the lawyer reasonably believes to be in the best interest of the organization. Such action may include revealing information otherwise protected by Rule 1.6 only if the lawyer reasonably believes that:
- the highest authority in the organization has acted to further the personal or financial interests of members of the authority which are in conflict with the interests of the organization; and.
- revealing the information is necessary in the best interest of the organization.
For members of the Maryland State Bar Association, Opinions of the Committee may be obtained from the Committee’s website: www.msba.org.
We hope the foregoing is responsive to your inquiry and we thank you for consulting the Committee on this matter.
REFERENCES:
Maryland Rules of Professional Conduct 1.15 and 1.13
Ethics Opinions: Maryland Committee on Ethics Opinion 88-91
Statutes: Md. Estates & Trusts Code Ann. §8-702
Md. Estates & Trusts Code Ann. §4-202
ASSIGNED TO: Hon. Mark D. Thomas
DATE ASSIGNED: May 8, 2008
DATE DISTRIBUTED: June 9, 2008