This article addresses the meaning and practical application of lawyers’ duties to safeguard client property under New York Rule of Professional Conduct (NYRPC) 1.15. This is the rule that perhaps poses the greatest set of challenges for individual lawyers and large law firms alike. Generally, it addresses the obligations that arise in connection with holding client funds—the obligation not to commingle; the obligations with respect to bank accounts; and the bookkeeping and notification requirements. This article focuses on another aspect of the rule—the duties in connection with holding other kinds of property. A recent opinion from the New York State Bar Association Committee on Professional Ethics (the Committee) Opinion 1182 titled “The Disposition of Wills,” concluded that lawyers have a duty to retain wills in their possession “indefinitely”, even when the testator cannot be found and many decades have passed since their execution. This obligation places an unfair burden on lawyers, particularly solo and small firm practitioners who cannot afford to hold on to records forever.

The problem of holding funds for missing clients is expressly dealt with in Rule 1.15(f) (Missing Clients), which provides:

Whenever any sum of money is payable to a client and the lawyer is unable to locate the client, the lawyer shall apply to the court in which the action was brought if in the unified court system, or, if no action was commenced in the unified court system, to the Supreme Court in the county in which the lawyer maintains an office for the practice of law, for an order directing payment to the lawyer of any fees and disbursements that are owed by the client and the balance, if any, to the Lawyers’ Fund for Client Protection for safeguarding and disbursement to persons who are entitled thereto.

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