Opinion No. 1990-5

(Inquiry No. 265 )

Retaining possession of wills.

An attorney may retain existing wills in order to enforce his claim to be paid for preparing new wills.

Code Provisions:
Ethical Consideration 5-7

Described Facts:
Inquiring counsel was consulted about estate-planning-and preparation of new wills for a client and his wife. It was agreed that the client would pay the attorney’s fee at an hourly rate with no charge for the first hour. Since the estate was worth approximately $5 million, the services required 3.5 hours. After inquiring counsel prepared the new wills, the client refused to pay the fee and demanded that the attorney return the prier wills, which he held in his file.

May an attorney refuse to return current existing wrrrs-until he has been paid an agreed upon fee to prepare new wills?

Subject to some limitation, an attorney may assert a retaining lien against existing wills that he holds in his file.

An attorney has a common law right to retain papers and property of his client in order to force the client to pay a fee that is owed to the attorney. The Queens County Surrogate has held that this possessory right extends to all the property of the client, and “(N)o good reason exists why a retaining lien should not apply to a will while the client is living.” (In re REISS’ WILL, 200 Misc. 697, 107 NYS2d 168, 1950) The court went further to caution, however, that the attorney has a legal obligation to produce the will upon the client’s death and cannot avoid the obligation on the ground of his retaining lien. In a Nassau County Case, Surrogate John D. Bennet applied this principle to require an attorney to file a will after the client’s death in spite of the attorney’s retaining lien. (In re EICHENBAUM’S WILL, 16 Misc.2d 655, 184 NYS2d 283, 1959.)

Ethical Consideration 5-7 recognizes that it is not improper for an attorney to protect his right to collect a fee for his services on the assertion of legally permissible liens. This Committee has noted, however, in Opinion 89-28 that the assertion of a retaining lien by itself does not stop litigation or prevent actions to proceed as the law requires.

Inquiring counsel may refuse to return existing wills to a client until the agreed upon fee has been paid, but he cannot refuse to file the wills in court if the clients dies.

(Approved by Executive Subcommittee 1-30-90; approved by full Committee 2-21-90)