Providing a Valuable Service or Creating an Indefinite Obligation: The Arguments for and Against Attorneys Retaining Clients’ Original Estate Plan Documents

Issue January/February 2021 February 2021 By Francis R. Mulé
Probate Law Section Review
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Francis R. Mulé

On Sept. 1, 2018, the Massachusetts Rules of Professional Conduct were amended. Among the changes was the addition of Rule 1.15A, which clarifies an attorney’s obligations regarding the retention, maintenance and destruction of client files. Although the general rule permits an attorney to destroy a client’s files six years after the completion of the matter or the termination of the representation, there is an important exception that is particularly relevant to estate planning attorneys — “intrinsically valuable documents” (e.g., original wills, trusts and other estate plan documents) must either be appropriately safeguarded and delivered to the client or “retained until such time as [they] no longer possess intrinsic value.”

This new rule has added to the already wide-ranging discussion and debate among estate planning attorneys regarding whether to hold on to clients’ original estate plan documents or return such documents to the clients after the completion of the engagement. While there is no right or wrong answer on this issue, there are strong arguments on both sides, and it is in estate planning attorneys’ best interests to familiarize themselves with these arguments in order to make informed decisions regarding their own policies surrounding clients’ original estate plan documents.

The goal of this article is not to persuade people one way or the other, but rather to present the most compelling arguments on both sides in order to help estate planning attorneys evaluate, and possibly update or change, their own practices regarding their clients’ original estate plan documents.

Providing a Valuable Service: The Case for Retaining Clients’ Original Estate Plan Documents

Original estate plan documents are incredibly valuable to clients and, like their other valuables, they need to be stored safely and securely. Unlike most of a client’s other valuables, original estate plan documents also need to be accessible, sometimes on fairly short notice, in emergency situations, meaning that the fiduciaries named in the documents need to have the ability and authority to access them when the time comes. Thus, storing original estate plan documents requires balancing the need for them to be safe and secure from, e.g., fire, flood and theft, with the need for them to be accessible when they are needed.

The need to balance these competing factors can easily overwhelm individual clients, who may not have the time, space, mental bandwidth, or resources necessary to implement a practical solution. Additionally, a client may change the location of their estate plan documents and forget to update their fiduciaries on where the documents are located, leading to a mad scramble to find them in an emergency.

By retaining clients’ original estate plan documents, attorneys relieve clients of the burden of figuring out where and how to store them and needing to know exactly where the documents are stored. All clients need to remember is that the documents are “with the attorney,” and, in the event the client forgets that, it’s likely that their fiduciaries will think to call the attorney when they are trying to track the originals down.

Additionally, attorneys who store all of their clients’ original estate plan documents can take advantage of economies of scale to bring down the cost of such storage. Fireproof storage can be expensive, but it is typically far cheaper, on a per-client basis, for an attorney to either purchase a large fireproof cabinet capable of holding many clients’ documents or utilize an offsite storage service than it is for individual clients to invest in their own storage system. Further, by holding clients’ original documents, attorneys can act as a last backstop against someone attempting to access a client’s original documents for nefarious purposes by only releasing the original documents to the named fiduciary(ies) and, in some cases, requiring proof that the original documents are needed before releasing them.

Thus, retaining clients’ original estate plan documents can be seen as a valuable service the attorney is providing as part of their representation.

Creating an Indefinite Obligation: The Case for Returning Original Estate Plan Documents to Clients

While retaining clients’ original estate plan documents can be seen as a valuable service to provide clients, it is a service that can create an indefinite obligation on the attorneys themselves.

As discussed previously, Rule 1.15A provides that attorneys who retain intrinsically valuable documents, such as original estate plan documents, have an obligation to maintain such documents “until such time as [they] no longer possess intrinsic value.” This can leave attorneys on the hook for storing original estate plan documents for a long, long time. Although certain estate plan documents, such as durable powers of attorney and health care proxies, expire upon the death of the client, others, such as wills and trusts, can potentially maintain their intrinsic value long after the client (and the attorney) are dead and gone.

Because of this potential indefinite obligation, none other than the Board of Bar Overseers (BBO) itself strongly recommends that attorneys return original documents to clients rather than retaining them. In two articles written by the BBO’s bar counsel and general counsel, “Talking Trash Recycled (Again): Guidelines for Retention and Destruction of Client Files” and “New Rule on Client Files Will Provide Clear Guidance for Lawyers,” both of which are available on the BBO’s website, the BBO recommends that original documents be “copied and immediately returned to clients,” with both articles emphasizing that this includes wills and other estate plan documents.

The primary argument made by the BBO in both articles is that any original estate plan documents retained by an attorney must be returned to the client upon the attorney’s death, disability or retirement. If the attorney isn’t keeping up-to-date records on the whereabouts of the owners of all of the original documents they are holding, figuring out how to return them when the time comes can be incredibly time-consuming and burdensome. This is even more true where the attorney’s death or disability is unexpected and the task of tracking down clients and returning their documents falls to a fiduciary who may not be at all familiar with the attorney’s practice.

As I stated at the beginning of this article, my goal is not to persuade estate planners one way or the other, but rather to present the most compelling arguments on both sides, as I hope I have done.

Those of us who choose to retain clients’ original estate plan documents would do well to ensure that we develop systems to keep track of the whereabouts of our former clients in order to make the process of returning their original documents to them easier, and those of us who choose to return original estate plan documents to clients at the conclusion of the representation would do well to counsel them on how their documents should be stored. 

Francis R. Mulé is an associate at Rico, Murphy, Diamond & Bean LLP. He is the secretary of the Massachusetts Bar Association’s Young Lawyers Division, a member of the MBA’s Probate Law Section Council, and a member of the Massachusetts LGBTQ Bar Association. Mulé concentrates his practice in estate planning and estate and trust administration and, as a member of the LGBTQ community, is particularly sensitive to the needs and concerns of gender, sexual, and romantic minorities and nontraditional