California Ethics Opinion 2007. ETH 2007-173. THE STATE BAR OF CALIFORNIASTANDING COMMITTEE ONPROFESSIONAL RESPONSIBILITY AND CONDUCTFORMAL OPINION NO. 2007-1732007ISSUES:1. May an attorney, consistent with ethical obligations, deposit a client's will or other testamentary documents with a private will depository, without the client's consent? 2. May an attorney, consistent with ethical obligations, register a client's will or other testamentary documents with a private will registry, without the client's consent? DIGEST: An attorney who retains a client's will or other estate planning documents on deposit may terminate the deposit in accord with the client's instructions and/or consent. If the attorney cannot locate the client, the attorney may only terminate the deposit pursuant to Probate Code section 700, et seq. An attorney may register certain identifying information about a client's will or other estate planning documents with a private will registry if the attorney can determine, based upon knowledge of the client, the client's matter and investigation of the will registry, that registration will not violate the attorney's fiduciary duties of confidentiality and competence. AUTHORITIES INTERPRETED: Rule 3-100 and 3-110 of the Rules of Professional Conduct of the State Bar of California Business and Professions Code section 6068, subdivision (a) and (e) Evidence Code section 912(d) Probate Code sections 700, et seq. STATEMENT OF FACTS In 1973, Attorney drafted a will for Client. At the time, Attorney and Client agreed that Attorney would retain possession of the executed original will. By 2003, Attorney is contemplating retirement and would like to terminate the deposit. However, Attorney has not heard from Client for 25 years, and recent efforts to locate the client have been unsuccessful. Attorney wants to ensure that Client can obtain access to his will at a future time or, in the event of his death, that the client's heirs can locate the will. Therefore, Attorney is considering either depositing the original will with a private will depository and/or registering certain information about the will with a private will registry. Attorney's file contains no notes regarding communications with Client, Attorney has limited recollection of Client, and has no independent recollection of any communications with Client. BACKGROUND INFORMATION Some lawyers who prepare wills or other estate planning documents retain the original executed documents on deposit for safe-keeping. Consequently, an attorney who is retiring or becomes unable to continue practicing law may have original wills and other estate planning documents in his or her possession. If the attorney can, with reasonable diligence, locate the former client, the attorney is ethically obligated to do so and to act in accordance with the client's lawful instructions regarding disposition of the documents. The more challenging issue is presented when the attorney cannot locate the former client. There are two types of commercial enterprises that have recently started doing business nationally to address these issues: will depositories and will registries. A will depository is a private, online resource for locating, storing, and retrieving original wills. A will depository involves the actual delivery of a will to a central privately operated entity or person for safekeeping. For purposes of this opinion, a will registry is an online searchable database of vital information about a will, maintained by a private entity or person. The information stored in a registry would normally include...
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