After drafting a client's will, can the lawyer keep the original in safekeeping, or must it go to the client?

Plain-English summary

Opinion E-73-1 responded to a request, prompted by the Wisconsin Supreme Court's decision in State v. Gulbankian, 54 Wis. 2d 605 (1972), for guidance on the practice of attorneys safekeeping clients' wills. The committee quoted the Gulbankian court, which disapproved of attorneys "safekeeping" wills: an attorney has no preferential claim to probate a will merely because he drafted it; with safe-deposit boxes common and Sec. 853.09, Stats., providing for deposit of a will with the register of probate, the court stated that the correct practice is to deliver the original will to the testator and to keep it only upon the client's specific, unsolicited request.

After extensive discussion, the committee concluded that any further attempt to construe Gulbankian would be of little service to the membership. It explained that the underlying ethical problem is the potential use of will preparation and estate planning as a means of soliciting or controlling the eventual probate of the testator's estate, and that all forms of direct and indirect solicitation are prohibited. In the committee's view, the Supreme Court had condemned such potential solicitation through its language on safekeeping wills absent an unsolicited client request.

The committee added that a lawyer should not proceed by propounding questions to the client or furnishing a form on which the client could elect a depository; instead, the individual lawyer may adopt a personal approach within the guiding principles of the court's opinion and the Code. It noted the court did not state whether the prohibition was prospective or applied to wills already held, and that, under committee policy, its opinions are advisory and prospective only.

Currency note

This opinion was issued in 1973, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's prohibitions on solicitation as interpreted in State v. Gulbankian. The current counterparts are SCR 20:7.3 / Model Rule 7.3 (solicitation of clients) and SCR 20:1.15 / Model Rule 1.15 (safekeeping property). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Should a lawyer keep a client's original will after drafting it?

A: Under this opinion, no, absent the client's unsolicited request. Following Gulbankian, the committee said the original will should be delivered to the testator and kept by the attorney only on the client's specific, unsolicited request.

Q: Why is safekeeping a will treated as a solicitation problem?

A: The committee explained the concern is that will preparation and safekeeping can be used to solicit or control the eventual probate of the estate, and that direct and indirect solicitation is prohibited.

Q: Can a lawyer ask the client to elect that the firm hold the will?

A: No. The committee said propounding questions or furnishing an election form would not be an appropriate procedure; the request must come unsolicited from the client.

Background and rules framework

The opinion applied the former Code's solicitation prohibitions, as construed by State v. Gulbankian and informed by Sec. 853.09, Stats., to the practice of lawyers retaining clients' wills. The current counterparts are SCR 20:7.3 / Model Rule 7.3 (solicitation of clients) and SCR 20:1.15 / Model Rule 1.15 (safekeeping property).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / SCR 20:7.3 (solicitation of clients); former Code solicitation Canons
• Model Rule 1.15 / SCR 20:1.15 (safekeeping property)

Statutes:

• Wis. Stat. § 853.09 (deposit of a will with the register of probate for safekeeping)

Cases:

• State v. Gulbankian, 54 Wis. 2d 605 (1972), disapproving attorneys safekeeping wills absent an unsolicited request
• Estate of Ainsworth, 52 Wis. 2d 152, 187 N.W.2d 828 (1971), no preferential claim to probate from drafting

See also

• WI Ethics Op. E-75-3: An Attorney Named as Trustee and Executor
• WI Ethics Op. E-80-1: Drafting a Will for a Partner's Spouse

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-73-1.pdf