First let me say in all the years I have been here a couple of our attorneys have personally contacted me to give me some advice on topics I have asked about. Which I greatly appreciated that they reached out. I offered to pay them for their advice and they declined. I know, not a huge surprise because of the quality of people here.

The question I have is about a family member who has a long history of failed relationships. There will be an issue at some point with one of them in relationship to entitlement to assets when the family member dies. This person is devious beyond all measure. The family member has had an attorney for years who is old and does not practice anymore.

Question is can one (executor of the estate/poa) request records from that attorney so a new attorney can be prepared for what most likely will lie ahead in terms of litigation of the estate? If that makes sense.
The family member who this pertains to is not in a position health wise to want to deal with this situation so it will ultimately fall on the family member who will be in charge with settling the estate.
That person does not have access to years of history/records that will ultimately have to be used to counter to the case made by the other person.

Screwed up I know.

Thanks all. Again my question is about getting attorney/client records for the new attorney to sort this out for the executor.

Maybe the executor of the estate with poa can have the new attorney (which is hired by them, not the family member with the issue). Will request all the client/attorney records from the old attorney if that is how it works. I just do not know.

This message has been edited. Last edited by: old rugged cross,

Not an attorney, nor have I slept in a Holiday Inn Express in a while, however, the person living would need to convey powers to the individual acting on their behalf, generally a POA would be used to give someone the authority.

It should be a durable POA and explicitly list the things that are allowed under it to be handled.

Deal with quite a bit of life insurance settlements and estates, it's important that you get on the situation and get the proper documentation done to protect the party.

Or you could simply do a conference call with the old attorney and have that person instruct them to forward the documents to the new attorney, and what if anything he/she would want such as a letter via email/fax instructing them to do it...

Also not an attorney and did not stay at a Holiday Inn Express.

You might work it two different ways.... reach out to the firm that currently has the records and see what their plans are. At least you might have a starting point for finding an attorney that will take on the case. You can probably get that general information without having a POA - since you'll be asking general questions and not asking for anything confidential. You'll also find out what they will want to see as a condition of transferring their files.

The other way is to seek out new legal counsel and get their input on the steps to be taken.

They should, however the living family member will need to specifically authorize the transfer from the old attorney to the new person. A letter should suffice (and the old attorney will insist on this).

quote:

The family member has had an attorney for years who is old and does not practice anymore.

Not an attorney, but I've had attorneys as colleagues or associates for going on five decades. And I've been executor/personal representative for a couple estates.

You may be assuming that:
a) those records still exist,
b) that they are currently in the possession of an attorney who is no longer in practice, and
c) that those records will still be around and in the possession of said individual after the relative passes.

My advice would be to check ASAP with that attorney, with the relative in question either present or on a conference call/zoom, and see what the current status is of the records on this matter. Once you know where the records are, you can then make a couple scenarios of when they may be needed and make your own assessment of what the status of the records might be in the future.

I also suggest you ask what the attorney did with his practice (closed/transferred to an associate). If it was closed, then a follow-on question might be to ask for a few recommendations on attorneys for future reference.

quote:

hanks all. Again my question is about getting attorney/client records for the new attorney to sort this out for the executor

^^^^^^^^^^
I would assume the same as medical records. Signed release form is the avenue.

I suppose things could differ by state, but I am quite confident that the attorney who is no longer practicing is not going to be paying to store old files in perpetuity. Maybe he took them to his garage or attic when he closed his practice.

I would imagine that he would have sent out letters to clients saying "I'm closing, come get your file by X date or it will be destroyed".

In reality, there's probably not much in those files that is not public record, or would be obtainable from the original sources, ie. banks or mortgage companies.

Generally speaking, after the new attorney is retained he or she requests to pick up the file from the old attorney if the client can’t or doesn’t wish to.

You say the old attorney is no longer practicing-if they sent notice they were closing up shop, they usually tell you you must pick up your file within a certain period of time, or after a date certain the file will be destroyed. If you are talking about estate planning files, the client would already have been given the originals after signing. The originals should be in possession of the family member. The lawyer would just have copies.

I would also say whoever has this POA should read it and know whether the POA was effective immediately, or is only valid upon the disability of the grantor. If said grantor is not “disabled” by the definition of the document, just “or just not feeling up to dealing with it” may mean the agent is not able to exercise those powers.

Generally speaking, the file belongs to the client. When the client dies the file belongs to the estate. The personal representative of the estate should have no problem getting the file because they have the right (and sometimes the duty) to file lawsuits in the name of the estate.

The file belongs to the client, as DaveL says. Which means the estate should have access to it. However, the file of a simple will may not have much in it other than the will itself, which they already have. Maybe some notes about the decedent's property, etc., but probably not much else. In other words, the lawyers file may not shed much light on any potential disputes.

I don't know how long lawyers have to keep files in your state, but once the original guy is retired and maybe even dead, those files may be gone.

AS intimated by many above, it is always easier to deal with situations like this when all parties are alive and active rather than after one is dead/retired/etc., and you have to rely on a possibly inaccurate or incomplete document to convey authority. I'm not a lawyer, but I've administered several estates, one of them quite complicated. I've seen the damage that contention and unrealistic expectations can do to a family, only way to be clear is when all parties involved are able to contribute.

Sorry that the failing health of your loved one makes this difficult, but it will be much more difficult when she's gone. Get it out of the way now - by having the party in failing health instruct her long-time attorney to transfer whatever records he has maintained (which may be much less than you expect) to her, or her executor's attorney.

Sounds like you are trying to protect against unwarranted claims from an ex, in which case, legal records may be useful (those maintained by the court, not by an attorney).