Had a recent death in he family and I was named co-executor. Have had problems with an attorney who refuses to turn a copy of the Will over. Through an acquaintance I was told to look under article 73. There is another co-executor and they're refusing. It doesn't make any sense to me why they won't give me a copy. I am searching for an attorney's but most are refusing because I need it to be on a contingency. Yes, I know I need an attorney but Article 73 is supposed to give me some advise. Please help!!
May have been referring to Probate Code section 75-
§ 75. DUTY AND LIABILITY OF CUSTODIAN OF WILL. Upon
receiving notice of the death of a testator, the person having
custody of the testator's will shall deliver it to the clerk of the
court which has jurisdiction of the estate. On sworn written
complaint that any person has the last will of any testator, or any
papers belonging to the estate of a testator or intestate, the
county judge shall cause said person to be cited by personal service
to appear before him and show cause why he should not deliver such
will to the court for probate, or why he should not deliver such
papers to the executor or administrator. Upon the return of such
citation served, unless delivery is made or good cause shown, if
satisfied that such person had such will or papers at the time of
filing the complaint, such judge may cause him to be arrested and
imprisoned until he shall so deliver them. Any person refusing to
deliver such will or papers shall also be liable to any person
aggrieved for all damages sustained as a result of such refusal,
which damages may be recovered in any court of competent
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956.
Its "chapter" not "article" and you were given the wrong number. It's Texas Probate Code Chapter 75 that would be of some help to you in understanding your rights but you cannot enforce your rights as a co-executor without a lawyer. Because an executor is a fiduciary under Texas law you cannot represent yourself pro-se. So, you cannot use Chapter 75 without a lawyer. Contingent fees in probate cases are often limited to 25% of the estate by the court. So, you would need a significant estate to make it worthwhile for the lawyer. Hourly rates and fees vary from county to county and because of the complexity of the estate. Keep searching. You will find one. I would think that it would be fairly easy to find one who will work on an hourly fee basis for the sole purpose of getting the Will deposited with the clerk so that you can then evaluate whether or not to go forward.
Your relief may not rest in the Probate Code alone, but rather under Texas Ethics. The Supreme Court rendered an ethics opinion on a similar fact pattern and stated as follows (in part):
The Supreme Court of Texas Professional Ethics Committee For the State Bar of Texas Opinion Number 570
"...Specifically, prior Professional Ethics Committee Opinions have recognized that a lawyer is permitted to retain a client file pursuant to a proper legal claim so long as doing so will not prejudice the client in the subject matter of the representation. See e.g. Opinion 411 (January 1984) and Opinion 395 (May 1979, modified March 1980).
It is also important to note that a lawyer's file may contain many different types of documents or records created by the lawyer, documents obtained from the client, documents obtained from third persons, pleadings, court orders and contracts. A lawyer's ethical obligations may vary depending on the type, source, or content of the document and other relevant factors. This opinion is limited to a consideration of the issue with respect to notes created by a lawyer, and this opinion does not address the issue with respect to other types of documents or information contained in a lawyer's file.
Rule 1.14(b) of the Texas Disciplinary Rules of Professional Conduct provides that "[e]xcept as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client ... any funds or other property that the client ... is entitled to receive ...." In Hebisen v. State, 615 S.W. 2d 866 (Tex. App. - Houston [1st Dist.] 1981, no writ), the court interpreted the meaning of the predecessor of current Rule 1.14(b), holding that the term "other properties" included the client's papers and other documents that the lawyer had in his file. 615 S.W.2d at 868.
Rule 1.15(d) provides as follows:
d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation."
Read together, Rules 1.14(b) and 1.15(d) provide that, generally, the documents in a lawyer's file that are property to which the client is entitled must be transferred to the client upon request unless the lawyer is permitted by law to retain those documents and can do so without prejudicing the interests of the client in the subject matter of the representation.
In In re George, 28 S.W.3d 511 (Tex. 2000), the Court ruled on the issue of whether the work product of disqualified counsel should be made available to the disqualified counsel's client and successor counsel. The Court struggled with the conflict between the client's right to access work product and the interest in preserving the purposes of the underlying disqualification by restricting access to the tainted work product. In the course of its analysis, the Court noted that "[t]he attorney is the agent of the client, and the work product generated by the attorney in representing the client belongs to the client." 28 S.W.3d at 516, citing Rule 1.15(d) and the opinion in Hebisen v. State, discussed above.
Under the Texas Disciplinary Rules of Professional Conduct, a lawyer must upon request provide to a former client the notes of the lawyer from the lawyer's file for that former client except when the lawyer has the right to withhold the notes pursuant to a legal right such as a lawyer's lien, when the lawyer is required to withhold the lawyer's notes (or portions thereof) by court order, or when not withholding the notes (or portions thereof) would violate
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