LEO: Attorney-Client Relationship - Power of  LE Op. 1339

Attorney-Client Relationship - Power of Attorney - Termination

of Professional Relationship - Representation Within the Bounds

of the Law: Attorney's Duty to Client to Deliver Power of

Attorney Which was Allegedly Forged.

May 8, 1990

You have asked the Committee to consider whether an attorney has an

ethical obligation to release a power of attorney executed by the

attorney's client's ex-wife to either the client or his ex-wife under the

following facts.

You have stated that an attorney was retained by A and B to determine the

owners in whose name title was vested on a parcel of real estate. The

attorney's title examination revealed that A, B, and C owned an undivided

interest in the property. You indicate that the three decided to sell the

property and, in preparing for closing, the attorney prepared a power of

attorney for C and his wife, both of whom resided out of state. You also

stated that, prior to settlement, C and his wife were divorced,

eliminating a need for the wife's power of attorney. In addition, for

other reasons, the settlement never went through. Finally, you indicated

that an allegation has since been made that the power of attorney signed

by C's now ex-wife was a forgery. Now, both C and his ex-wife have

requested that the power of attorney be delivered to them by the attorney.

The appropriate and controlling Disciplinary Rule relative to your

inquiry is DR:2-108(D) which provides that, upon termination of

representation, a lawyer shall take reasonable steps for the continued

protection of a client's interests, including giving reasonable notice to

the client, allowing time for employment of other counsel, delivering all

papers and property to which the client is entitled, and refunding any

advance payment of fee that has not been earned. The lawyer may retain

papers relating to the client to the extent permitted by applicable law.

Of significance to the facts you present, in addition, is DR:7-102(A)(6)

which provides in pertinent part that, in his representation of a client,

a lawyer shall not participate in the preservation of evidence when he

knows or it is obvious that the evidence is false.

The Committee has previously opined that the "applicable law" under which

an attorney may retain papers relating to the client's matter is that

which relates to an attorney's lien for legal fees owed by the client. (

See LE Op. 1171) Since you have not indicated in the facts of the

inquiry that any legal fees are owed to the attorney by C or his ex-wife,

the Committee will assume that no statutory or common law possessory lien

exists upon which the attorney may predicate his retention of the client's

power of attorney.

The Committee previously opined in LE Op. 1171 that items which

constitute attorney work product were purchased by the client by the

payment of legal fees, and as such, were considered the property of the

client. Therefore, if the attorney was retained by A, B, and C to handle

the real estate closing and C paid the attorney for preparing both the

powers of attorney for him and his ex-wife, it is the view of this

Committee that the attorney would be under an obligation to deliver the

original executed instrument to C, his client, with whom he had

established a professional relationship and had been in contact during the

representation. The Committee further directs your attention to LE Op.

1313 in which the Committee opined that the preparation of a power of

attorney for an individual wishing to be named the attorney in fact

constituted the firm's representation of the attorney in fact. Even though

the document was prepared for the benefit of the principal, the firm did

not have an attorney-client relationship with the principal who had

executed and notarized the document outside the auspices of the firm.

Therefore, under the facts as you have stated them in the inquiry, it

appears to the Committee that C was the attorney's client, and as such the

ex-wife's original power of attorney must be surrendered to C by the

attorney. Since there is apparently a dispute as to the validity of the

signature of the power of attorney, however, the Committee is of the

opinion that the attorney's obligations include preservation of a copy of

the document in order to make it available should allegations be raised as

to the propriety of his conduct under DR:7-102(A)(6). In addition, the

attorney may wish to retain copies of the client's file and any materials

entrusted to him by the client, but it would be improper to charge the

client for any costs incurred for the duplication absent a prior agreement

to the contrary. (See LE Op. 1171)

Committee Opinion May 8, 1990