Can the prior attorney refuse to turn over the estate file, and what happens if they do? – North Carolina

Short Answer

In North Carolina, a prior attorney generally must protect the client’s interests when representation ends, which usually includes promptly providing the client (or the client’s authorized new counsel) the parts of the estate file needed to continue the matter. A lawyer may keep limited internal materials in some situations and may address unpaid fees through lawful channels, but refusing to release what the client is entitled to can trigger State Bar discipline and can also create practical problems in the estate administration. If the prior attorney will not cooperate, the next steps often include a written demand, confirming who the “client” is (typically the personal representative), and escalating to the North Carolina State Bar if needed.

Understanding the Problem

Under North Carolina probate practice, the key question is whether a prior attorney who previously handled an estate matter can refuse to provide the estate file when a new law firm takes over. The decision point is usually: who has authority to request the file (for example, the personal representative acting for the estate), and what parts of the file must be provided so the estate administration can continue without avoidable delay.

Apply the Law

North Carolina’s professional conduct rules require a lawyer, when representation ends, to take reasonable steps to protect the client’s interests. In an estate administration, the “client” is commonly the duly appointed personal representative (executor/administrator) acting in that role, not the heirs as individuals. That matters because the prior attorney should release the file to the person with legal authority for the estate (or to new counsel with that person’s written authorization), while still protecting confidential information and privilege issues.

Key Requirements

Authority to receive the file: The request should come from the client (typically the personal representative) or from new counsel with clear written authorization.
Reasonable steps to avoid harm on exit: When the attorney-client relationship ends, the prior attorney should provide what is needed to keep the estate matter moving (for example, pleadings, correspondence, inventories/accountings in progress, and key supporting documents).
Confidentiality and privilege still apply: The prior attorney must protect confidential information, but in estate work that usually means sharing information with the personal representative for administration purposes, not withholding it from the personal representative.

What the Statutes Say

N.C. Gen. Stat. § 42-14.4 (Potentially confidential materials; client files) – Defines client files and other materials as potentially confidential in a context where the State Bar may take possession to protect them, reflecting North Carolina’s policy that client files must be safeguarded and not improperly withheld or discarded.

Analysis

Apply the Rule to the Facts: Here, a new law firm believes prior counsel represented the estate until recently and wants to send a letter of representation and request the estate file. Under North Carolina practice, the cleanest path is for the personal representative to authorize the transfer (or for new counsel to include written authorization from the personal representative). If the request is properly authorized, the prior attorney usually should not “hold the file hostage” because the estate administration needs continuity (deadlines, creditor issues, accountings, and filings with the Clerk of Superior Court).

Process & Timing

Who files: The personal representative (through new counsel). Where: Directly to prior counsel first; if escalation is needed, the North Carolina State Bar is the usual forum for a professional-conduct complaint. What: A letter of representation plus a written authorization signed by the personal representative requesting release of the estate file and identifying where to send it. When: As soon as substitution occurs, especially if there are upcoming estate administration deadlines or hearings.
Confirm scope and format: Ask for the complete client file needed to continue the estate administration (paper and electronic materials), and propose a practical delivery method (secure download link, encrypted drive, or hard copy). If the prior attorney claims a reason to withhold something, request a written itemized explanation of what is being withheld and why.
Escalate if noncooperation continues: If the prior attorney still refuses after a clear written demand and proof of authority, the personal representative can consider a grievance to the North Carolina State Bar and, depending on the posture of the estate proceeding, may also consider asking the Clerk of Superior Court to address case-management issues caused by the refusal (for example, continuances or orders related to pending filings).

Exceptions & Pitfalls

Unclear “who is the client”: If the request comes from an heir rather than the personal representative, prior counsel may properly decline until authority is clarified. A written authorization from the personal representative usually resolves this.
Confidentiality/privilege confusion: Prior counsel may cite confidentiality as a reason to withhold information from family members. That concern is real, but it typically does not justify withholding estate-administration information from the personal representative acting for the estate.
Unpaid fees: Fee disputes can complicate transitions. Even then, refusing to provide materials needed to protect the client’s interests can create professional-conduct exposure. A practical approach is to transfer what is necessary to avoid harm while addressing any fee dispute separately.
Missing key “working” documents: A common problem is receiving only court-stamped pleadings but not the supporting documents (asset information, creditor correspondence, draft inventories/accountings). The request should specifically ask for both filed and unfiled materials that relate to the estate administration.

Conclusion

In North Carolina, a prior attorney generally cannot simply refuse to turn over an estate file when representation ends and a properly authorized request is made by the personal representative (or new counsel for the personal representative). The prior attorney must take reasonable steps to protect the client’s interests, which usually includes promptly providing the materials needed to continue the estate administration, while still protecting confidentiality. The next step is to send a written demand with the personal representative’s signed authorization and a clear delivery deadline.

Talk to a Probate Attorney

If a prior attorney is not cooperating with an estate file transfer, our firm has experienced attorneys who can help clarify authority, protect deadlines, and take the right steps to obtain the file. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.