A lawyer who goes quiet for a week during a busy stretch is an annoyance. A lawyer who goes quiet for a month while a probate petition sits in Surrogate's Court, a creditor period is running, or an estate tax return is coming due is a problem you need to solve. This page explains what New York requires of your lawyer, how to escalate in stages, what to do in the estate situations we see most often, and the New York remedies that exist when escalation fails: substitution of counsel, Part 137 fee arbitration, a grievance with the Appellate Division, the Lawyers' Fund for Client Protection, and a malpractice claim under CPLR 214(6).
What New York Requires of Your Lawyer
The New York Rules of Professional Conduct are codified at 22 NYCRR Part 1200. Two rules matter here.
Rule 1.4 (Communication) requires a lawyer to promptly inform the client of any decision that requires the client's consent, to reasonably consult with the client about how the client's objectives will be pursued, to keep the client reasonably informed about the status of the matter, and to promptly comply with reasonable requests for information. A lawyer who ignores calls and emails for weeks without explanation is not meeting this standard.
Rule 1.16 (Declining or Terminating Representation) governs how a lawyer may leave a matter. If the matter is before a court, the lawyer generally needs the court's permission to withdraw. On withdrawal or discharge, the lawyer must take reasonable steps to avoid foreseeable prejudice to the client, including giving reasonable notice, allowing time to retain other counsel, delivering papers and property to which the client is entitled, and refunding any advance fee that has not been earned. Silence is not a permitted way to end a representation.
A violation of these rules exposes the lawyer to professional discipline. It does not by itself give you money damages; that requires a malpractice claim, discussed below.
Escalate in Stages
Give the lawyer a reasonable time to respond before you treat silence as abandonment. A few business days is reasonable for a routine question. Then escalate, and keep a dated log of every attempt.
- Written request with a deadline: Send an email and a letter asking for a status update and a response by a specific date. Reference your earlier unanswered messages. Certified mail with return receipt creates a record you can use later.
- The firm, not just the lawyer: If the lawyer practices in a firm, write to the managing partner or another partner. The firm has responsibility for client matters under Rule 5.1 and will usually respond even when the individual lawyer does not.
- Check the court record yourself: You do not need your lawyer's permission to find out what has been filed in your case. See the section below on checking a Surrogate's Court file.
- Retain new counsel: If deadlines are approaching and the lawyer is still silent, hire a new lawyer to substitute in. How that works in Surrogate's Court is explained below.
- File a grievance or a fee arbitration request if warranted: These are separate tracks from your underlying case and are covered in their own sections.
Estate and Probate Situations Where This Comes Up
You are the executor or administrator and your attorney is not responding
As a fiduciary, you personally carry the duties and deadlines in the estate. Your attorney's silence does not excuse a missed deadline. Points to keep in mind:
- Creditor period: Under SCPA 1802, creditors generally have seven months from the issuance of letters to present claims. You should not distribute before that period ends without advice.
- Estate tax returns: Federal and New York estate tax returns, where required, are due nine months after death. Extensions must be requested before that date.
- Accounting demands: Beneficiaries can petition to compel an accounting under SCPA 2205. If you cannot reach your attorney to respond to a citation, you need another lawyer quickly.
- Personal exposure: A fiduciary who misses deadlines can face surcharge or removal under SCPA 711 and 719, even if the lawyer was at fault. You may later have a claim against the lawyer, but the court will look to you first.
You are a beneficiary and the executor's lawyer will not answer you
The attorney for the executor or administrator represents the fiduciary, not the beneficiaries. That attorney owes you courtesy but does not owe you the Rule 1.4 duties owed to a client, and may be instructed by the fiduciary not to communicate with you directly. Your remedies run against the fiduciary, in Surrogate's Court:
- A proceeding under SCPA 2102 to compel the fiduciary to supply information or to pay a legacy or distributive share.
- A petition to compel an accounting under SCPA 2205, generally available once seven months have passed since letters issued.
- A petition to suspend, modify, or revoke letters under SCPA 711 where the fiduciary is not performing.
For more on these options, see our pages on resolving beneficiary and executor conflicts, compelling an estate accounting, removing an administrator or executor, and breach of fiduciary duty claims.
Your probate petition has stalled
Probate stalls for identifiable reasons: a distributee has not been served with citation or has not signed a waiver and consent, an heirship affidavit is missing, the original will or an attesting witness affidavit has not been filed, or the court has issued a deficiency notice that no one answered. If your lawyer is not telling you which of these applies, the court file will. Compare where your matter stands against a typical NYC probate timeline to judge how far behind it is.
How to check the status of a Surrogate's Court matter
- NYSCEF: Many Surrogate's Court proceedings in New York City and surrounding counties are electronically filed. If your matter is on NYSCEF, you can search by file number or decedent's name and see every document and any deficiency notice.
- The clerk's office: For paper matters, the record room of the county Surrogate's Court will tell you what has been filed and whether anything is outstanding. In New York City the Surrogate's Courts sit at 31 Chambers Street (New York County), 851 Grand Concourse (Bronx), 2 Johnson Street (Kings), 88-11 Sutphin Boulevard (Queens), and 18 Richmond Terrace (Richmond).
- Court-issued letters: If you are the fiduciary, ask the clerk whether your letters have issued and whether they carry any limitations.
Changing Lawyers in Surrogate's Court
You may discharge your lawyer at any time, with or without cause. The mechanics in a pending court proceeding are set by CPLR 321(b), which applies in Surrogate's Court through SCPA 102.
- Consent to change attorney: The outgoing lawyer, the incoming lawyer, and you sign a consent form. Your signature must be acknowledged before a notary. The form is filed with the court and served on the other parties.
- Court order: If the outgoing lawyer will not sign, or cannot be reached, your new lawyer moves for an order substituting counsel on notice to the old lawyer. Courts grant these motions routinely when the lawyer has gone silent.
- Fiduciary appointments: If you are the executor or administrator, the substitution is made in your capacity as fiduciary. The new lawyer will also want to review the bond, if any, and the status of letters.
Getting your file
Under New York law, a client is presumptively entitled to the full file, including the lawyer's work product, with narrow exceptions for internal firm administrative material. Rule 1.16(e) requires the lawyer to deliver the papers and property to which you are entitled when the representation ends. The lawyer may keep copies and may charge reasonable copying costs.
One New York point the generic advice gets wrong: a lawyer who is owed fees may assert a common-law retaining lien on the file. The lien is lost if the lawyer withdrew without good cause or was discharged for cause, and even where it exists a court can order the file turned over if you post security for the fee or show you cannot afford to. A lawyer who abandoned the matter is in a weak position to hold the file hostage. The lawyer may also have a charging lien under Judiciary Law section 475 against any recovery in the proceeding; that lien attaches to the proceeds, not to the file, and does not stop the substitution.
Fee Disputes: Part 137 and SCPA 2110
New York has a statewide Attorney-Client Fee Dispute Resolution Program under 22 NYCRR Part 137. Its main features:
- Dollar range: The program covers disputes between $1,000 and $50,000. Disputes outside that range can be arbitrated only if both sides agree.
- Exclusions: Criminal matters, disputes that turn on substantial legal questions such as malpractice, and fees that are fixed by a court or statute are outside the program.
- Notice requirement: Before suing a client for fees in a covered matter, the lawyer must serve a Notice of Client's Right to Arbitrate. You then have 30 days to request arbitration. If you do, the lawyer must participate.
- Outcome: The award is binding unless either side demands a trial de novo within 30 days, unless both sides agreed in advance that the arbitration would be final.
Estate matters have a second route. Under SCPA 2110, the Surrogate's Court can fix and determine the compensation of an attorney for services rendered to the estate or to a fiduciary. The attorney, the fiduciary, or an interested party such as a beneficiary can bring the petition. Where a fee is to be paid from estate assets, the court has independent authority to review whether it is reasonable, regardless of what the retainer says.
A fee dispute does not block your right to change lawyers. Handle the two issues separately.
Filing a Grievance
Attorney discipline in New York is handled by the Attorney Grievance Committees of the Appellate Division, under the Rules for Attorney Disciplinary Matters at 22 NYCRR Part 1240. The New York State Bar Association is a voluntary membership organization and does not investigate or discipline lawyers. The correct committee depends on where the lawyer practices. Confirm the current address on the Appellate Division's website before mailing a complaint.
- First Department (Manhattan and the Bronx): Attorney Grievance Committee, 180 Maiden Lane, 17th Floor, New York, NY 10038.
- Second Department, 2nd, 11th and 13th Judicial Districts (Brooklyn, Queens, Staten Island): Grievance Committee, Renaissance Plaza, 335 Adams Street, Suite 2400, Brooklyn, NY 11201.
- Second Department, 9th Judicial District (Westchester, Rockland, Putnam, Orange, Dutchess): Grievance Committee, 399 Knollwood Road, Suite 200, White Plains, NY 10603.
- Second Department, 10th Judicial District (Nassau and Suffolk): Grievance Committee, 150 Motor Parkway, Suite 102, Hauppauge, NY 11788.
- Third and Fourth Departments: Committees in Albany and Rochester cover the rest of the state.
A complaint is a written statement, with copies of your supporting documents, describing what the lawyer did and did not do. The committee reviews it, may ask the lawyer for a written answer, and may dismiss it, issue a private admonition, or refer it for formal charges that can lead to public censure, suspension, or disbarment.
Know what a grievance does and does not do. It is a disciplinary process. It can result in the lawyer being sanctioned and, in some cases, ordered to return a file or an unearned fee. It does not award you damages, it does not move your probate case forward, and it does not substitute new counsel. File it alongside the other steps, not instead of them.
The Lawyers' Fund for Client Protection
If the problem is worse than silence, and the lawyer has taken or misapplied money or property entrusted to the lawyer, the Lawyers' Fund for Client Protection, created under Judiciary Law section 468-b, may reimburse the loss. The Fund covers losses caused by a New York lawyer's dishonest conduct, such as theft of escrow or estate funds. It does not cover negligence, missed deadlines, or fee disputes. Claims are filed with the Fund at 119 Washington Avenue, Albany, NY 12210, and are generally expected within two years of discovering the loss. Reimbursement is capped per claimant.
Legal Malpractice Claims
If the lawyer's failure to act caused you a measurable loss, you may have a malpractice claim. In New York you must show that the lawyer failed to exercise the care, skill, and diligence commonly possessed by a member of the legal profession, that the failure was a proximate cause of your loss, and that you sustained actual and ascertainable damages. In practice this means proving the case within the case: that but for the lawyer's error, you would have obtained a better result, such as a legacy that was lost, a surcharge that was imposed on you as fiduciary, or a claim that became time-barred.
The limitations period is three years under CPLR 214(6), measured from the date of the malpractice, not from when you discovered it. The continuous representation doctrine tolls the period while the lawyer continues to represent you on the same matter, but the toll ends when the relationship ends, which can be when the lawyer stops working on the case in a way that is clear to you. Do not wait for the underlying estate proceeding to finish before consulting a malpractice attorney.
How We Can Help
The Law Offices of Albert Goodwin handles estate, probate, and trust matters in Surrogate's Court. If your estate lawyer has stopped responding, we can review the court file, identify any pending deadlines or deficiency notices, substitute in as counsel, and address file turnover and fee issues with the prior attorney. We also represent beneficiaries who cannot get information from a fiduciary. We have offices in Manhattan, Brooklyn, and Queens. Call us at 212-233-1233 or email [email protected].
Related Pages
About the Author
Albert Goodwin is an attorney admitted to practice in New York. His practice concentrates on estate administration, probate, and estate litigation in the Surrogate's Courts of New York City and Long Island. This page discusses New York law and procedure only and is not legal advice for your situation. Statutes, court rules, and committee addresses change; confirm current details before relying on them.
