February 2006
Volume 2, Number 2
Table of Contents

Planning For Disaster –Ethically

By: William I. Weston, J.D, Ph.D.

Weather related events over the past two years have raised awareness, for everyone, of the need for preparation and anticipation in continuing the law practice. Nowhere is that issue more relevant than for the solo and small firm practitioner. Nor is the need for preparation and anticipation limited to weather related events. One can add issues like terrorism and fire to weather related events that can be a devastating impact to a law practice.

Often the reaction to this issue is one of denial coupled with a statement that there is no time to take the steps to prepare. For a lawyer, however, the issues transcend the mere protection of computers and property like the florist or the deli-owner. There is a strong ethical component to this issue which, if ignored, can challenge the lawyer’s license to practice. The obligations to the client and to the court are not solved by a blue plastic tarp on the roof of the lawyer’s office building.

The investment of a relatively small amount of time during a period of calm can make the difference between continuity of practice and a disaster that destroys the lawyer’s practice and perhaps the lawyer’s ability to practice in the future. Even in catastrophic situations in which the entire community is in distress, client needs and responsiveness to the court will likely be slowed or stopped for a relative short period of time but will return quickly. In the case of the recent severe hurricane in south Florida – Wilma – where the Broward County Courthouse suffered the loss of more than 170 windows in addition to other damage, Court business was reestablished in satelite in a relatively short period of time. If the catastrophic event is unique to the lawyer – such as fire or flood – the tolerance of delay by clients and by the Court will be limited.

This issue is particularly challenging for the solo practitioner because the solo, as is well known, is an individual faced with multiple demands. These demands run the gamut from rainmaking to lawyering to human resources to financial coordinator for the practice. To add an additional requirement of disaster planning with the inherent ethical issues can seem overwhelming.

Yet, the investment that the lawyer has made in the practice of law requires a further investment in preparation and anticipation of a disaster. In addition, the process of preparation and anticipation require attention to the issues of client confidentiality, diligence as well as the economics involved in the costs of legal services. Even conflicts of interest must be considered in the process of disaster planning.

There are three stages to the process of disaster planning. The first is evaluation. During this phase, the lawyer along with staff members would careful evaluate the current state of the practice itself. By the way, this is not a bad idea in general for law practices. Evaluation would be made of the physical plant of the office, computer systems, records, filing systems, backup systems for computerized data, staffing including a review of staffing locations and family, and, finally client base. The information provided gives the lawyer a formal and organized data-set of the practice – a veritable snapshot from which the next stage of the process can take place – the disaster plan.

The disaster plan has several parts – the physical plant, technology, staffing and client needs. The physical plant requires an evaluation of how the office will be reestablished as quickly as possible after the disaster takes place. The physical plant plan includes physical location, accessibility, process of moving, ergonomics of the new office, maintaining and protecting client confidentiality. This phase also includes the process of storing and then moving client records while at the same time protecting them to insure the continuity of client matters. The ergonomics part of the plan takes into consideration the establishing of a function temporary office that operates effectively and efficiently The technology plan deals with reestablishing computer records and systems including time and billing as soon as practicable. This part of the plan is predicated on a careful and preexisting system of data backup and protection and the ability to make use of alternative computer equipment in the event the major equipment is destroyed in the disaster. Finally, the staff aspect of the plan considers the needs of the staff before, during and after the disaster. Staff members, like the lawyer, have families and homes that need to be protected in the case of a community disaster. The relocation of the office has to take into consideration such issues as the ability of staff to get to the office, the schedule of staffing while considering the needs of staff members to care for their families and of course the economic issues of staff salaries and client fees. Care should be made by the lawyer to consider the implications of all of this to the fees charged and collected.

The last phase is the recovery plan and that too must be considered in advance. When the disaster has abated , the lawyer can return either to the prior office or establish a new permanent office. Many of the same issues raised above must be considered carefully in this phase. Clients will expect a functioning office prepared to diligently represent the client’s needs. The Court will expect the lawyer to fulfill prior obligations. The staff will expect a reasonable return to whatever is normal for that firm. The operative concepts in the recovery phase are speed, efficiency, client-centered thinking and organization.

For all three phases it is extremely important that staff members know their roles and duties before, during and after a disaster. Things like a phone tree and written instructions are essential. Staff should know how to prepare the office in anticipation of the disaster (often there is warning of a flood or weather issue). Even if there is not a great deal of time, staff need to understand what they must do to save the assets of the firm and especially client data.

If all of this appears overwhelming, it is important to secure the help of people who understand the processes involved and how to develop effective disaster planning. The more that the lawyer protects data, provides for back up, provides redundancy in computers and anticipates the needs as briefly described above, the more the firm, the staff and ultimately the client and the court will be able to achieve continuity with ethical protection of the legal matters in the practice. These events will occur as everyone witnessed during the past two years. Unlike the deli owner or the florist, the lawyer must respond not only to the disaster but to ethical obligations which do not abate in a disaster. The operative words here are preparation and anticipation.

William I. Weston, J.D, Ph.D. is Associate Dean at Concord Law School.

 

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