Putting Clients First: Ethical Considerations in Disaster Planning and Recovery

By Mark L. Tuft

A primary objective of disaster preparedness is protecting the client’s interests. Thus, a logical starting point in adopting and implementing a disaster plan is to consider the applicable rules of professional conduct. This overview is based on the ABA Model Rules (2002). Most jurisdictions have adopted a variant of the Model Rules; check the rules of professional conduct in your own jurisdiction before adopting and implementing a disaster plan.

Maintaining competence. In all professional functions, a lawyer must provide competent representation to a client (Model Rule 1.1). Competent representation requires legal knowledge, skill, thoroughness, and reasonable preparation. In an emergency, where referral to or consultation with another lawyer is not practical, a lawyer may give advice in an area in which the lawyer does not have the skill ordinarily required under the rules. However, this advice must be limited to that reasonably necessary in the circumstances.

Diligent representation. A lawyer is required to act with reasonable diligence and promptness in representing a client (Model Rule 1.3). This means that a lawyer should carry through to conclusion all matters undertaken for a client. Diligence may require advance planning in conformity with applicable rules where there is a need for protective action.

Obtaining advance authority. Normally, the client has ultimate authority to determine the purposes to be served by the representation, and the lawyer must consult with the client with respect to the means by which the client objectives are to be pursued (Model Rule 1.2(a)). However, the rule contemplates that a client may authorize the lawyer at the outset of the representation to take specific action on the client’s behalf without further consultation. Absent a material change in circumstances, and subject to the lawyer’s duty of communication under Model Rule 1.4, a lawyer may rely on such advance authorization. The client may, however, revoke such authority at any time.

Adequate communication. A lawyer must be able to reasonably consult with a client, including keeping the client reasonably informed and promptly complying with reasonable requests for information (Model Rule 1.4). Normally, the lawyer must secure the client’s consent prior to taking action where the rules require that a particular decision be made by the client, unless prior discussions with the client have resolved what actions the client wants the lawyer to take. When an immediate decision must be made, the exigency of the situation may require that the lawyer act without prior consultation. In such cases, the lawyer must nonetheless act reasonably to inform the client of the actions the lawyer has taken on the client’s behalf. The guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests and the client’s overall requirements as to the character of representation.

Protecting client information. A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who participate in the representation or who are subject to the lawyer’s supervision (Model Rule 1.6(a)). A lawyer, therefore, must take reasonable precautions to prevent information relating to the representation of the client from coming into the hands of unintended recipients. Comment [17] cautions that special circumstances may warrant special precautions. Comment [18] is a reminder that the duty of confidentiality continues after the client-lawyer relationship has ended. See Model Rule 1.18 for the lawyer’s duties with respect to information provided by a prospective client.

Safekeeping property. A lawyer must safeguard funds and other property of clients and third persons that are in the lawyer’s possession and must segregate such property from the lawyer’s own property (Model Rule 1.15(a)). This means that a lawyer holds property of others with the care required of a professional fiduciary. Lawyers must hold funds for the benefit of clients or third parties in a separate account and properly identify and safeguard other property. Model Rule 1.15(a) also requires that complete records of funds and other property be kept by the lawyer in accordance with generally accepted accounting principles or in compliance with local recordkeeping rules and that such records be preserved for a period of five years after termination of the representation. Unless otherwise permitted by law or by agreement with the client, the lawyer must be able to promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, promptly render a full accounting regarding such property (Model Rule 1.15(d)). The duty to safeguard property applies not only to the lawyer’s current clients, but also applies to prospective clients, former clients, and third persons who have an interest in the property.

Terminating representation. A lawyer may be obligated to withdraw from the representation of a client if the representation will result in a violation of the applicable rules of professional conduct or other law (Model Rule 1.16(a)(1)). A lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client or if other good cause for withdrawal exists (Model Rule 1.16(b)(1) and (7)). A lawyer seeking to withdraw must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation (Model Rule 1.16(c)). In terminating a representation, a lawyer shall take steps to the extent reasonably practical 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 payment of fees or expenses that have not been earned or incurred (Model Rule 1.16(d)).

Responsibilities of partners, managers, and supervisory lawyers. A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in place measures giving reasonable assurance that all lawyers in the firm conform to the rules of professional conduct (Model Rule 5.1(a)). A “law firm” includes a law partnership, professional corporation, sole proprietorship, or other association authorized to practice law, and also includes lawyers employed in a legal services organization or legal department of a corporation or other organization (Model Rule 1.0(c)). A subordinate lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acts at the direction of another lawyer (Model Rule 5.2). The duty of supervision also extends to nonlawyer assistants (Model Rule 5.3).

Mark L. Tuft is a partner with Cooper, White & Cooper LLP, in San Francisco, where he specializes in representing attorneys and law firms on professional responsibility and liability matters. He is a vice chair of the California State Bar Committee for the Revision of the Rules of Professional Conduct and is an adjunct professor at the University of San Francisco School of Law, where he teaches legal ethics. His is also a co-author of the California Practice Guide on Professional Responsibility. He can be reached at .

Copyright 2006

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