When Hurricane Katrina hit New Orleans in August 2005 and broke through the levee systems, the city and the surrounding areas were immediately flooded and damaged, in some cases beyond repair. Within two days, a full 20 percent of the metropolitan area was underwater, and Mayor Ray Nagin ordered a mandatory evacuation of the entire city. Seven years later in 2012, Hurricane Sandy ripped through the Caribbean and the East Coast of the United Sates, inflicting nearly $70 billion in damage and killing 233 people.
February 16, 2023 Feature
Lawyering in Times of Crises: Ethical Obligations During Natural Disasters and Other Catastrophes
Trisha M. Rich
In March 2020, hundreds of thousands of lawyers across the country were sent from their offices into their homes while the world grappled with the COVID-19 pandemic. Nearly overnight, law firms were forced to set up thousands of remote offices to accommodate local restrictions and ensure the safety of their lawyers and staff. Schools sent children home for distance learning, which often took place in the same spaces where their parents and guardians were trying to work. While doing all this, we faced the first truly global pandemic of many of our lifetimes, dealing with the fear of a new virus and how that impacted our family, friends, and communities.
In the most devastating assault on American soil since Pearl Harbor, the 9/11 attacks crippled the country for weeks. Thousands of lives were lost. Many businesses and industries were affected, including dozens of law firms with offices in the North and South Towers of the World Trade Center, all of which were destroyed.
When disaster affects you, your family, or your community, your law practice might—rightfully—be the furthest thing from your mind. But even in times of crises, our rules of professional conduct obligate us to meet our responsibilities to our clients and others. With a little advance planning, you can better prepare for the unexpected.
ABA Formal Opinion 482
An excellent starting point to help understand lawyers’ ethical obligations, even during times of disaster, is the Formal Opinion 482 of the American Bar Association (ABA) Committee on Ethics and Professional Responsibility. ABA Formal Opinion 482 (Sept. 19, 2018) gives us a road map of the most important ABA Model Rules of Professional Conduct (Model Rules) that we need to keep top of mind during catastrophes. As the opinion notes, “[l]awyers have an ethical obligation to implement reasonable measures to safeguard property and funds they hold for clients or third parties, prepare for business interruption, and keep clients informed about how to contact the lawyers (or their successor counsel).” Luckily, the Opinion lays out clear steps that lawyers can take before and during disasters to help meet their ethical obligations. ABA Formal Opinion 482 is worth reading in full, especially as part of a lawyer’s plan to prepare for an emergency, but I will include a number of important highlights here.
First, lawyers always have a duty of competence. As required in Model Rule 1.1, lawyers have an ethical obligation to provide competent representation to clients, which requires lawyers to possess the legal knowledge, skill, thoroughness, and preparation that is reasonably necessary for the representation. Comment [8] to Model Rule 1.1 dictates also that lawyers need to stay current on changes in the law, specifically including changes in technology. In today’s technological world, this may mean that you should have electronic copies of important files rather than relying solely on paper copies that could be destroyed in a fire or flood, for example. Storing documents and data electronically will allow lawyers to be able to access material if they are able to obtain a working computer or other device and an Internet connection.
Model Rule 1.3 requires that lawyers exercise reasonable diligence and promptness while representing clients. In terms of disaster preparedness, this means that lawyers will want to be aware of impending deadlines for courts and otherwise. For litigators, affected court systems and judges will typically issue general or standing orders that will be available on their websites or by calling the courthouse. Throughout the COVID-19 pandemic, hundreds of such orders were issued by courts and judges across the country; they were readily available on the courts’ websites and often emailed to the courts’ registered lawyers.
Model Rule 1.4 requires that lawyers effectively communicate with their clients. According to Model Rule 1.4, this requires (among other things) that lawyers promptly inform clients of any decision or circumstances that would require their informed consent, that lawyers reasonably consult with clients about how their objectives should be accomplished, that lawyers keep clients reasonably informed about the status of their matters, and that lawyers promptly comply with reasonable requests for information. As ABA Formal Opinion 482 indicates, an early action that lawyers can take to mitigate potential interruptions in communications is to include emergency contact information in their agreement or engagement letters.
ABA Formal Opinion 482 also points out that one of the most important early steps lawyers will need to accomplish in the wake of a disaster is figuring out how they will be able to effectively contact and communicate with their clients. The Opinion notes that the ability to do that might require lawyers either to keep or to be able to create reasonably quickly a list of current clients and their contact information, which should be stored in a manner that is reasonably accessible to the lawyer. When lawyers are initially able to reach their clients following an emergency event, they should be able to tell their clients whether they are able to continue the representation or if they are now unavailable and, as a result, need to withdraw from the representation.
Despite their obligation to communicate material issues as soon as possible to clients, lawyers must also be mindful of their obligations under Model Rule 1.6(c) to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidential information related to the client’s representation. As a result, lawyers would not, for example, be able to leave a substantive message with a client’s friend, family member, or business associate if the lawyer is unable to reach the client.
Model Rule 1.15 requires that when lawyers are holding the property of their clients or other parties, they protect it. We typically think of this property as trust moneys stored in interest on lawyer trust accounts (IOLTAs), but Model Rule 1.15’s obligations extend to all kinds of property. With respect to trust moneys, ABA Formal Opinion 482 cautions that lawyers may want to consider having another trusted signatory on trust accounts or designating a successor lawyer to wind up the lawyer’s practice in the event of death, disability, or other prolonged absence. When considering other types of properties lawyers might hold, such as original documents or, for example, precious pieces of art, lawyers should consider investing in fireproof and waterproof storage options. If, for some reason, the lawyer is unable to access funds or property following a disaster, the lawyer should promptly communicate that fact to the affected client.
The unauthorized practice of law is governed by Model Rule 5.5, which, in general, prohibits attorneys from practicing law in a jurisdiction where they are not licensed. Of course, there are a number of exceptions to Model Rule 5.5; especially in the wake of the COVID-19 pandemic, many jurisdictions have clarified (or loosened) their rules on multijurisdictional practice. Further, Model Rule 5.5 (as well as ABA Formal Opinions 482) should now be read in conjunction with ABA Formal Opinions 495 (Dec. 16, 2020) and 498 (Mar. 10, 2021), both of which were published during the COVID-19 pandemic. With all of these caveats, though, lawyers must still be mindful of running afoul of unauthorized practice of law regulations. To the extent lawyers are displaced to another jurisdiction due to an emergency situation, they should review both their home jurisdiction’s and their new jurisdiction’s guidance on the unauthorized practice of law and any applicable exceptions, including temporary exceptions that may apply after such a disaster.
The advertising and solicitation prohibitions found in Model Rules 7.1, 7.2, and 7.3 will have continued relevance to attorneys who want to provide legal services to disaster victims. Note that such prohibitions would be loosened for lawyers who are providing pro bono services to disaster victims because the lawyers are not providing such services for the purpose of financial gain.
Finally, Model Rule 1.16 permits or requires a lawyer’s withdrawal under certain circumstances. Where lawyers are unable to fulfill their ethical obligations to a client, regardless of whether or not this is brought on by an emergency situation, they are likely required to withdraw from the representation and will typically have an ethical duty to engage in the transition of the client’s file and property. Of course, for litigators, this will often require obtaining leave of court.
State Ethics Opinions
A few other ethics opinions exist on the subject as well, although they are more narrowly circumscribed than the ABA’s more comprehensive opinion. In 2004 the State Bar of California Standing Committee on Professional Responsibility and Conduct issued Formal Opinion Number 2004-166, which cautions lawyers to comply with advertising and solicitation rules while communicating remotely with prospective clients who have been affected by disaster. In 2005, following Hurricane Katrina, the Louisiana State Bar Association Rules of Professional Conduct Committee published Public Opinion 05-RPCC-005, which states that lawyers could provide short-term limited representations to the victims of a natural disaster if the lawyer was working in a nonprofit program or a court and the lawyer was competent to render the advice given.
In 2015 the New York City Bar Association Professional Ethics Committee published its Formal Opinion 2015-6, which specifically focuses on a lawyer’s ethical duties when client files are accidentally destroyed. The Opinion contains a detailed analysis that examines a lawyer’s duty to maintain client documents and files and under what circumstances lawyers must make disclosures to clients regarding lost or destroyed files. This Opinion is generally consistent with the guidance provided by the ABA in Formal Opinion 482.
Advance Planning
There is at least some advance planning that lawyers can do to better prepare for catastrophic conditions. The ABA Committee on Disaster Response and Preparedness maintains a website that includes a disaster planning tool to help prepare lawyers for such situations. This extraordinarily helpful resource is worth reviewing at length, and it includes a number of videos and other free materials for attorneys who are either facing disaster or planning ahead in case a disaster occurs. The Committee’s website also includes information about available insurance and rapid response actions.
Other state bars provide tool kits and associated resources as well. The Washington State Bar Association, for example, publishes its Law Firm Guide to Disaster Planning and Recovery, readily available on its website. The State Bar of Michigan also has helpful guidance on its website; the guidance is focused on the COVID-19 pandemic but contains principles that are broadly applicable to other types of emergency situations.
Insurance brokers may also be a good source of information on best practices and tips that lawyers can employ either before or during catastrophic events. Insurers can walk through certain plans or riders that could be helpful depending on where a lawyer’s practice is and what it entails, and insurers are often helpful sources of advice for risk-management practices.
Disasters do not have to be large-scale environmental disasters or terrorist attacks—they can manifest as heart attacks or strokes or car accidents. When a lawyer has his or her own disaster, the most effective practice tool to have in place is a good succession plan. Such a plan will include having a competent person who is able to step in and, at a minimum, contact clients, opposing counsel, and courts, identify impending deadlines, locate and transfer files, and transfer trust funds or other property that belongs to clients or other third parties.
Conclusion
Legal careers tend to be long, and, at some point, something unexpected will happen to nearly all of us. While you have to, as they say on airplanes, put on your own oxygen mask first, you must still remember your ethical obligations to your clients and others. With an awareness of the issues that can arise and with a little advance planning, lawyers can mitigate the effects of a disaster before it strikes.