May 01, 2015

TAPAs: Tips for Disaster Preparedness

Jeffrey Allen and Ashley Hallene

You may have heard the adage “it wasn’t raining when Noah built the ark.” Without going in to religion, the message is pretty clear: the time to plan for a disaster is well before the disaster occurs. Disasters come in many forms: natural disasters, storms, floods, fires, earthquakes, terror attacks, and power outages. The personal toll can be devastating, but the business implications are far reaching as well.

On May 22, 2011, the law office of attorneys Brad Barton, Keith Pennick, and Wes Barnum was torn to shreds when an EF-5 Tornado decimated the city of Joplin, Missouri, leaving a six-mile path of destruction and killing 126 people. Among the wreckage, a filing cabinet with a missing drawer front stood where case files, drenched from the tornado and subsequent storms, were left exposed to anyone who passed by. In the aftermath, attorneys affected by the disaster were concerned with their personal loss, helping loved ones to get situated and recover what they could. But in time law practice concerns emerged, raising questions that attorneys should consider before a disaster strikes:

  1. Where and when will you pick up your law practice?
  2. Do courts and/or your clients know how to reach you if you are not in the office?
  3. Does your insurance cover the loss?
  4. Were any crucial documents lost? Is privacy a concern if documents were exposed for a period of time?

If you do not have a disaster plan in place, you need one, regardless of the size of your practice.

1. Develop a Disaster Recovery Plan for Your Personnel

For starters, identify a disaster recovery manager. If you are a solo running a lean operation then it will probably be you. If possible, you need to identify a backup for the disaster recovery manager. Your disaster recovery plan should be committed to writing, and should be kept somewhere your managers can access off-site in case of emergency. The plan needs to include contact information for the managers and senior partners, including home phone numbers and cell phone numbers. You may not be able to count on firm email accounts if your server is out of commission. If you rent space out of a building, you may be locked out pending building inspection. Your recovery plan needs to include the contact information building management to keep abreast of the latest developments. Designate a method of disseminating information, whether it will be by telephone call, a central call-in number your firm can use, or maybe personal emails (if so, you need to keep an updated directory that your disaster recovery manager can access off-site). Your disaster recovery manager needs to identify a point of operations. (It may be an off-site location, or perhaps individuals will work from home until building access is possible.)

2. It Pays to Be a Mobile Lawyer

We have written several pieces on being a mobile lawyer, but you will notice that the tools you use as a mobile lawyer also make disaster recovery easier. When you are a mobile lawyer, what are some of the items you use to practice anywhere? A cloud storage system? Remote backup of your crucial documents? Cloud-based phone system such as Ring Central or Google voice? These same services can play a crucial role in your disaster recovery, substantially shortening your down time. Look at how these mobile tools can integrate into your disaster recovery plan.

3. Keep the Money Coming In and Going Out

Your plan needs to include provisions for accessing and continuing your payroll to employees as well as your billing of clients. Whether or not you send bills out to clients affected by the disaster is a decision you can make at the time, but certainly clients not affected by the tragedy should still be billed with continuity, and your staff also needs payroll consistency in this time of need. Ethically you obligated to keep duplicate billing records even if disaster strikes. For example, In a North Dakota case, In the Matter of Ward, 701 N.W.2d 873 (N.D. 2005), a computer virus that destroyed a lawyer’s billing records did not excuse the lawyer’s failure to comply with his record-keeping duties. Here, the North Dakota Supreme Court held that the lawyer’s failure to maintain duplicate billing records, along with a failure to be able to account for a portion of the advance fees, had violated North Dakota’s Rule 1.15(f), which requires lawyers to keep records sufficient to demonstrate compliance with the rule for six years after the end of the representation.

4. You Need a Disaster Recovery Plan for Your Data

We have discussed backup systems previously, but it is worth revisiting in this context. This will include a backup plan with geographic redundancy. This could be a cloud-backup system, or a personal backup system. Note well, though, as was the case in Joplin, it is possible that the disaster affecting your office could also affect your home. You should have more geographic diversity than that if possible. If you find yourself in the wake of a disaster without a data recovery plan, you may want to start by contacting a data recovery expert in your area.

5. Inform your Clients, Adversaries, and the Courts of the Disaster and Your Current Position in the Road to Recovery

As Model Rule 1.4 points out, “[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.” Not all clients or courts will be sympathetic, but you likely already have an idea of which ones will not. You may be able to forward calls to a remote receptionist area to receive any incoming calls for you. This will allow you to keep a line of communication open for your business while you organize and regroup.

At the end of the day, remember that those who fail to plan, plan to fail. Don’t let that be your story.

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Jeffrey Allen and Ashley Hallene

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Jeffrey Allen is the principal in the Graves & Allen law firm in Oakland, California. A frequent speaker on technology topics, he is editor-in-chief of GPSolo magazine and GPSolo Technology eReport. Recently, he coauthored (with Ashley Hallene) Technology Solutions for Today's Lawyer and iPad for Lawyers: The Tools You Need at Your Fingertips. In addition to being licensed as an attorney in California, he has been admitted as a Solicitor of the Supreme Court of England and Wales. He holds faculty positions at California State University of the East Bay and the University of Phoenix. He may be reached at jallenlawtek@aol.com. You may also get updated technology information from his blog: jallenlawtekblog.com. Ashley Hallene is a petroleum landman at Alta Mesa Holdings, LP, and practices Oil and Gas law, Title Examination, Due Diligence, Acquisitions and Oil and Gas Leasing in Houston, Texas. She maintains a diverse solo practice on the side. Ashley is the coauthor of the technology overview Making Technology Work for You (A Guide for Solo and Small Firm Attorneys) along with attorney Jeffrey Allen. She has published articles on legal technology in GPSolo Magazine, GPSolo eReport, and the TechnoLawyer Newsletter.  Ashley is an active member of the American Bar Association’s General Practice Solo & Small Firm Division, ABA’s Young Lawyer Division, the Texas Young Lawyer’s Association, the Houston Young Lawyer’s Association, and the Houston Association of Petroleum Landmen. She frequently speaks in technology CLEs and is Deputy Editor-in-Chief of the Technology and Reviews Department of the GPSolo eReport.