Lawyers’ Ethical Obligation to Plan for Disasters (and Some Resources to Help You Do It)

Whether it is hurricanes along the Atlantic Coast, flooding along the Mississippi, tornadoes in the Midwest, or fires on the West Coast, natural disasters can have a devastating impact on the operations of a law firm. Attorneys, who are masters of risk management, often neglect to reduce their own risks when it comes to a catastrophic event impacting their law offices. Attorneys are under a duty to their clients, as well as under their jurisdiction’s rules of professional conduct, to be prepared for such disasters so that confidential files are protected and client needs are met.

As with most things lawyers do, planning is essential. Any size law firm needs to have a clearly defined law firm disaster preparation and recovery plan in place in order to avoid loss (or possible disclosure) of client files and to resume work as quickly as possible.

Ethical Obligations of Attorneys to Create and Maintain a Disaster Recovery Plan

A comprehensive law firm disaster plan not only should address the operational needs of the firm, but it also must first and foremost ensure that the firm meets its ethical obligations to its clients. Attorneys should consult their states’ rules of professional conduct prior to establishing a plan. The American Bar Association (ABA) offers guidance with Formal Opinion 482 (Sept. 19, 2018). While the ABA Model Rules of Professional Conduct (Model Rules) may not have been adopted in all jurisdictions, the message is simple: The Model Rules apply to lawyers affected by disasters.

In the preamble to Formal Opinion 482, the Opinion states:

Model Rule 1.4 (communication) requires lawyers to take reasonable steps to communicate with clients after a disaster. Model Rule 1.1 (competence) requires lawyers to develop sufficient competence in technology to meet their obligations under the Rules after a disaster. Model Rule 1.15 (safekeeping property) requires lawyers to protect trust accounts, documents and property the lawyer is holding for clients or third parties. Model Rule 5.5 (multijurisdictional practice) limits practice by lawyers displaced by a disaster. Model Rules 7.1 through 7.3 limit lawyers’ advertising directed to and solicitation of disaster victims. By proper advance preparation and planning and taking advantage of available technology during recovery efforts, lawyers can reduce their risk of violating the Rules of Professional Conduct after a disaster.

Under the Model Rules, the ABA advises, “Lawyers 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).”

The ABA provides resources and practical advice on (i) obtaining insurance, (ii) types and methods of information retention, and (iii) steps to take immediately after a disaster to assess damage and rebuild. Any law firm disaster plan, particularly for sole practitioners, must include a plan of succession so that clients and staff know where to turn if a lawyer dies, is incapacitated, or is displaced by a disaster.

Maintaining client files and property. With floods and fires, it is quite foreseeable that law firms will find that their client files have been destroyed. Lawyers who maintain only paper files or maintain electronic files solely on a local computer or server risk the total loss of those records in a disaster. A lawyer’s responsibility regarding these files depends on the nature of the stored documents and the status of the affected clients. Under the lawyer’s duty to communicate, a lawyer must notify current clients of the loss of documents with intrinsic value (e.g., original executed wills and trusts, deeds, and negotiable instruments). Lawyers also must notify former clients of the loss of these documents and other client property with intrinsic value. A lawyer’s obligation to former clients is based on the lawyer’s obligation to safeguard client property under Model Rule 1.15.

While attorneys have no obligation to notify either current or former clients about lost documents that have no intrinsic value, that serve no useful purpose to the client or former client, or for which there are electronic copies, they must respond honestly if a current or former client inquires about those documents.

Most documents held in client files by attorneys are necessary for current representation or would serve some useful purpose to the client. For current clients, lawyers may first attempt to reconstruct files by obtaining documents from other sources. If the lawyer cannot reconstruct the file, the lawyer must promptly notify current clients of the loss. A lawyer is not required either to reconstruct the documents or to notify former clients of the loss of documents that have no intrinsic value unless the lawyer has agreed to do so despite the termination of the lawyer-client relationship.

Maintaining financial records. Model Rule 1.15(a) also requires lawyers to keep complete records accounting for funds and property of clients and third parties held by the lawyer and to preserve those records for five years after the end of representation. If a firm’s trust account records are lost or destroyed in a disaster, the attorneys must attempt to reconstruct those records from other available sources to fulfill this obligation. To prevent the loss of files and other important records, including client files and trust account records, lawyers should maintain an electronic copy of important documents in an off-site location that is updated regularly or in a secure “cloud” location.

Continued representation and communication with clients. Model Rule 1.4 requires lawyers to communicate with clients and makes no exception for disasters. Immediately after the dust has settled, attorneys must determine all available methods to communicate with clients. To be able to reach clients following a disaster, lawyers should maintain, or be able to create on short notice, electronic or paper lists of current clients and their contact information, including phone numbers and addresses. Contact information should be stored in a manner that is easily accessible, either on a laptop or a mobile phone. In the event that telephone or cellular service is unavailable, the attorney may have to resort to U.S. mail. In the event the postal service is inoperable, it may require personal visits to the client.

During the initial communications, attorneys need to advise their clients whether the attorneys can continue to handle the clients’ matters, or, alternatively, whether the attorneys are unavailable because of the disaster’s effects and may need to withdraw. In a situation in which a disaster is predicted (e.g., a hurricane), attorneys should consider providing clients with methods by which the lawyer may be reached in the event that emergency communication is necessary. In identifying how to communicate with clients under these circumstances, lawyers must consider their obligation under Model Rule 1.1 to keep abreast of technology relevant to law practice and Model Rule 1.6(c)’s requirement “to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.”

Key Features of an Effective Law Firm Disaster Plan

After assessing the ethical consideration of its jurisdiction, the law firm is ready to begin creating its disaster plan. In so doing, the disaster plan should incorporate most (if not all) of the following items:

Identify emergency contacts. Emergency contacts include the “point” person responsible for engaging the disaster plan into action as well as key personnel who can respond to rapidly changing conditions at the law firm. Emergency contacts should have reliable cellular service and backup power sources for their phones.

Identify the disaster response team and their roles. In addition to the emergency contacts (who will undoubtedly be on the team), identify other disaster response team members and their roles and responsibilities.

Technology, data, and client files. The disaster plan must include how the law firm’s computer system can be rebooted (even without standard electrical power) and accessed. Backup devices should be tested and retested to make sure that electronic files are maintained. The disaster plan must identify the person responsible for the backup storage and its maintenance. Obviously, backups must be maintained in a safe, fireproof location off-site. In the event that files are stored on cloud-based platforms, the disaster plan must include the account name and password for that account (while maintaining client confidentiality).

Alternative workspace. The disaster plan should also identify some physical location for the law firm to gather in the event the office is destroyed or flooded. That space should be equipped with a landline telephone, workspaces (such as folding tables), and electrical outlets and drop cords. Alternative workplaces may be homes, garages, or warehouses but should be comfortable enough for the attorneys and staff to perform their work for the weeks or months necessary to rebuild the original office or to find a new permanent location. The alternative workspace should be equipped with food, water, and a restroom. A printer/copier and a supply of copy paper along with letterhead should be stored at the facility as well.

Inventory of client files, firm software, and critical services and vendors. The disaster plan should also include an inventory that contains the following:

1. All client files, whether active or inactive, with a general description of the contents but a definitive list of any documents with intrinsic value (e.g., original wills, trusts, deeds, and negotiable instruments).
2. All firm software, including account numbers and passwords. In the event the law firm’s computers are destroyed, the law firm must be prepared to reload the software on new or alternative computers.
3. Critical services and vendors should be listed along with contact information and account numbers. These services and vendors include cloud-based services, transcription services, and Internet/cellular service providers.

The Morning After

Once any imminent danger to life or limb has subsided, the emergency contact point person should contact the disaster response team members to engage the disaster plan. Attorneys and staff should only emerge from places of safety if they can do so without substantial risk to themselves and others. The team then can assess whether the offices of the law firm have been damaged and, if so, to what extent. If the offices are damaged and cannot be used, the team can then activate the alternative location and begin restoring services and operations of the firm.

In closing, a disaster plan can save attorneys and their clients preventable injury and heartache when disaster strikes. While prior planning does not ensure that a firm will escape a calamity unharmed, it will allow the firm to regain its footing faster so that the interruption to its clients is minimized.

Resources

The ABA website contains ample material on disaster planning and preparedness. The ABA Law Practice Division maintains a page entitled Disaster Resources containing tips for planning for a disaster and tips for disaster recovery. The ABA Legal Technology Resource Center (LTRC) has articles and resources concerning disaster preparedness on their blog Law Technology Today. Guides and articles there include:

• Guide to Conducting a Business Continuity Exercise
• Planning for Reconstituting a Law Office after a Disaster
• After Disaster Strikes: A Checklist
• Small Office Disaster or COOP Plan
• Preparing, Reacting and Resuming Life
• Firms and Courts Take Up Challenge of Planning for the Worst
• Pandemics: Preparing Businesses for a Global Outbreak (Donald W. Benson & Alexander D. Paterra, South Carolina Lawyer, July 2009)