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March 07, 2019 Top Story

ABA Provides Ethics Advice for Disaster Preparedness

Without planning, lawyers may violate ethical rules when a disaster strikes

By Geoff A. Gannaway

A new resource helps lawyers satisfy their ethical obligation to prepare for the impacts of natural disasters on their law practice.

ABA Standing Committee clarifies attorney actions both before and after events like hurricanes, floods, and wildfire

ABA Standing Committee clarifies attorney actions both before and after events like hurricanes, floods, and wildfire

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The ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion 482 clarifies the application of the ABA Model Rules of Professional Conduct to an attorney’s actions both before and after events like hurricanes, floods, and wildfires. ABA Section of Litigation leaders say that the opinion for the first time provides attorneys a checklist of practical steps they can take to avoid running afoul of their professional responsibilities when catastrophe strikes.

In Case of Emergency: Rely on the Checklist

The opinion allows practitioners to view their approach to potential disasters through the lens of ethical obligations. Lawyers affected by a disaster must abide by the same ethical rules that applied before the event. “After something happens, you may be putting your personal life together, but the rules say you also need to keep your professional life and your client responsibilities moving forward,” says Emily J. Kirk, Edwardsville, IL, cochair of the Section of Litigation’s Solo & Small Firm Committee.

While the ABA published a guide to disaster preparedness in 2011, it did not directly link planning to compliance with the Model Rules. “I’m not aware of any professional responsibility guidance for disasters prior to this opinion being issued,” explains John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. “The primary value of the opinion is as a checklist for lawyers. If attorneys pay attention to the checklist, it will put them in a position to know they can serve their clients with a high level of professionalism,” adds Barkett.

Batten Down the Hatches: Gather Tools in Advance

Even after a disaster, Model Rule 1.4 requires communication with clients. To satisfy responsibilities during and after a disaster, an attorney may need to reach clients, access client files, and manage court deadlines. With phone lines down, office paper files inaccessible, and roads closed, these routine tasks may prove difficult. To plan for such challenges, attorneys should have readily accessible contact information for clients and backup modes of communication.

The opinion recommends that attorneys consider storing files electronically that can be accessed remotely through the Internet but adopt reasonable security measures to ensure that client information remains confidential. Model Rule 1.1 requires an attorney to keep abreast of the benefits and risks associated with relevant technology. “The common theme running through all of the issues addressed in the opinion is that lawyers need to protect themselves and their clients by investing in technology. Technology lets you fulfill your obligations if something happens to your physical assets. My firm has remote access to a server located in a different city, so we can still help clients even if something happens to our office,” says Kirk.

Refuge in the Storm: Be Prepared to Practice Outside Your Jurisdiction

Lawyers may need to relocate their practice after being displaced by a disaster. Model Rule 5.5(c) allows temporary multijurisdictional practice but does not necessarily apply in all jurisdictions. “For many lawyers, it is so easy to work remotely that they might not think twice about working in a different state, but they need to make sure the rules allow it,” warns Kirk. In addition, the ABA Model Court Rule on Provision of Legal Services Following Determination of Major Disaster requires an attorney to register with the supreme court in the state in which he or she is temporarily allowed to practice, and requires the lawyer to cease practice within 60 days after that court determines the conditions of the disaster have ended.

Similar rules govern attorneys who want to provide pro bono legal services for disaster victims in the state where the disaster struck. “If you want to jump in and help, check the applicable ethical rules to make sure what you are doing is okay,” advises Kirk. For example, according to the ABA Model Court Rule on Provision of Legal Services Following Determination of Major Disaster, before an attorney can provide legal assistance the supreme court of the affected area must declare a major disaster and issue an order that permits legal work. In addition, attorneys must register with the local courts, and they will be subject to discipline in the affected jurisdiction.

Post-Disaster Recovery: Time to Rebuild

When all else fails, the opinion outlines responsibilities in the event of a loss of documents or data. If original files are destroyed and no backup exists, an attorney must notify clients regarding the loss of key documents such as wills, trusts, and deeds. The attorney must also undertake reasonable efforts to reconstruct such documents. When documents necessary for legal representation cannot be reconstructed, the lawyer must promptly notify his or her client.

While not a substitute for advance preparation, the opinion’s guidance can help attorneys get their practice back on track under difficult circumstances. “If you are in a place where disaster hits and you have not done all of the things this opinion says you should do in advance, you may be under a lot of stress. But in a post-disaster environment, just reading through the opinion lets you know someone else has thought about the issues and you can check off the things that you need to do,” says Barkett.


Geoff A. Gannaway is a contributing editor for Litigation News.

Hashtags: #EthicsOpinion, #ModelRules, #DisasterPreparedness

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