September 19, 2018

ABA issues new guidance on what a lawyer should do before, after a disaster happens

CHICAGO, Sept. 19, 2018 —The American Bar Association Standing Committee on Ethics and Professional Responsibility released today Formal Opinion 482 that underscores the importance of ABA model rules for lawyers affected by disasters and provides specific guidance on their ethical responsibilities in the aftermath of hurricanes, floods, tornadoes and fires.

The formal opinion notes that recent large-scale disasters, such as Hurricane Florence in the Carolinas, highlight the need for lawyers to understand that extreme weather events and other calamities have the potential to destroy property or cause the long-term loss of power. Lawyers, in turn, 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 them or their successor counsel.

Specifically, the opinion underscores the importance for lawyers to know these ABA Model Rules of Professional Conduct:

  • Model Rule 1.4 (communication), which requires them to take reasonable steps to communicate with clients after a disaster.

  • Model Rule 1.1 (competence), which requires them to develop sufficient competence in technology to meet their obligations under the rules after a disaster.

  • Model Rule 1.15 (safekeeping property), which requires them to protect trust accounts, documents and property the lawyer is holding for clients or third parties.

  • Model Rule 5.5 (multijurisdictional practice). which limits practice by lawyers displaced by a disaster.

  • Model Rules 7.1 through 7.3, which limit lawyers’ advertising directed to and solicitation of disaster victims.

“Lawyers must be prepared to deal with disasters,” the ABA opinion said. “Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.”

The formal opinion is the latest of several ABA initiatives in recent years that focus on disaster relief and legal issues.

The ABA Standing Committee on Disaster Response and Preparedness works to educate lawyers, bar associations and the justice system on how to prepare for and respond to disasters and provides helpful information on its website. Through the Disaster Legal Services Program, the ABA Young Lawyers Division and the Federal Emergency Management Agency provide immediate temporary legal assistance to eligible disaster survivors at no charge. Also, the 2018 10th Annual National Celebration of Pro Bono next month focuses on helping disaster survivors with their countless legal issues — including insurance disputes, FEMA appeals, landlord tenant disputes, consumer fraud, health and education issues.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Formal Opinion 482 and other ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

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