In the aftermath of Hurricane Florence, which last month dumped up to 35 inches of rain on parts of the Carolinas, Virginia and Maryland, caused 48 deaths, and up to $22 billion in property damage, comes a timely new ABA opinion about our ethical obligations related to disasters.
The hurricane did not spare lawyers and law firms. Ahead of the 1,000-year storm, Law360.com reported that firms in Florence’s projected path shuttered offices, activated contingency plans, and were glad if their firm systems and client data were stored in the cloud. (Subscribers can access the story here.) (And doing the profession proud, volunteer lawyers manned hot-lines to help storm victims get needed legal services.)
But what are our actual disaster-related ethics duties?
Communication, withdrawal, files and more
Disasters happen; that’s a fact of life. The entire 13-page Opinion 482 (Sept. 19. 2018) repays reading. Some highlights and nitty-gritty advice from the opinion:
- Model Rule 1.4 requires us to communicate with our clients. To be able to reach clients following a disaster, the opinion says, you should maintain or be able to quickly recreate, lists of current clients and their contact information.
- You “must evaluate in advance storing files electronically” so that you can have access to those files via Internet or smart device, if such are available after a disaster.
- If you can continue to provide services in the disaster area, you continue to have the same ethics duties as before; but in an emergency, you may be able to provide advice outside your area of expertise, as allowed by comment  to Rule 1.1 (“Competence”). (We’ve previously written here about “emergency lawyering.”)
- If you’re a litigator, check with courts and bar associations to see if deadlines have been extended across the board.
- You “must take reasonable steps in the event of a disaster to ensure access to funds” you are holding in trust, the opinion advises. Of course, your obligations will vary depending on the circumstances. If you know of an impending disaster, you should determine if you should reasonably transfer client funds to an account that will be accessible; or even attempt to complete imminent transactions before the disaster hits, “if practicable.”
- You may need to withdraw after a disaster, under Rule 1.16 (“Withdrawal”) and Rule 1.3 (“Diligence”), if a client needs immediate legal services that you will be unable to timely provide.
- If client files are destroyed, your duty of communication will require you to notify current and former clients about the loss of client property with “intrinsic value.” But there is no duty, the opinion concludes, to notify either current or former clients about the loss of documents that have no intrinsic value, for which there are electronic copies, or that serve no current useful purpose.
- To prevent the loss of important records, “lawyers should maintain an electronic copy of important documents in an off-site location that is updated regularly.”
Disaster Prep 101:
The ABA has a committee devoted solely to the topic of disaster preparedness, and its website has helpful resources and tips on everything from getting insurance, to types and methods of information retention, and how you can assess damage and rebuild after a disaster strikes your practice. The committee’s 44-page Surviving a Disaster — A Lawyer’s Guide (Aug. 2011) is also helpful.
And remember, calamitous disasters aren’t confined to weather, war, and the like. A disastrous health event can leave your practice reeling, especially if you are a solo or in a small firm. As we’ve pointed out before, one’s own death and disability are not pleasant to think about, but choosing a profession in which we owe fiduciary duties to others requires us to make contingency plans, like those laid out in my home bar association’s “What-If Preparedness” program.
In all events, thinking about the unthinkable is part of what we do.