Law office disaster preparedness: the liability and ethics of attorneys.

• Author: Keim, James

Dateline: Wednesday, October 19, 2005. Hurricane Wilma churns in the western Caribbean as the strongest Atlantic-based storm in recorded history. The projected path brings this category five hurricane, the third of the season, on a collision course with the Florida peninsula. Retail businesses along the southwestern Gulf coast of Florida begin the task of boarding up. Lines form at gas stations. Store shelves begin to empty. Office employees periodically check their computers for updates on the projected path and intensity of the storm. Even though the impact of the hurricane remains distant--several days away--some workers leave their jobs to ensure that they obtain food, water, and fuel before supplies disappear. When an impending disaster nears, our thoughts first turn to our families and our homes. In the hundreds of law firms up and down Florida's coasts and inland counties, are staff members considering whether they will have a viable business to return to on Monday? Are attorneys giving serious thought to the preservation of their clients' property, interests, and case files?

Like other businesses, law firms need to confront and prepare for impending disasters. Law firms must develop and commit to implementing a comprehensive disaster plan. Every member and employee of the law firm should fulfill a definitive role in carrying out the firm's disaster plan. Of course, this presumes that the leaders of the law firm have given consideration to the idea, have formulated a plan, and designated one or more individuals to ensure that the plan is carried out, even in their absence. Why should lawyers take special precautions? Unlike most other businesses, law firms and their lawyers have greater obligations to their clientele. They have professional, ethical, fiduciary, and legal duties to protect, safeguard, and preserve client funds, interests, and property. With the recent increase in the number of hurricanes assaulting the state, have Florida lawyers directed enough attention toward how they can best protect and preserve their clients' property and interests? If not, now is certainly the time to do so. While the 2005 hurricane season broke records, predictions call for increased activity impacting the U.S. mainland over the next several decades. (1)

Preparing for a disaster is painful and time consuming. It results in distractions, lost revenue, and decreased productivity. But taking reasonable steps to prepare for the worst case scenario can make the difference in the law firm's ability to more quickly recuperate after a disaster. In the wake of a catastrophic event, the price of failing to formulate and carry out a disaster plan ahead of time could ultimately result in the total loss of the firm's business enterprise, as well as liability to clients and third parties for failing to take reasonable precautions.

The Ethics of Law Firm Disaster Preparedness

Could a lack of preparedness on the part of a lawyer constitute unethical conduct in violation of the Rules of Professional Conduct? Historically, lawyers have possessed an ethical duty to safeguard client property and funds. (2) While the Rules Regulating The Florida Bar do not contain a specific requirement that a lawyer have in place a plan for disaster preparedness, arguably, several of the Florida Rules of Professional Conduct impose such a requirement implicitly within their meaning, intent, and design. A lawyer, in considering whether to adopt and implement a disaster plan, should first consider the following Rules of Professional Conduct:

Rule 4-1.15. Safekeeping property: "A lawyer shall comply with The Florida Bar Rules Regulating Trust Accounts."

Rule 4-1.16(d). Protection of Client's Interest: "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled...."

Rule 5-1.1(a). Trust Accounts: "A lawyer shall hold in trust, separate from the lawyer's own property, funds and property of clients or third persons that are in a lawyer's possession in connection with a representation."

These rules place a broad and considerable affirmative duty on lawyers to preserve client property, funds, and interests within the context of the attorney-client relationship, and they do so without carving out any exceptions for lawyers faced with natural disasters or any other specific type of harm.

Indeed, the Supreme Court of Florida focused on the lawyer's fundamental ethical duty to protect and preserve client property in The Florida Bar v. Ward, 599 So. 2d 650 (Fla. 1992). In that case, the court noted:

When an individual relies on an attorney for legal assistance, that person places his trust not only in the individual attorney, but also in the legal profession itself.... Never is an individual's trust in attorneys more evident, or more at risk, than when he places funds or property into the hands of his attorney.... The responsibility of preserving client property rests in the hands of both individual attorneys and the legal profession itself. (3)

Ethically, what degree of care must a lawyer exercise to protect and preserve client property and interests? What guidance, if...