Law Practice Management, 0820 WYBJ, Vol. 43 No. 4. 54
| Author | Mark Bassingthwaighte ALPS Missoula, Montana |
| Position | Vol. 43 4 Pg. 54 |
Ethics and Disaster Recovery Planning
Mark Bassingthwaighte ALPS Missoula, Montana
The ABA’s issuance of Formal Ethics Opinion 482 in September of 2018 finally made it quite clear. Lawyers have an ethical duty to develop a disaster recovery plan. Consider the import of how the Standing Committee on Ethics and Professional Responsibility concluded their opinion when they stated: “Lawyers must be prepared to deal with disasters. 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.”
Speaking frankly, I’ve always assumed this duty existed because I’ve never come across an exception in any of the Model Rules of Professional Conduct that says something along the lines of this rule doesn’t apply if the lawyer happens to be dealing with the aftermath of a disaster. Over the years, my only challenge has been in trying to convince other lawyers of the necessity and obligation to put such a plan in place.
With this duty to prepare now firmly established, what rules need to be taken into consideration? Among a few others, Formal Opinion 482 underscored the importance of Rule 1.1 (Competence), Rule 1.4 (Communications), and Rule 1.15 (Safekeeping Property), but I would also encourage you to not overlook Rule 1.3 (Diligence) and Rule 1.6 (Confidentiality). Think about all these rules in the context of developing a disaster recovery plan, or better yet, a business continuity plan.
Start with comment 8 to Rule 1.1 (Competence), which in part reads, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” This means lawyers must not only understand how any technology in use at a firm might be impacted by various disaster scenarios, they must also be able to determine how any relevant technology might be utilized to minimize the impact of various disasters.
Next is Rule 1.3 (Diligence), which I see as a no-brainer. “A lawyer shall act with reasonable diligence and...
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