Lawyers' Duties After Disasters

• Author: David L. Hudson Jr.
• Pages: 28-29

Lawyers have a var iety of ethical obligations to con-

sider after disas ters, according to the recently release d

ABA Formal Opinion 482. Lar ge-scale disasters that

have devastated citie s across the country reinforced the

need for the ABA to addres s the myriad rules that law-

yers must consider. “In light of recent disasters such a s

Katrina and Florence, t here is certainly a need for a for-

mal ethics opinion to add ress how lawyers should plan

or prepare for natural disa sters to protect their clients’

interests,” says ethics ex pert John P. Sahl, a professor at

the University of Akron School of L aw.

Perhaps most fundamentally, lawyers must fol low the

duty of communication require d by Rule 1.4 of the ABA

Model Rules of Professional Conduct, which r equires

lawyers to communic ate regularly with clients and keep

them apprised of their case s.

After a disa ster, a lawyer must

evaluate available method s to

maintain commun ication with

clients. The opinion relates that

lawyers should keep electronic

lists of current clients i n a man-

ner that is “easily acces sible.”

In these early communica-

tions, clients need to know

whether their lawyers w ill be

able to continue their represen-

tation. The opinion also says a

fee agreement or engagement

letter could explain how t o con-

tact a lawyer in t he event of an

emergency or disaster.

“The opinion is a very help-

ful roadmap w ith a lot of prac-

tical tips for all law yers,” Sahl

says. “Although the opi nion

focuses primar ily on the obliga-

tions of managers and super vi-

sors, all lawyers ne ed to review

this opinion to ensure that the y

are taking the nec essary steps

to protect the interest s of cli-

ents and others when a natural

disaster occurs.”

Lawyers should als o remem-

ber that Rule 1.1, the duty of

competency, include s a technol-

ogy clause that requ ires lawyers

to consider the benefi ts and risks of relevant tech nology.

Because a disas ter can destroy lawyers’ paper fi les, law-

yers “must evaluate in adva nce storing fi les electroni-

cally” so they c an access those fi le s after a disaster.

Storing client fi les through cloud technology requires

lawyers to consider confi dentiality obligations. Lawyers

should make sure to “(i) choose a reputable company, and

(ii) take reasonable steps to ensu re that the confi dential-

ity of client information is preser ved, and that the infor-

mation is readily ac cessible to the lawyer.”

If a disaster cau ses the loss of client fi les, lawyers must

also consider their ethica l obligations under Rule 1.15,

which requires law yers to safeguard client property. For

current clients, law yers can attempt fi rst to re construct

fi les by obta ining documents from other sources. If they

cannot, lawyer s must notify the

clients of the loss of fi le s or prop-

erty. To prevent such losses, “law-

yers should maintain an elec tronic

copy of important documents in

an o -site loc ation that is updated

regularly.” Lawyers can st ore fi les

in the cloud if they can meet

ethical obligations rega rding

confi dential ity and access to

informat ion.

In addition to client informa-

tion, a disaster could impa ct

fi na ncial institution s and there-

fore client funds. Thus, lawyers

“must take reasonable step s in

the event of a disaster to ensu re

access to fu nds the lawyer is hold-

ing in trust.” Other steps l awyers

should consider inc lude “provid-

ing for another trusted sign atory

on trust account s” and “designat-

ing a successor lawyer to w ind up

the lawyer’s practice.”

Furthermore, a dis aster may

cause an attorney t o have to with-

draw from a client’s case under

Rule 1.16. “In determining wheth-

er withdrawal is requ ired, lawyers

must assess whether the client

needs immediate lega l services

that the lawyer wi ll be unable to

timely provide,” the opinion says.

Lawyers’ Duties After

Disasters

New ethics opinion o ers timely reminder

By David L. Hudson Jr.

PHOTO COURTESY OF BAKER DONELSON

28 || ABA JOURNAL DECEMBER 2018

Ethics

Practice

“I HAVE SEEN SITUATIONS WHERE

LAWYERS WERE NOT PREPARED.

THERE CAN BE OBVIOUS ISSUES WITH

PAPER FILES AND AN INABILITY TO

COMPLY WITH FILING DEADLINES.”

— WENDY ELLARD