M.H. Hoefich, University of Kansas School of Law
the past two decades, the United States has experienced an
increasing number of both natural and man-made disasters. The
Western United States has been plagued by massive wildfires.
The Eastern United States has suffered one “super
storm” after another. The memory of 9/11 and the havoc
it wrought is still fresh in every American’s memory.
Cyber intrusions into personal and business computer systems
occur each day across the nation. In short, no rational
American can pretend that some form of disaster will not
strike at home or at business. As lawyers, we are fiduciaries
of our clients and under the Rules of Professional Conduct,
we must protect their property, maintain the confidentiality
of their information, communicate with them, and conduct all
of our business on their behalf in a competent
2011, the American Bar Association’s Committee on
Disaster Response and Preparedness has maintained a website
that provides various resources for lawyers concerned with
disaster planning, including its “Surviving a Disaster.
A Lawyer’s Guide.”
Fundamentally, the ABA Opinion discusses several provisions of the “Rules of Professional Conduct” that are potentially implicated when disaster strikes a lawyer’s practice. Foremost among these are Rule 1.4 on communication, Rule 1.15 on the safekeeping of client property, and Rule 1.6 on keeping client confidences. Underpinning these rules is Rule 1.1 on lawyer competence.
To begin with Rule 1.1 and how it is implicated in time of disaster—a lawyer is required to be competent not only in traditional legal skills but also in technical skills, including the skills necessary to protect clients’ digital files, digital property, and other electronic media.3 This means in practice that a lawyer must be aware both of the capabilities and limitations of the various systems and devices that are used for such purposes as communications with clients, storage of client files, protection of clients' tangible property, and other related matters. Thus, for instance, if a lawyer maintains files only in hard copies and on a server, both in the lawyer's office, such a practice puts the clients' files at risk if the lawyer's office is damaged or destroyed by a natural or man-made disaster. This is precisely what has happened to lawyers who experienced the damaging effects of hurricanes on the East Coast in recent years. Secondly, I would suggest that Rule 1.1 in conjunction with Rule 1.15 would require a lawyer to maintain adequate insurance to protect potential client losses in the case of a disaster. This, of course, will require lawyers to make competent assessments of the risk of loss of client property and files in advance of any disaster that may occur. Third, lawyers, as part of their competent representation of their clients, should develop an advance disaster plan to deal with possible losses and damage.4 Such plans should be known not only to other lawyers in the firm, but also to staff who may need to implement the plan in the case that the lawyer is incapacitated or killed in the disaster.5 Such a plan should extend specifically to situations in which the disaster that injures the lawyer occurs away from the lawyer's office or home, such as when the lawyer is on vacation.
Rule 1.4 requires that a lawyer communicate with clients. In the event of a serious disaster, communications lines may be weakened or even eliminated for a period of time. In the event of a disaster, a lawyer will need to communicate with clients who have current matters that require frequent communication. A lawyer may also need to communicate with clients and former clients whose files or property are damaged or destroyed by the disaster. Existing clients may also want to reach their lawyer in the event of a disaster to seek the lawyer's assistance. In all of these cases and others, the lawyer is responsible under Rule 1.4 to provide some means of communication to a client. This may mean setting up alternative means to communicate via cellphone or the...