When Disaster Strikes: Lawyer Responsibilities in the Event of a Disaster, 0519 KSBJ, 88 J. Kan. Bar Assn 5, 29 (2019)

AuthorM.H. Hoefich, University of Kansas School of Law
Position88 J. Kan. Bar Assn 5, 29 (2019)

When Disaster Strikes: Lawyer Responsibilities in the Event of a Disaster

88 J. Kan. Bar Assn 5, 29 (2019)

Kansas Bar Journal

May, 2019

M.H. Hoefich, University of Kansas School of Law

Over 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 manner.[1] There is no exception from these obligations in times of disaster.

Since 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.”[2] However, these materials do not focus on the ethical obligations of a lawyer related to a disaster. Thus, on September 19, 2018, the ABA Committee on Ethics and Professional Responsibility published Formal Opinion 482 on this subject. Every practicing lawyer must familiarize themselves with this opinion and make sure that their practice is prepared to deal with a disaster should it occur.

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 Internet. Whatever means of communication are chosen for disaster communications, these should be robust and likely to survive a disaster, and...

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