Ride the Lightning

ABA Issues New Ethics Opinion on the Duties of Lawyers Following a Disaster

September 25, 2018

The ABA Journal reported last week that the ABA had released ABA Formal Ethics Opinion 482 on September 19^th. In the opinion, the Standing Committee on Ethics and Professional Responsibility clarifies the ethical obligations attorneys face when disaster strikes.

Lawyers must follow the duty of communication required by Rule 1.4 of the ABA Model Rules of Professional Conduct, which requires lawyers to communicate regularly with clients and keep clients reasonably apprised of their cases. Following a disaster, a lawyer must evaluate available methods to maintain communication with clients. The opinion instructs that lawyers should keep electronic lists of current clients in a manner that is "easily accessible."

Lawyers should pay attention to the duty of competency, Rule 1.1, which includes a technology clause that requires lawyers to consider the benefits and risks of relevant technology. Because a disaster can destroy lawyers' paper files, lawyers "must evaluate in advance storing files electronically" so that they can access those files after a disaster. Storing client files through cloud technology requires lawyers to consider confidentially obligations.

With a little due diligence, this should not present much of a problem. John and I constantly encourage lawyers to keep backups in the cloud. It is fine to have a local backup, but the cloud provides additional security.

If a disaster causes the loss of client files, lawyers must also consider their ethical obligations under Rule 1.15, which requires lawyers to safeguard client property. For current clients, lawyers can attempt first to reconstruct files by obtaining documents from other sources. If they cannot, lawyers must notify the clients of the loss of files or property. To prevent such losses, "lawyers should maintain an electronic copy of important documents in an off-site location that is updated regularly." Yup, we're back to the cloud again.

A disaster could impact financial institutions and, therefore, client funds. Thus, lawyers "must take reasonable steps in the event of a disaster to ensure access to funds the lawyer is holding in trust." It struck me that this could be highly problematic in some circumstances, but of course it is wise to do whatever one can.

A disaster may cause an attorney to have to withdraw from a client's case under Rule 1.16. "In determining whether withdrawal is required, lawyers must assess whether the client needs immediate legal services that the lawyer will be unable to timely provide," the opinion notes. We certainly saw a lot of withdrawals after Katrina. Entire law practices closed their doors, some forever.

The opinion also warns lawyers that they should not take advantage of disaster victims for personal gain: "Of particular concern is the possibility of improper solicitation in the wake of a disaster." Ambulance chasers, hurricane and flooding chasers – all distasteful, but they've been with us for a long time.

On balance, the opinion provides some good guidance and may help lawyers to form an incident response plan that complies with the guidance of this opinion. It's worth taking a look at your incident response plan to see if modifications are warranted. And if you don't have a formal incident response plan, this is a good time to formulate one!

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