Ride the Lightning

Ya Gotta Have a Plan: Disaster Recovery

October 31, 2018

I loved the title of this post by Dennis A. Rendleman, Ethics Counsel, ABA Center for Professional Responsibility in Your ABA.

If you haven’t kept up with the recent opinions about your responsibilities after a disaster, Rendleman presents a quick summary.

The Standing Committee on Ethics and Professional Responsibility has recently issued two Formal Ethics Opinions:

No. 482:

The Rules of Professional Conduct apply to lawyers affected by disasters. Model Rule 1.4 (communication) requires lawyers to take reasonable steps to communicate with clients after a disaster. Model Rule 1.1 (competence) requires lawyers to develop sufficient competence in technology to meet their obligations under the Rules after a disaster. Model Rule 1.15 (safekeeping property) requires lawyers to protect trust accounts, documents and property the lawyer is holding for clients or third parties. Model Rule 5.5 (multijurisdictional practice) limits practice by lawyers displaced by a disaster. Model Rules 7.1 through 7.3 limit lawyers’ advertising directed to and solicitation of disaster victims. By proper advance preparation and planning and taking advantage of available technology during recovery efforts, lawyers can reduce their risk of violating the Rules of Professional Conduct after a disaster.

No. 483:

Model Rule 1.4 requires lawyers to keep clients “reasonably informed” about the status of a matter and to explain matters “to the extent reasonably necessary to permit a client to make an informed decision regarding the representation.” Model Rules 1.1, 1.6, 5.1 and 5.3, as amended in 2012, address the risks that accompany the benefits of the use of technology by lawyers. When a data breach occurs involving, or having a substantial likelihood of involving, material client information, lawyers have a duty to notify clients of the breach and to take other reasonable steps consistent with their obligations under these Model Rules.

One aspect that binds these two opinions together is that they both recommend lawyers have a “plan.” Fundamentally, a lawyer can satisfy the ethical obligations discussed in both opinions by preparing for disasters or data breaches by establishing an internal practice plan for the protection of clients and continuation of the obligations of the law practice.

The post continues with some good advice and additional resources. I still love the tip of the hat Broadway post title. Well done.

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