New ethics opinion offers timely reminder of lawyers' duties after disasters
Wendy Ellard: “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.” Photo courtesy of Baker Donelson.
Lawyers have a variety of ethical obligations to consider after disasters, according to the recently released ABA Formal Opinion 482. Large-scale disasters that have devastated cities across the country reinforced the need for the ABA to address the myriad rules that lawyers must consider. “In light of recent disasters such as Katrina and Florence, there is certainly a need for a formal ethics opinion to address how lawyers should plan or prepare for natural disasters to protect their clients’ interests,” says ethics expert John P. Sahl, a professor at the University of Akron School of Law.
Perhaps most fundamentally, 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 them apprised of their cases. After a disaster, a lawyer must evaluate available methods to maintain communication with clients. The opinion relates that lawyers should keep electronic lists of current clients in a manner that is “easily accessible.”
In these early communications, clients need to know whether their lawyers will be able to continue their representation. The opinion also says a fee agreement or engagement letter could explain how to contact a lawyer in the event of an emergency or disaster.
“The opinion is a very helpful roadmap with a lot of practical tips for all lawyers,” Sahl says. “Although the opinion focuses primarily on the obligations of managers and supervisors, all lawyers need to review this opinion to ensure that they are taking the necessary steps to protect the interests of clients and others when a natural disaster occurs.”
Lawyers should also remember that Rule 1.1, the duty of competency, 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 they can access those files after a disaster.
Storing client files through cloud technology requires lawyers to consider confidentiality obligations. Lawyers should make sure to “(i) choose a reputable company, and (ii) take reasonable steps to ensure that the confidentiality of client information is preserved, and that the information is readily accessible to the lawyer.”
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.” Lawyers can store files in the cloud if they can meet ethical obligations regarding confidentiality and access to information.
In addition to client information, 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.” Other steps lawyers should consider include “providing for another trusted signatory on trust accounts” and “designating a successor lawyer to wind up the lawyer’s practice.”
Furthermore, a disaster may cause an attorney to have to withdraw from a client’s case under Rule 1.16. “In determining wheth- er withdrawal is required, lawyers must assess whether the client needs immediate legal services that the lawyer will be unable to timely provide,” the opinion says. “Lawyers who are unable to continue client representation in litigation matters must seek the court’s permission to withdraw as required by law and court rules.”
The opinion highlights an important point for lawyers—“diligent preparation,” says Wendy Huff Ellard, a partner at Baker Donelson in Jackson, Mississippi, whose clients are public or private nonprofit entities, contractors and industry associations impacted by disasters.
“I have seen situations where lawyers were not prepared,” Ellard recounts. “There can be obvious issues with paper files and inability to comply with filing deadlines during a large event. But I’ve also seen issues with electronic file access following an event—many lawyers do not have backup systems in place to account for system crashes and inaccessibility.” Ellard says the opinion is a timely reminder of attorneys’ ethical obligation to remain vigilant even during times of disaster and provides actionalbe tips to remain in compliance.
LAWYER DISPLACEMENT AND VOLUNTEERING
The opinion also provides guidance to lawyers who are displaced from their jurisdictions and seek to practice law in another jurisdiction. Such displaced lawyers may be able to practice temporarily in another jurisdiction, as ABA Model Rule 5.5(c) indicates. However, displaced lawyers need to obtain approval from the new jurisdiction. The formal ethics opinion cites a key provision of the ABA Model Court Rule on Provision of Legal Services Following Determination of Major Disaster. That rule provides in part that a lawyer displaced by a disaster “may provide legal services in this jurisdiction on a temporary basis if permitted by order of the highest court of the other jurisdiction.”
The opinion also explains that lawyers practicing in jurisdictions not impacted by a disaster may wish to volunteer their services to those who are impacted. “Out-of-state lawyers may provide representation to disaster victims in the affected jurisdiction only when permitted by that jurisdiction’s laws or rules, or by order of the jurisdiction’s highest court.”
The ABA Model Court Rule on Provision of Legal Services Following Determination of Major Disaster requires that “the supreme court of the affected jurisdiction must declare a major disaster and issue an order that allows lawyers in good standing from another jurisdiction to temporarily provide pro bono legal services in the affected jurisdiction through a nonprofit bar association, pro bono program, legal services program or other organization designated by the courts.”
Ellard says “Opinion 482 provides helpful points on how impacted lawyers can continue their practice elsewhere and how those who aren’t impacted can potentially assist in other jurisdictions. I hope all of my colleagues heed the call and consider volunteering their time through the ABA or some other reputable pro bono legal services provider.”
The opinion bluntly warns against “the possibility of improper solicitation in the wake of a disaster.” ABA Model Rule 7.3(b) generally prohibits direct solicitation of potential clients: “A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer or law firm’s pecuniary gain.”
Given some egregious behavior by some lawyers after disasters, the caveat from the opinion is understandable. “This part of the opinion reflects a concern about lawyers possibly overreaching clients in the direct face-to-face solicitation context,” Sahl says.
Ethics experts praised the opinion for its comprehensiveness and prag- matism. “I am pleased to see Opinion 482,” says Ellard. “Through my prior experience with the ABA’s Standing Committee on Disaster Re- sponse and Preparedness and service on the YLD Disaster Legal Services Team, I have seen firsthand the impacts to those in our profession and to the public. I very much appreciate the continuing support and efforts of the ABA to assist lawyers that are impacted and the public generally.”
