ABA Provides (Fairly Obvious) Advice on “Ethical Obligations Related to Disasters”

In Louisiana, we know disasters. Katrina, Rita, Betsy, and BP to name a few. So, our lawyers unfortunately have experienced the personal, legal, and ethical issues associated with them. What obligations do lawyers have in the wake of such natural and man-made catastrophies?

In September 2018, the American Bar Association issued a formal opinion to provide guidance to lawyers when a large-scale disaster occurs. See ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 482 (Sep. 19. 2018). Among other issues, the opinion addresses a lawyer’s obligations to safeguard property, to prepare for practice interruption, to communicate with existing clients, and to properly contact prospective clients. In addition, the opinion provides links to on-line resources made available by the ABA’s Committee on Disaster Response and Preparedness.1 Here are the highlights of the opinion, with a few observations. My observations follow a fairly simple theme: if a lawyer is using modern technology and practices, the lawyer is prepared not only for a disaster, but to go to work tomorrow morning.

Communication

The opinion advises that lawyers should “maintain, or be able to create on short notice, electronic or paper lists of current clients and their contact information.” That information should be stored “in a manner that is easily accessible.” Id. at 2-3. True, but this should be the case at all times irrespective of a disaster.

The opinion advises that lawyers should inform their clients how to communicate with them in the event of a disaster, preferably in an engagement letter. Good advice, but a lawyer should already be communicating with clients by email, mobile phone, and text messaging using industry-leading providers such as Gmail, Verizon, and AT&T. If so, clients will easily be able to communicate with their lawyers pre- and post-disaster.2 A modern lawyer who relies solely on landline phones and snail mail for communication is a fool.3

Continuity of Representation

The opinion warns, quite obviously, that “[l]awyers may not be able to gain access to paper files following a disaster.”4 Id. at 4. As a result, the committee sugests that a lawyer must evaluate in advance:

storing files electronically so that they will have access to those files via the Internet if they have access to a working computer or smart device after a disaster. If Internet access to files is provided through a cloud service, the lawyer should (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.

Id. at 4. Again, good advice. But a lawyer should not store files electronically just in preparation for disasters. In 2018, a lawyer should do so because its 2018.

The committee advises that lawyers should keep track of deadlines and extensions. See id. at 5. Again, good advice, but a lawyer should already be using an electronic task manager (like Todoist.com or the like). Such services work after disasters. And on sunny days, they provide email, text message, and local notifications to assure that the lawyer meets deadlines in the ordinary course of practice.

The committee suggests that a lawyer should assure that the lawyer can access trust funds in the wake of a disaster. Id. at 5-6. But if the lawyer banks at a large federally-insured institution, the lawyer already has access to on-line banking. The lawyer just needs to use it.

Withdrawal from Representation

Lawyers who are “unable to fulfill their ethical responsibilities” following a disaster must withdraw from those representations. This may occur, for example, if the lawyer “suffers severe injury or mental distress due to the disaster.” See id. at 6. This is fairly obvious.

Multi-Jurisdictional Practice

Lawyers displaced by a disaster may be able to practice law temporarily in another jurisdiction. Such practice must, of course, be authorized in the new jurisdiction. Such authorization may be provided by the other jurisdiction’s version of ABA Model Rule 5.5(c)5, or by order of its highest court pursuant to a local version of the ABA Model Court Rule on Provision of Legal Services Following Determination of Major DisasterSee id. at 7.

Conversely, lawyers practicing in “jurisdictions unaffected by the disaster” may travel to the affected area to provide representation to disaster victims. Lawyers should undertake such multi-jurisdictional practice only “when permitted by that jurisdiction’s laws or rules, or by order of the jurisdiction’s highest court.” Id. at 12.

Loss of Files and Client Property

The opinion notes that some “lawyers located in an area affected by a disaster may have their files destroyed.” See id. at 8. While this should not happen in the first place, see supra on “Continuity of Representation,” when it does, the lawyer must promptly notify the lawyer’s clients, and  then”make reasonable efforts to reconstruct documents of intrinsic value for both current and former clients, or to obtain copies” of them from an “external source.” Id. at 9. Documents of “intrinsic value” include “executed wills and trusts, deeds, and negotiable instruments.” Id. at 8. No such obligation exists as to documents without intrinsic value “that serve no useful purpose to the client or former client.” Id. at 9.

Solicitation and Advertising

Finally, the committee advises that the existence of a disaster “does not excuse compliance with lawyer advertising and solicitation rules.” Id. at 11. Although live person-to-person contact is generally prohibited, lawyers may send disaster victims “‘targeted’ written or recorded electronic material” that otherwise complies with the standards of conduct. Id. In addition, lawyers “may solicit in-person to offer pro bono legal services to disaster victims, because the lawyer’s motive does not involve pecuniary gain.” Id.

Conclusion

This formal opinion does not offer bad advice. But its advice is fairly banal and, in many cases, obvious. For that reason, the opinion is not particularly helpful. Nevertheless, if a lawyer takes anything away from the committee’s suggestions, it should be this: use Gmail, a scanner, Dropbox, and a cell phone. Doing so will avoid most of the potential issues faced by a lawyer in the wake of a disaster.

  1.  See, e.g., ABA Committee on Disaster Response and Preparedness, Surviving a Disaster A Lawyer’s Guide (Aug. 2011).
  2. Granted, many lawyers who endured the aftermath of Hurricane Katrina will remember that mobile phones were inoperable for many days immediately after the storm. These technological issues, however, have largely been solved over the last decade. Moreover, email through cloud-based services such as Gmail was never interrupted.
  3. To the committee’s credit, it notes that “lawyers must be mindful of their obligation under Rule 1.1 to keep abreast of technology relevant to law practice.” Id. at 3.
  4. The committtee observes that “lawyers who maintain only paper files or maintain electronic files solely on a local computer or local server are at higher risk of losing those records in a disaster.” Id. at 8.
  5. This rule provides that a “lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. See ABA Model Rules of Prof’l Conduct r. 5.5(c).

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