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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4107" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2018/10/Hurricane-300x200.jpg" alt="" width="300" height="200">In the aftermath of Hurricane Florence, which last month dumped up to <a href="https://www.axios.com/hurricane-florence-flooding-carolinas-rivers-rise-b2851e67-17e4-4a5d-95aa-6cdefacc4a45.html">35 inches of rain</a> on parts of the&nbsp;Carolinas,&nbsp;Virginia and Maryland,&nbsp;<a href="https://en.wikipedia.org/wiki/Hurricane_Florence">caused 48 deaths</a>, and up to <a href="https://www.cnbc.com/2018/09/17/moodys-hurricane-florence-damage-estimated-at-17-to-22-billion.html">$22 billion in property damage</a>, comes a timely new <a href="http://filehost.thompsonhine.com/uploads/aba_formal_opinion_482.authcheckdam.pd_9e25.pdf">ABA opinion</a> about our ethical obligations related to disasters.
The hurricane did not spare lawyers and law firms.&nbsp; Ahead of the 1,000-year storm, Law360.com reported that firms in Florence&rsquo;s projected path shuttered offices, activated contingency plans, and were glad if their firm systems and client data were stored in the cloud.&nbsp; (Subscribers can access the story <a href="https://www.law.com/legaltechnews/2018/09/14/law-firms-evacuate-safeguard-data-ahead-of-hurricane-florence/">here</a>.)&nbsp; (And doing the profession proud, volunteer lawyers manned hot-lines <a href="http://www.abajournal.com/news/article/volunteer_lawyers_help_victims_of_hurricane_florence">to help storm victims</a> get&nbsp;needed legal services.)
But what are our actual&nbsp;disaster-related ethics duties?
Communication, withdrawal, files and more
Disasters happen; that&rsquo;s a fact of life.&nbsp; The entire 13-page Opinion 482 (Sept. 19. 2018) repays reading.&nbsp; Some highlights and nitty-gritty advice from the opinion:
<ul>
<li><a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications.html">Model Rule 1.4</a> requires us&nbsp;to communicate with our clients.&nbsp; To be able to reach clients following a disaster, the opinion says,&nbsp;you should maintain or be able to quickly&nbsp;recreate, lists of current clients and their contact information.</li>
<li>You &ldquo;must evaluate in advance storing files electronically&rdquo; so that you can have access to those files via Internet or smart device, if such are available after a disaster.</li>
<li>If you can continue to provide services in the disaster area, you continue to have the same ethics duties as before; but in an emergency, you may be able to provide advice outside your area of expertise, as allowed by comment [3] to <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence.html">Rule 1.1</a> (&ldquo;Competence&rdquo;).&nbsp; (We&rsquo;ve previously written <a href="https://www.thelawforlawyerstoday.com/2016/09/lawyering-911-giving-legal-advice-in-an-emergency/">here&nbsp;</a>about &ldquo;emergency lawyering.&rdquo;)</li>
<li>If you&rsquo;re a litigator, check with courts and bar associations to see if deadlines have been extended across the board.</li>
<li>You &ldquo;must take reasonable steps in the event of a disaster to ensure access to funds&rdquo; you are holding in trust, the opinion advises.&nbsp; Of course, your obligations will vary depending on the circumstances.&nbsp; If you know of an impending disaster, you should determine if you should reasonably transfer client funds to an account that will be accessible; or even attempt to complete imminent transactions before the disaster hits, &ldquo;if practicable.&rdquo;</li>
<li>You may need to withdraw after a disaster, under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_16_declining_or_terminating_representation.html">Rule 1.16</a> (&ldquo;Withdrawal&rdquo;) and <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_3_diligence.html">Rule 1.3</a> (&ldquo;Diligence&rdquo;), if a client needs immediate legal services that you will be unable to timely provide.</li>
<li>If client files are destroyed, your duty of communication will require you to notify current and former clients about the loss of client property with &ldquo;intrinsic value.&rdquo;&nbsp; But there is no duty, the opinion concludes, to notify either current or former clients about the loss of documents that have no intrinsic value, for which there are electronic copies, or that serve no current useful purpose.</li>
<li>To prevent the loss of important records, &ldquo;lawyers should maintain an electronic copy of important documents in an off-site location that is updated regularly.&rdquo;</li>
</ul>
Disaster Prep 101:
The ABA has a committee devoted solely to the topic of disaster preparedness, and its <a href="https://www.americanbar.org/groups/committees/disaster.html">website</a> has helpful resources and tips on everything from getting insurance, to types and methods of information retention, and how you can assess damage and rebuild after a disaster strikes your practice.&nbsp; The committee&rsquo;s 44-page <a href="https://www.americanbar.org/content/dam/aba/events/disaster/surviving_a_disaster_a_lawyers_guide_to_disaster_planning.authcheckdam.pdf">Surviving a Disaster &mdash; A Lawyer&rsquo;s Guide </a>(Aug. 2011) is also helpful.
And remember, calamitous disasters aren&rsquo;t confined to weather, war, and the like.&nbsp; A disastrous health event can leave your practice reeling, especially if you are a solo or in a&nbsp;small firm.&nbsp; As we&rsquo;ve pointed out <a href="https://www.thelawforlawyerstoday.com/2017/04/3240/">before</a>, one&rsquo;s own death and disability are not pleasant to think about, but choosing a profession in which we owe fiduciary duties to others&nbsp;requires us to make contingency plans, like those laid out in my home bar association&rsquo;s &ldquo;<a href="https://www.clemetrobar.org/CMBA_Prod/CMBA/Legal_Professionals/Sections_Committees/Committees/Ethics/1What_If_Preparedness.aspx?WebsiteKey=bd5c4afd-969a-412d-9aa2-9b677d28e1a9&amp;hkey=24153127-3969-471c-8786-4715afe8af3f">What-If Preparedness&rdquo; program</a>.
In all events, thinking about the unthinkable is part of what we do.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Riders on the storm:  your ethics duties in a disaster