Legal Ethics: Safeguarding Client Property During Disasters

Considering legal ethics: How far must a lawyer go to safeguard property entrusted to them in the event of a disaster? Are lawyers ethically required to have a plan or just take precautions as circumstances dictate?

When considering legal ethics: How far must a lawyer go to safeguard property entrusted to them by a client or third party during a disaster? The American Bar Association’s (“ABA”) Model Rule of Professional Conduct (“Model Rules”) 1.15 requires a lawyer to safeguard client funds and other property entrusted to the lawyer during representation of the client. Many states’ ethics rules provide great detail on a lawyer’s duty to safeguard fund; however, they typically provide little guidance on safeguarding tangible property. Very few cases and ethics opinion speak directly on safeguarding client property during a disaster, collectively they indicate that a lawyer should develop an emergency action plan for handling client’s property—including case files—in the event of a disaster. This article will analyzes a lawyer’s ethical duties under the ABA’s Model Rules and the American Law Institute’s Restatement of the Law (3d) of the Law Governing Lawyers (“Restatement”). Issues relating to possible civil or criminal liability will not be discussed.

What is a Disaster?

A disaster is an emergency situation that exceeds a community’s ability to control and either temporarily or permanently disrupts the community’s sense of normality.[1] Disasters are classified as either a technological or natural disaster. Technological disasters are man-made events, usually associated with either intentional or negligent conduct of others.[2] Examples of technological disasters include (i) war, (ii) civil unrest and rioting, (iii) terrorism, (iv) major transportation accidents, (v) arson, and (vi) structure fires. Natural disasters are extreme meteorological or geological events that cause damage, disruption, and casualties usually leaving a community unable to function normally without outside assistance”.[3] Examples of natural disasters include: (i) tornados, (ii) hurricanes, (iii) earthquakes, (iv) landslides, and (v) flooding. Over 350 major disaster declarations have been issued since 2010, usually for natural disasters.[4]

What is a lawyer required to do in order to properly safeguard client property?

Comment 1 to Model Rule 1.15 states “a lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances”.[5] Restatement §44 similarly describes the lawyer’s duty to take “reasonable steps to safeguard the funds or property.”[6] Comment e to §44 further elaborates by stating several factors that should be weighed in evaluating the reasonableness of the steps needs to take in order to adequately safeguard the property: (i) the circumstances, such as the property’s: market value, special value to the client or third-person, or difficulty to replace (if known to the lawyer), (ii) the property’s transferability or convertibility, (iii) the property’s susceptibility to loss or other damage, (iv) the reasonable customs of lawyers in the community, (v) and the availability and cost of alternative methods of safekeeping.[7] A lawyer may modify their obligation with a client’s written informed consent on terms serving “some purpose other than the convenience or profit of the lawyer”.[8]

As each state adopted language consistent with the Restatement or Model Rule’s approach to safeguarding client property, they focused heavily on safeguarding funds and less on other property. Some ethics Opinions, such as Florida Bar’s 72-37, provide some insight in expecting a lawyer to “act prudently” while safeguarding client property.[9] Mississippi Bar’s Ethics Opinion 254 even states, “good common sense should provide answers to most questions that arise”.[10] Theoretically, safeguarding of a client’s tangible personal property even includes client files, which are also considered to be property of the client.[11]

Courts and disciplinary boards take the circumstances surrounding a disaster into consideration when determining the appropriateness of disciplinary action.[12] [13] However, since a lawyer is required to hold property with the care of a professional fiduciary, it is reasonable to conclude that a lawyer having notice impending disaster can only meet their ethical obligation by preparation and implementation of an emergency action plan.[14] Additionally, failure to create or implement an emergency action plan that leaves client files and property in a “vulnerable, unsecured, law office” can also run a risk of violating Model Rule 1.6 (confidentiality).[15] Ultimately, a lawyer charged with safeguarding client and third-party property before a disaster is in the best position to avoid ethical violations during a disaster.

What should an attorney do to meet their ethical obligation?

Though no method will guarantee a lawyer’s ability to safeguard client property during a disaster, there are four basic areas a lawyer should consider while developing their emergency action plan. First, at the outset of representation consider including a provision in the client engagement letter detailing how the client’s property will be handled during a disaster or emergency situation.[16] Second, consider storing client property off site with a reputable fiduciary organization that focus on safeguarding client property either online or in a secure storage facility.[17] [18] Third, consider contacting clients to arrange for them to pickup their property temporarily during a forecasted disaster, especially if it is not immediately needed for their case.[19] Finally, review insurance policies and determine whether the right type of insurance policy has been purchased at the right amount for the client’s property.[20] Ultimately, development an emergency action plan focuses on reducing the number of questions a lawyer needs to answer when time counts. Answer these questions well in advance of a disaster will also allow the lawyer to find the best solutions to fit their unique situation.

Conclusion

Given that disasters are becoming increasingly more common, it would be imprudent for lawyers to regard disasters as simply, “acts of God”.[21] It is very safe to assume that rules of professional conduct in the legal profession will not be suspended regardless of the circumstances a disaster may impose upon a community.[22] However, taking the time to develop an emergency action plan will reduce a lawyer’s risk of violating ethical standards while safeguarding client property and confidentiality during an emergency or disaster.

Sources

[1] Perry, Ronald. What Is a Disaster?: New Answers to Old Questions, 25-28. Philadelphia, PA, 2005.

[2] Pappas, Fay. “Note: Gulf Coast Blowout: How the BP oil spill is corroding Communities and what Attorneys & Policymakers must do to stop it.” Univ. of Fl. Journal of Law and Pub. Pol. 22 (2011): 229.

[3] Petrucci, Olga. The Impact of Natural Disasters: Simplified Procedures and Open Problems. Rijeka: InTech Europe, 2012. 111.

[4] “Disaster Declarations by Year.” Accessed June 25, 2015. https://www.fema.gov/disasters/grid/year.

[5] Dzienkowski, John S. “2014 ABA Model Rules.” In Professional Responsibility, Standards, Rules and Statutes 2014-2015, p. 47. 2014-2015 ed. St. Paul, MN: West Academic Publishing, 2014.

[6] Dzienkowski, John S. “Restatement (Third) of Law Governing Lawyers.” In Professional Responsibility, Standards, Rules and Statutes 2014-2015, p. 641.

[7] “Safeguarding and Segregating Property, Comment e.” In Restatement (Third) of Law Governing Lawyers, §44. Vol. 1. West Publishing Company, 2014.

[8] Ibid.

[9] Zehmer. “Professional Ethics of the Florida Bar Opinion 72-37.” The Florida Bar. November 27, 1972.

[10] “Ethics Opinion No. 254 of the Mississippi Bar.” The Mississippi Bar: 254. December 8, 2005.

[11] Keim, James. “Law Office Disaster Preparedness: The Liability and Ethics of Attorneys.” The Florida Bar Journal 80, no. 5 (2006): 26.

[12] Varnado, Sandra, and Dane Ciolino. “Reconsidering Lawyers’ Ethical Obligations in the Wake of a Disaster.” The Professional Lawyer 19, no. 4 (2009): 8-19.

[13] Nava, Brenna. “Comment: Hurricane Katrina: The Duties and Responsibilities of an Attorney in the Wake of a Natural Disaster.” St. Mary’s Law Journal 37 (2006): 1153-192.

[14] Dzienkowski, John S. “2014 ABA Model Rules.” p. 47.

[15] Varnado, “Reconsidering Lawyers’ Ethical Obligations in the Wake of a Disaster” p. 8-19.

[16] Ibid.

[17] Ibid.

[18] Keim, James. “Law Office Disaster Preparedness.” p. 26.

[19] Ibid.

[20] Langford, Carol. “Ethical Duties of Disaster Preparation.” California Bar Journal. February 2006. Accessed June 20, 2015. http://bit.ly/1Cuo8f2.

[21]Tuft, Mark. “Practicing Law in Harm’s Way.” TECHNO ETHICS. 2006. Accessed June 20, 2015. http://goo.gl/kwEfdw.

[22]Ibid.