Disaster Planning for the Legal Profession

As disasters seem to be becoming more foreseeable, what areas should the legal community start looking towards to prepare themselves for the professional ethics delima.

The following is an excerpt from the forthcoming publication of “Operation Disaster Defender: A Multi-Disciplinary Approach to Preserving Access to Justice and Client Property Through Disaster Preparedness” set to publish in the Western Michigan Cooley Journal of Practical and Clinical Law in May 2018.

Though no method will guarantee a lawyer’s ability to safeguard client property during a disaster, both self assessed and accredited programs recommend or imply that a lawyer should consider several common areas while developing an emergency action plan. These areas include: (1) planning, (2) facilities, (3) communication, and (4) insurance.

First, at the outset of representation, a lawyer should consider including a provision in the client engagement letter detailing how the client’s property will be handled during a disaster or emergency situation. [1] This can range anywhere from a highly detailed manual or a brief few paragraphs that outline each parties’ duties and responsibilities.

Second, he or she should consider storing client property off site with a reputable fiduciary organization that focuses on safeguarding client property either online or in a secure storage facility. [2] Many times theses organizations have personnel, systems, and expertise dedicated to ensuring the survival of the property during a disaster.

Third, a lawyer should consider contacting clients to arrange for them to pick up his or her  property temporarily during a forecasted disaster, especially if it is not immediately needed for his or her  cases. [3] Though, conceptually, this practice might run afoul of the model rule’s if the client lacks the ability to store the property during a disaster themselves.

Finally, he or she should review insurance policies and determine whether the right type of insurance policy has been purchased at the right amount for the client’s property. [4] This is a good practice not only at work, but at home. Many times, individuals will buy insurance and forget to review it at least annually to ensure adequate coverage.

Ultimately, developing an emergency action plan focuses on reducing the number of questions a lawyer needs to answer when time counts. Answering these questions well in advance of a disaster will also allow the lawyer to find the best solutions to fit his unique situation. However, the issue with self assessed standards is that there is no confirmation of the actual accomplishment of preparedness objectives before a disaster strikes.

References:

[1] Mark L. Tuft, Techno Ethics: Practicing Law in Harm’s Way, 23 GP Solo Disaster & Recovery (2006), http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/2006_dec_technoethics.html (last visited Mar. 4, 2016). On March 5, 2016 a search across both Lexis Advanced and Westlaw Next produced no cases or situations where lawyers faced disciplinary or civil liability for their lack of preparation for a disaster.

[2] Id.

[3] Id.

[4] Carol M. Langford, The Ethical Duties of Disaster Preparation, The Cal. B. J. (Feb. 2006), http://archive.calbar.ca.gov/Archive.aspx?articleId=73830&categoryId=73746&month=2&year=2006 (last visited Mar. 4, 2016).