Disaster can strike at any time. Whether it is a natural disaster like a fire or hurricane, a cyberattack, or a global pandemic, disasters can leave a law firm unprepared. Lawyers have an ethical obligation to plan and prepare for disasters of all kinds and ensure that they protect client interests. The responsibility to protect client confidentiality, maintain communication, and preserve legal records does not cease in times of crisis.
Law firms should have in place a comprehensive disaster plan to ensure that they take reasonable steps to provide continuity of service and fulfill their obligations to their clients. An effective disaster plan should outline the firm’s emergency contacts, designate a disaster response team and their responsibilities, provide details on electronic file storage and backup, identify alternative workspace arrangements if necessary, and include an inventory of client files, firm software, and key vendors.
This article explores the ethical obligation to prepare for disaster and provides practical steps to ensure attorneys remain compliant with their professional duties in the face of unforeseeable events.
ETHICAL OBLIGATIONS IN DISASTER PREPAREDNESS
Immediately after a disaster, the most important thing is human life. Lawyers should first ensure that they are physically free from the threat of harm, their employees are supported, and their clients are safe. Then, the focus can shift to providing continuity of service to clients.
Competence and diligence
Lawyers must take reasonable steps to ensure their legal services can continue even in the event of disaster as part of the duties of competence and diligence owed to clients under Michigan Rule of Procedural Conduct 1.1 and 1.3. MRPC 1.1 also requires lawyers to maintain technological competence,1 which includes understanding the tools and systems necessary for remote work, secure communication, and document management in case of disaster. Lawyers must develop and maintain sufficient technological competency to ensure they can meet their ethical obligations after a disaster — even if the disaster renders computers and software unusable — and have a plan in place for restoring necessary software and managing compliance with electronic filing deadlines.
Communicating with clients
Under MRPC 1.4, lawyers must take steps to keep clients reasonably informed about the status of their legal matters so they have the ability to make informed decisions regarding their representation. There is no exception in the case of disaster.
Lawyers must take reasonable steps to communicate with clients after any disaster and promptly notify clients of any circumstances that might affect the handling of their legal matter. Immediately after any disaster, lawyers should assess all possible methods of communicating with clients. It is best practice to maintain a list of all current clients and their contact information or have the ability to create one on short notice. Lawyers should also ensure they have alternative means of communication with clients in case cyberattacks disrupt the usual channels (e.g., office phones, email) through outages or natural disasters down power lines.
When first contacting clients following a disaster, lawyers should prepare to tell them whether they will continue representing them or whether they will need to withdraw from representation. Lawyers must plan how to permanently protect certain client property with intrinsic value (original wills, deeds, etc.) and how to notify clients in case that property is destroyed.2 Thus, lawyers should plan to notify clients in case natural disasters such as floods or fires cause document loss. Further, as stated in Ethics Opinion RI-109:
Where client files in a lawyer’s custody are damaged by fire, flood, or other circumstance beyond the control of the lawyer, and the retention period communicated to the client has not yet expired, or where the lawyer has failed to establish a record retention plan or has failed to communicate the plan to the client, the lawyer should make reasonable efforts to notify those clients affected.3
What is considered a “reasonable effort” may vary by case but likely requires “notice to the client by regular and certified mail, addressed to the client’s last known address.”4
Confidentiality
Under MRPC 1.6, lawyers must protect client confidentiality even in the event of a disaster. This obligation includes safeguarding physical and digital files from unauthorized access. Law firms should implement secure data backup systems and cybersecurity measures to protect client information from disclosure. Encrypted cloud storage and secure off-site backup ensure client information remains both accessible and secure. See our Cybersecurity FAQs at michbar.org/opinions/ethics/cybersecurityFAQs for more information.
Property safekeeping
In the event of natural disasters like floods, fires, or hurricanes, property, including client files, may be lost or destroyed. Client files kept only in their physical format or electronically on a local computer risk being lost forever.
Lawyers have a duty to safeguard client funds and property under MRPC 1.15, which includes planning for scenarios where disaster may compromise access to trust accounts or physical property. If lawyers regularly maintain client property with intrinsic value, they must consider whether a water- and fireproof-safe or file cabinet is appropriate.5 Under MRPC 1.15, lawyers also have a duty to notify clients of loss of property with intrinsic value.6
Law firms should ensure that banks or other financial institutions they work with have procedures in place to protect client funds and allow access to them in an emergency. MRPC 1.15 requires lawyers to maintain detailed accounting of client and third-party funds and property held by the lawyer for five years after the end of representation. If a disaster causes destruction or loss of records, the firm should try to reconstruct those records from other sources to
fulfill this ethical obligation.7 It is best practice to maintain an electronic copy of such documents in cloud storage to prevent the loss of files and important records.
Supervision and delegation
Lawyers with supervisory responsibilities must ensure that others in their firm are aware of and prepared to implement the disaster plan.8 Fulfilling this ethical obligation requires lawyers in supervisory roles to implement effective training protocols and maintain a clear delegation of responsibilities in an emergency.
Creating a disaster plan
When creating your disaster plan, consider including the following information:
- An emergency contact who will oversee implementation of the disaster plan.
- A list of team members and their roles in an emergency.
- Clients' emergency contact information.
- Directions for accessing client files. Identify the person responsible for their backup storage and maintenance. If the files are stored in cloud-based platforms, the disaster plan should include the account name and password.
- An alternative workplace or plan for remote work. Identify a physical location that the firm may use in case the typical office location is unusable. Alternatively, have remote work procedures in place.9
- An inventory of firm software. Include a list of account numbers and login information. The firm must be prepared to reload the software on alternative computers to serve clients.
- A list of critical services and vendors. Again, include a list of account numbers and login information for services the firm regularly uses.
- A plan for paying employees if the disaster lasts for an extended period of time.
Succession planning
For solo or small-firm practitioners, an unexpected illness or event can disrupt your practice and potentially harm your clients. Safeguard both your clients’ interests and your own by developing a plan that ensures the continuity of business operations as previously discussed. Further, as a part of the license renewal process, Rule 2110 requires all active private practice attorneys in Michigan to name a person with knowledge of their practice and designate an interim administrator or enroll in the State Bar of Michigan Interim Administrator Program. The mandatory requirements of Rule 21 must be completed, including designating an interim administrator as the custodian for your practice in the event you become incapacitated whether you are a solo practitioner or work for a large firm.
For more information on the SBM Interim Administration Program, visit michbar.org/For-Members/Rule-21.
CONCLUSION
Preparing for disaster is not only a logistical concern for lawyers; it is also an ethical requirement. With efficient preparation and planning and the use of available technology, lawyers can reduce the risk of violating the Michigan Rules of Professional Conduct following a disaster. By maintaining a thorough disaster plan to safeguard client interests, lawyers protect themselves as well. Preparing for disaster means equipping oneself to uphold the principles of confidentiality, competence, and diligence regardless of the challenges that arise.