The wildfires that have decimated portions of Los Angeles in recent weeks are just the latest in a growing number of natural disasters that have plagued the United States this decade. During the last five years, weather and climate-related disasters causing more than a billion dollars in damage have occurred at an average clip of nearly twice per month—a 75 percent increase over the 2010s, according to data collected by the National Centers for Environmental Information.

Like any business, law firms are not immune from the financial and operational disruptions caused by storms, fires, and other natural disasters. Unlike other businesses, however, law firms have ethical obligations they must consider as they formulate their responses to a severe weather or climate event.

As one academic study written after Hurricane Katrina devastated New Orleans put it, “Although…most jurisdictions do not specifically address disaster situations, lawyers must remain mindful that the rules of professional conduct are not all-inclusive, and more telling, they offer no exceptions for lawyers faced with natural disasters or any other specific type of harm.” 

Lawyers may face questions about how to contend with records that have been compromised or destroyed and when to communicate with their clients about potential breaches in confidentiality or delays in service. Given the grim prospect of escalating weather and climate-related disasters, let’s consider a few of the key ethical issues law firms might consider. 

Recovering Lost Records

The American Bar Association, in a 2017 article, noted that under its model rules, lawyers are obligated “to provide competent and diligent representation.” If a firm realizes that its files have been destroyed, it “must make every effort to reconstruct the file from any available source…In the event that the lawyer is unable to reconstruct the file, he must notify the client.”

A New York City Bar opinion from 2015 also notes that “when client files are destroyed in an accident or disaster, an attorney may have an ethical obligation to notify current and former clients. Where the destruction of a client file compromises the lawyer’s ability to provide competent and diligent representation to the client, the lawyer must take reasonable steps to reconstruct the file sufficiently…The lawyer must also notify the current or former client if an accident or disaster compromises the security of confidential information.”

Several years ago, in the wake of several devastating hurricanes, The Florida Bar’s Practice Resource Center created a helpful disaster resource checklist for law firms after a disaster strikes. Along with advice about insurance claims, helping and supporting employees, and maintaining the firm’s financial health, the list included practical guidance about recovering client records, including:

• If data is stored locally on the firm’s computers, immediately seek professional assistance to recover and repair your systems. The firm should make it clear to IT technicians that the top priority is recovering critical data, not the equipment itself.

• Paper records should be gathered, assessed for damage, sorted, and prioritized for restoration. Water-damaged paper “will begin to deteriorate within two to three hours; mold, fungal, and bacterial growth will occur within 24 hours,” the Florida Bar noted.

• If records must be destroyed or removed from the firm for restoration, the firm should track each record by client/matter name and number, items destroyed, inclusive dates, and the reason the record was destroyed.

• Lost paper records and client documents should be replaced. Clients, the courts, opposing counsel, administrative agencies, and the firm’s accounting and payroll services may serve as sources.

Confidentiality and Communications

A disaster may also leave client records exposed to anyone with access to premises. For example, confidential paperwork related to a case may be scattered about a wrecked office and in plain view. The New York City Bar opinion cited the case of a fire that resulted in a potential breach of confidentiality, and a bar committee concluded that an attorney had an obligation to notify clients of the issue.

The ABA has cited the NYC Bar opinion as a useful one because it was issued in the wake of a 2015 fire at a Brooklyn warehouse where law firm client files were stored, as well as 2013’s Hurricane Sandy and the September 11, 2001, terrorist attacks, which resulted in the destruction of several law firms’ offices and client documents. 

In the opinion, the NYC Bar also discussed the mechanics of communicating with clients post-disaster. It identified three categories of typical client files: 1) Those with items like wills or deeds of intrinsic value that affect property rights; 2) Those with documents that might help in defending a matter where the statute of limitations had yet to expire; 3) Those with matters of negligible significance that would serve no useful purposes in serving the client’s current needs. 

The Bar said lawyers would certainly have a duty to communicate with clients whose files included category one documents. They would also need to contact clients if documents in category two were part of an active matter. (If matters involving category two documents were closed, the lawyer would need to make a judgment call.) Documents in category three would generally be exempt from communication requirements.

What Can You Do to Prepare?

The post-Katrina academic study, authored in 2009 by Sandi Varnado and Dane Ciolino of the Loyola University New Orleans College of Law, suggests that lawyers may have an ethical duty to prepare for a disaster and “a failure to do so may, in some circumstances, violate some jurisdictions’ rules of professional conduct.” 

The State Bar of California, in a recent post on the regulatory requirements for attorneys affected by the L.A. wildfires, provided several suggestions for lawyers and firms looking to prepare themselves for a disaster. They should, according to the Bar:

• Ensure their property insurance covers client property and the costs of hiring temporary help to reconstruct files and billing systems.
• Create a list of client names and contact information to be held off-site.
• Create a list of ongoing matters, including identifying information, such as a docket number, court, judge, and opposing counsel. This list, along with a calendar for each matter, should be maintained off-site.
• Store a set of backup computer files off-site.
• Maintain an inventory of client property, as well as valuable furnishings and other property from the firm’s offices.
• Make certain the firm houses accounting records and billing information off site.
• Store client property in a locked, watertight and fireproof safe or evidence locker.

Preparing a law firm for a natural disaster is a wise business move—and critically important to upholding your firm’s ethical responsibilities to protect your clients and their interests.

Do you have questions, feedback, or topics you would like The Edge to cover? Send a note to david@good2bsocial.com.