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Ethics Crash Course in the Wake of Hurricane Sandy
Law Technology News
"By the time Hurricane Sandy made landfall along the New Jersey coastline on the evening of October 29, 2012, it already was disrupting home and business activities in the most densely populated section of the United States for a full day. As the storm moved up the Atlantic seaboard along its predicted track, governmental officials and business leaders cancelled operations, mandated evacuations, and implemented existing disaster response plans, helping to reduce both human and property loss. Even so, the storm itself, combined with the unfortunate coincidence of extra-high tides from the full moon yielded record- and infrastructure-breaking floods and wind damage.
While Sandy was devastating, its aftermath proved even more so especially for businesses. Although everyone in the region was affected by Sandy, attorneys dealing with storm-related issues were faced not only with the challenges shared by all, but also with the obligations placed upon them by state legal ethics rules. Some ethics issues may not be obvious, particularly with regard to technology, so it's a good time to refresh our recollections.
Client confidentiality: The first potential issue is the risk of breaches of client confidentiality. Sandys rain and wind destroyed numerous homes and offices, and flooded many others. Many computers, file servers, cellphones, tablets, and other portable data devices were damaged or completely ruined. But lawyers must think before they throw them away because those devices may contain significant amounts of client information, such as documents, e-mails, etc. Unless properly (and completely) deleted, these data can be retrieved by anyone who obtains the devices and gains access to their hard drives or other storage. Additionally, many displaced residents and workers relocated to temporary facilities. In all the confusion, lawyers using borrowed equipment might inadvertently create, access, and leave client data on those machines once the crisis has passed. Lesson learned: Always be sure that any confidential information is properly erased to prevent any access to data. (This includes when you upgrade equipment.)
Recordkeeping obligations: Another potential ethics hazard is that protocols and routines are easily undermined by disruptive storms and their aftermath. Attorneys who maintain required financial and documentary records in computerized form, without off-site backup, risk irretrievable loss of those records when there are electrical surges, floods, fires, and other disruptions. Where lawyers relied upon third parties (such as accountants) to maintain those records, the retention obligation remains even if the third parties systems were affected or destroyed. Lesson learned: Be sure you have appropriate back up services, that are not in the same general geographic area.
Protect Your Client: Attorneys must also ensure that no matter what their personal circumstances may be, they always diligently represent their clients. The combination of weather, electrical, telecommunication, and transportation disruptions from Sandy meant that many attorneys could not get to their offices and, even if they could, key work files were inaccessible on unpowered computers or unreachable cloud servers. For litigators, some courts were shut, but others reopened or never closed. Deadlines of all types (statutory, contractual, and court-imposed) may have continued to toll, even while calendaring systems remained off line or out of reach. Although attorneys are obligated to communicate "promptly" with clients, including both providing important information and responding to queries, sometimes that becomes impossible. After Sandy, even the cellphone network in the New York metropolitan region was down or unreliable for days, and homes and offices served by certain telecommunications providers were without service for weeks afterwards. Lesson learned: Anticipate scenarios when an entire region may be crippled, and consider creating out-of-state, reciprocal arrangements with other lawyers or firms, so that your obligations are covered even when you can't personally deliver services.
These issues are not new or unique to storm situations. Bar groups are increasingly focusing attention on the risks arising out of technology dependence. For example, in August 2012, the American Bar Association adopted its Ethics 20/20 Commissions recommendations on a variety of proposed changes to the Model Rules of Professional Conduct, including adding a revised rule 1.6(c) that would require attorneys to "make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client." The discussion about this revision makes it clear that new technologies for keeping and sharing information, such as social media and online data storage, require lawyers to take extra precautions against the greater likelihood of accidental disclosure or unauthorized access in order to remain in ethical compliance. While these new proposed rules have not yet been adopted by New York, for example, the Committee on Professional Ethics of the New York State Bar Association has itself opined that attorneys using cloud-based technologies and other online communications systems for their practices should stay abreast of technological as well as legal developments in order to remain in ethical good stead.
Lawyers who experienced the wrath of Hurricane Sandy are now dealing with its impact on their personal and professional lives. All attorneys can and should learn from the multiple technological disruptions caused by the storm as they consider appropriate risk management for the future. Beyond any obvious financial burdens, a natural or man-made disaster can generate ethical challenges that may have a longer, deeper, and more costly impact on attorneys and their livelihoods. Prudence as well as formal ethics rules require lawyers to proactively consider and address those challenges before they occur, through contingency planning, redundant backups and connectivity, emergency power systems, and security settings on both office-based and mobile devices.
"Appetite for Destruction," by Ross Todd, from the November 1, 2007 issue of Law Technology News.
Jonathan Ezor is assistant professor of law and director of the Institute for Business, Law and Technology, at the Touro College Jacob D. Fuchsberg Law Center, and of counsel to Olshan Frome Wolosky.