With hurricane season in full swing in the United States and climate scientists predicting more extreme weather in the future, the American Bar Association on Wednesday issued guidance on the ethical duties for lawyers whose practices are affected by natural disasters.
The ABA’s standing committee on ethics and professional responsibility published a formal ethics opinion related to disasters such as hurricanes, tornadoes, flooding and fires. The bar association’s opinion seeks to remind lawyers of the specific ethical obligations—including those related to protecting client information and attorney advertising—that they should keep in mind when severe weather wreaks havoc in their area.
The ABA noted that among other issues, extreme weather can knock out power for extended periods of time and, in turn, could affect a lawyer’s ability to be in contact with clients and banks that may be holding client or third-party funds in an attorney trust account.
“Lawyers have an ethical obligation to implement reasonable measures to safeguard property and funds they hold for clients or third parties, prepare for business interruption, and keep clients informed about how to contact the lawyers (or their successor counsel),” the ABA wrote in the ethics opinion.
The guidance isn’t binding, but state bars often look to the ABA’s model ethics rules and opinions when determining their own ethics rules and how they should be applied. Only the states of California, Louisiana and New York have issued ethics opinions dealing with disasters, according to the ABA.
Although the ABA opinion doesn’t appear to be tied to any specific event, its release on Wednesday comes after an extended period of wildfires in the western U.S. and on the heels of Hurricane Florence’s battering of the Carolinas, a storm that impacted law firms along with other residents in the region. Law firms in Texas were similarly affected in 2017 when Hurricane Harvey caused widespread flooding and damage in Houston and other parts of that state.
Ahead of Florence, some law firms took steps to both evacuate their staff in areas that were likely to be hit hard by the storm, and to safeguard client data and their own technology, ALM’s Legal Tech News reported last week. Those types of protections, as well as communication with clients about lost documents, are a key focus of the ABA’s ethics opinion.
Specifically, if a lawyer sees her or his files destroyed in a natural disaster, their ethical responsibilities differ depending on the “intrinsic value” of the document that’s lost, the ABA wrote. Original copies of wills or property deeds would qualify as documents with intrinsic value; if those kinds of documents are destroyed and there’s no electronic backup, lawyers have a duty to notify both current and former clients and to attempt to reconstruct the documents afterward.
“To prevent the loss of files and other important records, including client files and trust account records, lawyers should maintain an electronic copy of important documents in an off-site location that is updated regularly,” the ABA wrote. “Lawyers may also store files ‘in the cloud’ if ethics obligations regarding confidentiality and control of and access to information are met.”
Another key focus of the ABA’s ethics opinion relates to lawyers who seek to represent victims in the wake of a natural disaster. As demonstrated in the aftermath of Hurricane Harvey, post-disaster lawsuits can result in fierce competition among lawyers. The ABA stressed that lawyers must pay close attention to the applicable attorney advertising and solicitation rules if they’re trying to secure disaster victims as paying clients.
“Lawyers may want to offer legal services to persons affected by a disaster. The existence of a disaster, however, does not excuse compliance with lawyer advertising and solicitation rules,” the ABA wrote. The opinion went on to say that lawyers are generally prohibited from engaging in face-to-face solicitations where the prospective client doesn’t have ample time to reflect and the lawyer is seeking a financial gain.
The solicitation rules apply differently, however, if lawyers are offering pro bono services to disaster victims, something that also happened after Harvey. The ethics opinion said lawyers are allowed to solicit potential pro bono clients in person, because in that situation, “the lawyer’s motive does not involve pecuniary gain.”