Bracing for the Unexpected: Disaster Preparedness for Lawyers
March 30, 2020
Natural disaster or illness can strike anyone at any time. A global pandemic, earthquake, flood, fire, or any unexpected illness can impact us and how we manage our firms. Small firm lawyers are especially vulnerable as they are more likely to be significantly affected and have difficulty managing crises alone. But encountering a disaster does not exempt lawyers from their ethical obligations to clients. So, what guidance do the rules provide about preparing for the unexpected?
According to D.C. Rule 1.3 Comment 5, a sole practitioner should designate a backup attorney. The designee will need to “review client files” and “notify clients,” as well as “determine whether there is a need for immediate protective action.”¹ If a lawyer fails to establish a backup arrangement, they risk intervention from the Board on Professional Responsibility. It is therefore imperative that every lawyer has a formal backup plan for their firm.
Here are four things to consider as you develop your plan.
1. Designate a Backup Attorney. For small firm lawyers, the backup attorney should be another lawyer in your office who is also licensed in your jurisdiction. This is the most convenient arrangement because they know you, both personally and professionally, and may already have some insight about how you manage your cases. For the solo attorney, finding a backup lawyer can be more challenging. You may have to network and consider fellow practitioners licensed in the same jurisdiction as you for this role. Keep in mind, if you ask a solo colleague to do this for you, they may ask the same of you in return.
Establish a formal written agreement with your backup attorney and provide your staff a written plan that identifies the attorney as your backup and gives them clear procedures and instructions on what they need to do in the event you are unavailable. The D.C. Bar Practice Management Advisory Service can provide you with a template agreement to assist you with this process.
2. Be Specific. Your designee should know exactly what you need them to do if you become incapacitated or unavailable. Your agreement should address the issue of confidentiality of your client files and how to handle any potential conflicts. You should also disclose the existence of this backup arrangement with your clients in their fee agreement and explain to them what duties your backup will perform. For example, “the backup attorney may access your file limited to information necessary to: apprise you of the situation, file necessary protective motions on your behalf, and/or provide notice to the court.” Remember, D.C. lawyers are bound by Rules 1.6 and 8.4, which address confidentiality and integrity.² Entering into a formal written agreement establishes that the designated lawyer is standing in for you in a backup capacity, and therefore they must comply with those rules.
The protocols you establish do not require that you give your backup full knowledge of client matters. A backup attorney can be limited to tasks you see fit, such as providing notice to clients of your incapacity using a contacts list without access to any specifics related to the clients’ matter. You must use your judgment when deciding how much or how little access to provide, especially when potential conflicts are involved.
A backup for a transactional law practice will require different instructions than a backup attorney for a litigation practice. For example, if you litigate you may wish to instruct your backup to access your calendar to determine any deadlines or upcoming court appearances. If your matters require taking “protective action,” prepared sample template motions can make it less arduous for your backup attorney.
You also have financial obligations to your clients. If you are taking advanced fees in your practice, you may also need to provide the backup attorney with instructions on how to handle your IOLTA account or how to contact your accountant to ensure the proper distribution and collection of client funds. Test-driving the backup plan regularly and reviewing clients can help to avoid conflicts and expose any weaknesses in the plan.
3. Make Information Accessible. Storing your files electronically using services like Office 365 with OneDrive or Google G-Suite with Google Drive will enable your backup attorney to log in and access your files remotely if needed. Clio and MyCase are cloud-based case management programs that provide easy access to your files using the internet. If you are using cloud services, your backup lawyer will need to know the specific software you are using and the accompanying log-in credentials. They may also need access to passwords for e-filing. Determine the best way to provide these codes so that your backup only uses or accesses them when necessary. One method is to put your important passwords in a sealed envelope held in a safe, with instructions that it can only be opened during an emergency. Consider any other barriers that may come up when your backup has to access your data and determine how to best make that information accessible.
4. Prepare Your Staff. If you have staff who typically work onsite, they should be trained on the protocols to follow in the event of a disaster. Have written policies and procedures in place for your staff, including specific protocols on how employees should work from another location and how they can access information. Using cloud services can help, providing you and your staff remote access to your files and programs and allowing you to continue to collaborate and work offsite, assuming all have internet access. Your staff should also know how to reach your insurance carrier, the person you have designated as your backup attorney, and your personal emergency contact.For more information on how to plan for disaster and create your law office backup plan, email D.C. Bar practice management advisors Rochelle Washington or Dan Mills, or call 202-780-2762 or 202-780-2764. Information and guidance provided by the D.C. Bar Practice Management Advisory Service is free and confidential for D.C. Bar members.
¹ See D.C. Rule 1.3 Comment 5. “To prevent neglect of client matters in the event that a sole practitioner ceases to practice law, each sole practitioner should prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client that the lawyer is no longer engaged in the practice of law, and determine whether there is a need for immediate protective action. See D.C. App. R. XI, § 15(a) (appointment of counsel by District of Columbia Court of Appeals, on motion of Board on Professional Responsibility, where an attorney dies, disappears, or is suspended for incapacity or disability and no partner, associate or other responsible attorney is capable of conducting the attorney’s affairs).”
² See D.C. Rules 1.6 and 8.4(c).