The ethical duties of disaster preparation

By Carol M. Langford

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When most lawyers think about a natural disaster occurring, such as an earthquake, hurricane or a flood, they probably do not think about the implications of that disaster upon their practice.

After the 1989 Loma Prieta earthquake, most people’s thoughts were with the hundreds of people left homeless and injured. San Francisco lawyers were lucky, however, that the quake did not have a large impact in the financial district, where most legal offices are located. The same was true of the Berkeley fire.

Not all disasters, however, occur on such a large scale or are natural.

A variety of disasters

“We tend to think of fire as a disaster. Do we, however, think of fire as a disaster if the irate husband of your client throws a Molotov cocktail into your files, as happened to one San Francisco lawyer? To that lawyer, there is a disaster. Is it a disaster if your office is adjacent to a hotel and a kitchen fire spreads to that part of the building occupied by your office? Is it a disaster if fire destroys a transformer in the basement of your high-rise building, causing PCBs to be spread throughout the building — so that the building officials deny everyone access to the building for a month?

“Overnight the normal methods of operation stop and the lawyer is denied access to files, accounting records, billing information, client phone numbers and pending matters that have deadlines the lawyer cannot remember. That is disaster to the lawyer.” When Disaster Strikes: How to Handle Law Office Emergencies (Practice Management Series, 1988).

Other potential disasters to a legal practice include theft, labor union unrest or a long-term disability. Not to reasonably anticipate and be prepared to service clients in the wake of a disaster is arguably a failure to act competently, in this author’s opinion.

Most lawyers in California know that they should have an extra supply of water on hand and a first aid kit to protect themselves and others in the event of an earthquake or other calamity. What most lawyers do not comprehend, however, is that a lawyer’s ethical obligation to be a competent advocate for her client does not end in the wake of the destruction of her practice due to a natural disaster.

There are no rules or cases that specifically discuss the standards applied to a lawyer whose practice has been destroyed. Therefore, it can be argued that she is still subject to the rules regarding competence after a disaster. What action should an attorney take to protect client interests after a disaster has impaired or halted that attorney’s ability to practice?

Protecting your clients

Given the variety of potential disaster situations and the absence of specific guidelines, it seems reasonable that the extent of an attorney’s obligation to foresee and protect client property from disaster should be governed by an attorney’s overall duty to act in the best interest of his or her client in the particular matter at issue. (See, e.g. Day v. Rosenthal (1985) 170 Cal. App.3d 1125, 1143 [217 Cal. Rptr. 89]; Betts v. Allstate Ins. Co. (1984) 154 Cal. App.3d 688, 715 [201 Cal.Rptr. 528].)

In addition, rule 4-100(B)(2) of the California Rules of Professional Conduct provides that: “(B) A member shall: (2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.” Rule 4-100 and case law do not expressly define, however, the scope of an attorney’s obligation to protect and preserve client property from a disaster. Client property can include the client’s files, documents and tangible evidence such as a gun.

 Case law does address civil responsibilities for the loss of property held for another person pursuant to the law of bailment. (Civil Code §1813, et seq.; see Gardner v. Downtown Porsche Audi (1986) 180 Cal.App.3d 713 [225 Cal. Rptr 757]; Gebert v. Yank (1985) 172 Cal.App.3d 544 [218 Cal.Rptr. 585]; Potter v. Los Angeles Turf Club (1940) 40 Cal.App. 2d Supp. 840, 841.) Those cases make clear the obligation to protect property entrusted to a lawyer and indicate that the degree of care depends on whether the bailee is compensated. Since an attorney is normally compensated, she probably has a higher duty of care.

An attorney should thus evaluate the importance of the property to the client and the client’s case and the likelihood of harm to that property. Fires occur from a variety of causes and are an ever-present risk. Under the office lease, who is responsible for obtaining fire insurance? And does it cover client property?

An attorney should check whether earthquake insurance has been obtained; this must be offered by law but may be declined. Scientists have long predicted that an earthquake measuring 7.0 or higher on the Richter scale is likely to occur in Los Angeles or San Francisco in the near future.

Other relevant inquiries include the value of the property, both intrinsically and to the case, the likelihood of hardship to the client if the property is destroyed and the ability of the attorney and/or client to replace the property if it were destroyed. In an immigration law practice, for example, it could be difficult, if not impossible, to replace the documents taken by a refugee client from a country at war.

Similarly, there will never be another set of exculpating evidence for a criminal defendant. Therefore, while it is natural to want to deny the possibility of becoming a disaster victim, an attorney should:

• Have property insurance covering client property. If you are unsure whether your policy provides coverage, call your carrier now before it’s too late. Make sure that your policy provides coverage for not just your desk, chair and computer, but also for lost billings, valuable client property and costs to reconstruct files and hire temporary personnel to aid in reconstruction efforts.
• Maintain off-site a list of client names, work and home addresses and phone numbers.
• Maintain off-site a list of cases including case name, docket number, court, judge and opposing counsel.
• Maintain off-site a calendar for each case.
• Maintain off-site accounting records and billing information.
• Back up computerized documents with hard copies or floppy disks. Keep a set of floppies or other tape media off-site. For small firms and solos, if you can afford to, purchase an extra computer and install it in your home for emergency backup.
• Keep an inventory of client property and your valuable office furnishings.
• Keep important client property in a locked, watertight and fireproof safe or evidence locker.
• Keep a copy of important contract documents off-site such as your lease, health insurance documents, insurance policies and agreements with service providers.

The State Bar of California and the Bar Association of San Francisco Volunteer Legal Services Program have published a guide entitled Disaster Legal Services, a Guide for the Private Bar that addresses how to prepare the home and office for a disaster. In addition, the Section of Economics of Law Practice of the American Bar Association has prepared an article entitled When Disaster Strikes: How to Handle Office Emergencies (Practice Management Series, 1988).

While case law does not discuss the steps an attorney must take in order to protect the rights of a client after a disaster has occurred, Rule 3-110 of the California Rules of Professional Conduct forbids a lawyer from intentionally or “with reckless disregard” failing to perform legal services competently. It might be plausibly argued, therefore, that an attorney is in violation of Rule 3-110 if he or she does not take prudent steps prior to or after a disaster so that the attorney is able to render competent services to clients.

In order to avoid being in violation of Rule 3-110 after a disaster, an attorney should immediately contact clients, counsel and the courts in each case to advise them of the emergency and arrange for copies of destroyed documents. The attorney should then attempt to reconstruct the files and firm records and obtain extensions of response time in pending matters.

Rule 3-700 of the California Rules of Professional Conduct requires withdrawal from a matter where an attorney should know that continued representation would result in a violation of the rules.

Accordingly, an attorney or firm overwhelmed by the tasks involved in rebuilding his or her practice may want to seek help in notifying clients of their right to seek other counsel by associating counsel or transferring as much of the file as can be reconstructed to new counsel and working with new counsel to preserve the client’s rights, subject to the provisions of Rule 2-200 of the California Rules of Professional Conduct governing financial arrangements among lawyers and the necessity of obtaining the client’s written consent.

Ultimately, the state court can assume jurisdiction over the law practice of an attorney who, for infirmity or other cause, becomes incapable of protecting his or her client’s interests where no other active member of the State Bar, with the consent of the client, has agreed to assume responsibility. (See Business and Professions Code §6190, et. seq.)

Prior to writing this article, I took an informal poll of large, medium and small firms and solo practitioners to determine their preparedness for a disaster. In a state plagued by earthquakes, fires, droughts, floods and even medflies, the results were surprising. Most medium and small firms had no idea about the extent of their insurance coverage for a disaster. Solos tended to be more familiar with their coverage, but few kept client and case rosters off-site. As expected, large firms had put the most thought and resources into disaster preparedness.

Don’t fail to prepare yourself for the inevitable. Even a boy scout knows it is important to be prepared.

• Carol Langford is a partner at Langford & Taylor in Walnut Creek, specializing in ethics and attorney conduct. She is past chair of the State Bar’s Committee on Professional Responsibility and Conduct.

Reprinted courtesy of The Bottom Line, the official publication of the State Bar’s Law Practice Management and Technology Section.