Business Continuity and Disaster Planning for Law Firms – Part 2: The Ethics

Learn Your State’s Ethics Rules 4In last week’s blog post, I discussed the importance of future-proofing your law firm so that it can continue operating in the midst of an unexpected crisis like the current pandemic. As I explained, in order ensure your firm’s future success and stability, it’s important to take steps to ensure business continuity no matter what unexpected challenges you may eventually face.

Of course, if your firm doesn’t already have a disaster plan in place, you may not be sure where to start. The good news is that you’re in luck. There are two ethics opinions available that will help you prioritize your future-proofing focus and get your firm on the right track.

The ethics of future proofing your law firm

The first opinion was handed down by the American Bar Association in 2018 and offers lots of great disaster-planning guidance. In Formal Opinion 482, the ABA Standing Committee on Ethics and Professional Responsibility provided advice and ethical guidance for lawyers seeking to implement a disaster plan for their law firms. The Committee explained that lawyers have an obligation to prepare for the possibility of a disaster occurring:

“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).”

According to the Committee, a big part of that preparation includes ensuring that an open line of communication with clients exists at all times. As part of this obligation, client contact information should always be readily available, even after a disaster hits. The Committee explained that one of the best ways to ensure that this happens is to store information electronically where it is easily accessible 24/7:

“One of the early steps lawyers will have to take after a disaster is determining the available methods to communicate with clients. To be able to reach clients following a disaster, lawyers should maintain, or be able to create on short notice, electronic or paper lists of current clients and their contact information. This information should be stored in a manner that is easily accessible.”

Throughout the opinion, the Committee emphasized the value – and the benefits – of online storage (aka cloud computing). Because 24/7 access to law firm files following a disaster is key, it’s important to set up your law firm in the cloud using software programs like law practice management software. Importantly, the Committee explained that exploring these options and choosing the right provider are important steps to take as part of disaster preparedness:

“(L)awyers must evaluate in advance storing files electronically so that they will have access to those files via the Internet if they have access to a working computer or smart device after a disaster. If Internet access to files is provided through a cloud service, the lawyer should (i) choose a reputable company, and (ii) take reasonable steps to ensure that the confidentiality of client information is preserved, and that the information is readily accessible to the lawyer.”

Last but not least, the Committee stressed the importance of having a well thought out disaster plan that takes advantage of the latest technological innovations, including cloud computing software. It then concluded the opinion with this advice:

“Lawyers must be prepared to deal with disasters. Foremost among a lawyer’s ethical obligations are those to existing clients, particularly in maintaining communication. Lawyers must also protect documents, funds, and other property the lawyer is holding for clients or third parties. By proper advance preparation and taking advantage of available technology during recovery efforts, lawyers will reduce the risk of violating professional obligations after a disaster.”

The ethics of remote working and communication

More recently, the Pennsylvania Bar Association provided useful guidance in April that squarely addressed the issue of how to ethically use remote technologies both during the current pandemic and in the regular course of business.

In Formal Opinion 2020-300, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility focused on the ethical duty of technology competence and the duty to protect confidential client information. The Committee emphasized that lawyers practicing in the 21st century have a continuing duty to understand and stay abreast of technological changes, and to ensure that the remote communication technologies that they use are secure and protect confidential data:

The duty of technological competence requires attorneys to not only understand the risks and benefits of technology as it relates to the specifics of their practices, such as electronic discovery. This also requires attorneys to understand the general risks and benefits of technology, including the electronic transmission of confidential and sensitive data, and cybersecurity, and to take reasonable precautions to comply with this duty.

The Committee then honed in on the ethical obligation of securing communications. The Committee adopted the analysis set forth in ABA Formal Opinion 477R, and determined that because of improved technology, unencrypted communications like email are insufficient for particularly sensitive information. The Committee explained that lawyers must assess the sensitivity of confidential communications on a case-by-case basis and, for particularly sensitive matters, use encrypted communication methods, such as secure client portals and secure videoconferencing tools.

Notably, the Committee emphasized that an important part of competency is ensuring that your firm is able to access client information and communicate securely with clients, no matter what the circumstances:

“(A) lawyer’s duty of competency extends ‘beyond protecting client information and confidentiality; it also includes a lawyer’s ability to reliably access and provide information relevant to a client’s case when needed…’ When forced to work remotely, attorneys remain obligated to take reasonable precautions so that they are able to access client data and provide information to the client or to others, such as courts or opposing counsel.”

Start planning for the future today

The bottom line: disaster can strike at anytime. Whether it’s a fire, a flood, a tornado, or any other type of natural disaster, establishing a disaster plan ahead of time is imperative. Is your firm ready? It not, there’s no better time than the present. So what are you waiting for? Give both opinions a read, take their advice to heart, and start planning today!

And don’t forget to check back next week to learn more about the short term factors you’ll need to take into consideration in order get your firm through the current pandemic, whatever it may bring. And finally, download the results from our latest survey to learn about the steps other firms are taking to get through COVID-19 and find success on the other side.

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