Login | November 13, 2019

The legal ethics of disaster recovery

RICHARD WEINER
Technology for Lawyers

Published: October 25, 2019

Disaster recovery planning is a pain. Back up everything. Have off-site servers. Make communications and financial plans in case of a disaster.

We’ve discussed it a few times in this column through the years, but I always get the feeling that most lawyers file it under “yeah, I need to do that,” and that’s about as far as it goes.

Well, here is another reason to disaster plan: Good old legal ethics, as pointed out in an article on the website Solo Practice University.

The primary ABA ethics opinion on this topic is Formal Ethics Opinion 482, released about a year ago.

That opinion states, in part: “Lawyers must be prepared to deal with disasters…. (They must) protect (clients’ and other third parties’) documents, funds, and other property….” By doing so, the Opinion states, the lawyer who prepares for fire, earthquake, break-ins and thefts, hacks, or other interruptions to the business will avoid violating a host of other ethics considerations.

What other ethics considerations may be violated if the attorney is not disaster-prepared?

Well, Rule 1.1, comment 8 for starters—the one that states that a lawyer must keep abreast of all relevant technology. This is the rule/ comment that made “legal technology” a thing. This means not only understanding the impact of a disaster on the office’s technology, but also the use of tech to recover from the disaster.

Rule 1.15 covers safekeeping client property, and requires lawyers to protect and, if necessary, restore that property if something happens to it. Like, I don’t know, a disaster or something.

Next up is Rule 1.3, which states that a lawyer must act with “reasonable diligence” in serving a client. Disaster prep is reasonable diligence; end of argument.

Rule 1.4, Communication, states that a lawyer must keep clients updated on their case status, which now has to include disaster planning. It also requires that clients or potential clients be given sufficient information to allow them to make an intelligent decision about whether or not to employ or continue to employ an attorney. Any tech-savvy client is going to ask about disaster planning and act accordingly.

There are also a couple of other ethics rules that can be construed to cover disaster recovery but you get the point. Which is that the point is that you need to get your disaster recovery plans in place right now.


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