By Shalette N. Mitchell, Lone Star Legal Aid
Katrina, Rita, Ike, and Harvey are a few of the infamous hurricanes that have caused death, damage, and destruction in Texas. In addition to natural disasters, other disruptions such as electrical issues, plumbing failures, and hazardous waste can have disastrous effects. Unfortunately, intentional acts of violence are also on the upswing. There are no “disaster free” zones.
So whether a disaster is natural or manmade, people should prepare for all sorts of disruptions. People typically think of disaster preparedness for their family members, but attorneys and law firms should also make a plan.
What is a Lawyer’s Duty to Prepare for a Disaster?
The Texas Disciplinary Rules of Professional Conduct (hereinafter “the Rules”) define proper conduct for purposes of professional discipline. Notably, the Rules require a lawyer to represent their client competently and diligently, safeguard their client’s property, and maintain client confidentiality and communications. However, the Rules offer very limited guidance about a lawyer’s duty for disaster preparedness. A slight inference about a lawyer’s need for disaster preparedness can be drawn from Comment 1 to Rule 1.14, Safekeeping Property. The comment provides that “[a] lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances.”
Even though the Rules do not thoroughly specify disaster preparedness, it is a reasonable belief that lawyers have a duty to prepare for a disaster. The occurrence of a disaster does not waive or excuse a lawyer from their important obligations.
How Can a Lawyer or Law Firm Prepare for Disasters?
No lawyer or law firm can completely escape the risk of disasters or disruptions affecting their practice. But lawyers and law firms that adequately prepare can likely mitigate adverse effects following a disaster. Disaster preparedness can be achieved by: 1) brainstorming and resolving business disruption scenarios, 2) writing a disaster plan, and 3) updating and testing the disaster plan.
Brainstorm and Resolve Business Disruption Scenarios
A person or people tasked with disaster planning should make two lists: one marked “Scenario” and the other marked “Procedures.” Then, the planner should play the “what if” game where they imagine all possible scenarios of events that could negatively affect the law office. These disruption scenarios could include long-term power outage, workplace violence at or near your office, major storm damage, no heating or air conditioning, or severe weather conditions.
For each scenario, the planner should figure out a way to resolve or at least alleviate the effect of each scenario. So while resolving these scenarios, the planner will likely identify “procedures” or things that should be done to resume normal business operations. The planner will also likely identify supplies that are necessary to implement those procedures.
For example, the planner identifies an office fire as a disruptive scenario. On the “procedures” notepad, the planner may determine that resolution of the problem includes calling 911 and evacuating the office or using the fire extinguisher to put out the fire. The planner’s list of supplies may include an operable fire extinguisher, emergency exit signs, fire sprinkler systems, or working telephones. The planner should continue to do this until all conceivable disruptive scenarios are captured. The planner should make detailed notes and consult with coworkers to ensure that all bases are covered. By doing these actions, a planner will likely create workarounds or backup plans in the event that the planner’s first response does not resolve the scenario.
Write a Disaster Plan that Includes Certain Key Components
After the planner determines the processes and supplies that are necessary to resolve the disaster scenarios, they should write a plan for how the attorney and the law firm will respond when disasters or disruptions occur. The disaster plan does not have to be too long or complex, but should include the basics like:
1) identifying the “disaster coordinator” who is in charge of maintaining and implementing the disaster plan;
2) specifying authority for the disaster coordinator;
3) determining where the firm will office if the current workplace becomes unusable or uninhabitable;
4) providing how the firm plans on communicating with clients, courts, and opposing counsel; and
5) identifying and delegating essential business tasks to certain employees.
Other important components of a disaster plan include:
- specific events that trigger the activation of the plan;
- emergency instructions for employees;
- processes to assess the status and location of each employee; and
- categories of disruptions, such as “minor emergency,” “major emergency,” and “disaster.”
Update and Test the Disaster Plan
The mere existence of a written disaster plan is not enough. For a disaster plan to be most effective, it must be updated and tested on a regular basis. Certain events like office relocation, employee changes, or changes in contact information for employees or vendors require an update to the disaster plan. At a minimum, the disaster coordinator should update the plan on a quarterly basis.
Likewise, a disaster plan must be tested to assess its functionality and effectiveness. On an annual basis, the disaster coordinator and team should meet to test the disaster plan. The plan can be tested by running through scenarios with the team, email exercises, or test drills.
A disaster can affect any lawyer or law firm. Attorneys have a duty to safeguard their client and their client’s property from the impacts of a disaster. A simple plan that is well thought-out, communicated, tested and shared can make a huge difference when disaster strikes.