The ABA Issues Formal Ethics Opinion on Disasters

The ABA had released ABA Formal Ethics Opinion 482 on September 19th. In the opinion, the Standing Committee on Ethics and Professional Responsibility clarifies the ethical obligations attorneys face when disaster strikes including the following:

If a disaster causes the loss of client files, lawyers must also consider their ethical obligations under Rule 1.15, which requires lawyers to safeguard client property. For current clients, lawyers can attempt first to reconstruct files by obtaining documents from other sources. If they cannot, lawyers must notify the clients of the loss of files or property. To prevent such losses, “lawyers should maintain an electronic copy of important documents in an off-site location that is updated regularly.”

A disaster could impact financial institutions and, therefore, client funds. Thus, lawyers “must take reasonable steps in the event of a disaster to ensure access to funds the lawyer is holding in trust.” It struck me that this could be highly problematic in some circumstances, but of course it is wise to do whatever one can.

A disaster may cause an attorney to have to withdraw from a client’s case under Rule 1.16. “In determining whether withdrawal is required, lawyers must assess whether the client needs immediate legal services that the lawyer will be unable to timely provide,” the opinion notes.

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