OSB Professional Liability Fund

Get Ready for Any Disaster

October 5, 2018
by Sheila Blackford

There is nothing like a disaster occurring someplace else to make us pause to appreciate that we are not facing a similar disaster locally. I wonder whether the lawyers in the disaster zone were ready for the devastation to their law firms in the aftermath of the hurricane. I hope so because the disasters we don’t prepare for may bring harm to our clients despite our good intentions otherwise. Now is the perfect time to ensure that we are prepared in our own locale.
           
The ABA recently released its latest opinion on disaster planning. ABA Formal Opinion 482 on Ethical Obligations Related to Disasters is worth a read. Here is the link shortened for your convenience:  https://tinyurl.com/yccraed3.  Like most ethical opinions, it is all common sense when it comes to taking care of your clients.  Sometimes common sense gets misplaced when dealing with the pressures of practicing law. Now is the time to think about your own disaster preparedness plans or lack thereof. The ABA concludes Formal Opinion 482 with the reminder that lawyers must be prepared to deal with disasters.
 
Disasters come in all shapes and sizes. We’ve all had that upsetting experience of a computer crashing before we saved the document we only partially completed. But what if the only copy of our finished document was on the laptop stolen from your car while you dashed down the street for a latte? Despite our resulting angst, these disasters are two of the innumerable variety of self-inflicted disasters. Stop and save that document you are working on with periodic regularity. How much work effort can you afford to lose? The answer will inform your decision on the frequency of saving documents in progress.  If you simply must leave your laptop or briefcase in the car, safely lock it in the trunk so that it won’t be a target of theft. That local thief needs to snatch and run so is looking for valuables in plain view.
 
But what about the disasters that happen without any action or inaction on our part? What if a nearby gas line exploded and reduced your office building to shambles. Would you be prepared? This would be a definite disaster! How could you be prepared for that?
 
Your first and foremost responsibility is to your existing clients. You have an obligation to maintain communication under Oregon RPC 1.6. If your office building is inaccessible and your client contact information is kept solely on paper or on a local computer or server, you will have a difficult time contacting those clients. It makes sense to have access to client contact information remotely.  This is especially critical for lawyers who could have their local files destroyed. If you only maintain your records at the office, you are putting yourself at high risk of losing those records in a disaster.
 
Today, most if not all lawyers recognize the wisdom of storing files electronically on the cloud so that they will have access to those files via the Internet − provided they will have access to a working computer or small phone that can access the Internet after a disaster.
 
When storing files electronically on the cloud, it is imperative that you choose a reputable company and that you then take reasonable steps to ensure that the confidentiality of your client information is preserved and that you can readily access this information. If you have questions about selecting a cloud provider, the PLF has a practice aid Online Data Security Providers  that will guide you through important considerations before you begin moving your client data to the cloud. Here is the link shortened for your convenience: https://tinyurl.com/y8r9ws3g. The topic of storing files on the cloud has been addressed by OSB Bulletin Bar Counsel Article Archives. Here is the link shortened for your convenience: https://tinyurl.com/ybavg797.

See also Oregon Formal Opinion 2011-188 Information Relating to the Representation of a Client: Third-Party Electronic Storage of Files [Revised 2015] Here is the link shortened for your convenience: https://tinyurl.com/y9oxnbea and Oregon Formal Opinion 2016-191 Client Property: Electronic Only or “Paperless” Client Documents and Files Here is the link shortened for your convenience: https://tinyurl.com/yaus75lm.
 
If you’re looking for resource to help you with disaster preparedness, the PLF has some great ones available on the website www.osbplf.org under the drop-down menu Forms under Practice Management on the home page menu bar. See these two helpful categories: (1) Disaster Response and Recovery and (2) Paperless Office and Cloud Computing. The PLF provides a helpful publication, Planning Ahead: A Guide to Protecting Your Clients’ Interests in the Event of Your Disability or Death. You can download it as a searchable PDF document or order a print copy from the drop-down menu Publications under Practice Management on the home page menu bar. Lastly, be sure to read our OSB General Counsel Amber Hollister’s excellent Bar Counsel article in the October issue of the Oregon State Bar Bulletin.
 
Be safe. Take precautions to protect your clients. Plan ahead now.