Washington Lawyer - July/August 2020 - 19

FEATURE

efore heading to the office,
you watch the morning news
and the weather report calls
for a severe hurricane to make
landfall late that evening. As
you get ready to leave work, you take
a few files with you just in case. You
are sure you will be back in the office
at some point the next day once the
storm blows over. Later you tune into
the evening news to find that the
streets have flooded and there are
multiple blockages and closures. You
think, "Thank goodness I keep my
server secured four feet off the
ground, so even if my office gets
a little water, I will still be okay."

Then you hear the name of the street where your office
is located. It becomes clear that what should be your office
is now a pool of water. Reports say that the area will not
be accessible for at least a few days. With your office -
and your server - submerged, you know everything is
destroyed. What do you do now? This was my experience
in 2011.
Natural disaster or illness can strike any of us at any time.
The issue of disaster preparedness is important to me
personally because I did not have many resources when
disaster struck my life. I was able to work, but I needed a
clear plan for how to maintain operations and manage my
caseload without an office. In the end, I was able to execute
a plan, secure a backup attorney, and maintain operations,
but, I will admit, things could have been easier.
Small firm lawyers and solo attorneys are the most vulnerable when it comes to disasters or unexpected incapacitation because they are more likely to be significantly
impacted, and chances are they do not have a detailed plan
in place. So, what do the D.C. Rules of Professional Conduct
tell us about incapacitation and handling disasters? Rule 1.3,
Comment 5 states:
To prevent neglect of client matters in the event that a
sole practitioner ceases to practice law, each sole practitioner should prepare a plan, in conformity with applicable rules, that designates another competent lawyer
to review client files, notify each client that the lawyer
is no longer engaged in the practice of law, and determine whether there is a need for immediate protective
action. See D.C. App. R. XI, § 15(a) (appointment of
counsel by District of Columbia Court of Appeals, on
motion of Board on Professional Responsibility, where
an attorney dies, disappears, or is suspended for incapacity or disability and no partner, associate or other
responsible attorney is capable of conducting the
attorney's affairs).
There are no rules that explicitly address what attorneys
need to do in the event of a natural disaster, illness, or their
unavailability. The Rules, however, are clear that we are
always responsible for proper management of client funds,
maintaining confidentiality, and zealous representation. We
become susceptible to inadvertently violating any one rule,
if not all of the rules, during a natural disaster. The only way
to be prepared is to establish a disaster preparedness plan
that allows you to continue to practice law. Here are six
things to consider as part of your law firm's plan.

1. DESIGNATE A BACKUP ATTORNEY
For small firm lawyers, the backup attorney should be
another lawyer in your office who is also licensed in your
jurisdiction. This is the most convenient arrangement

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Washington Lawyer - July/August 2020

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