Washington Lawyer - July/August 2020 - 20

FEATURE
because they know you, both personally and professionally, and may
already have some insight into how you manage your cases. For the solo
attorney, finding a backup can be more challenging. You may have to
network and consider fellow practitioners licensed in your jurisdiction for
this role. Keep in mind, if you ask a solo colleague to do this for you, they
may ask the same of you in return.
Establish a formal written agreement with your backup attorney and
provide a written plan for your staff that identifies the attorney as your
backup. This plan should set out clear procedures and instructions for
them to follow if you are unavailable. There are many things to consider.
What if the backup attorney is in the same practice area as you and has
the potential for conflicts? You can mitigate these concerns by limiting
what you are asking your backup to do and the amount of access they
will have to your client information. The D.C. Bar Practice Management
Advisory Service can provide you with a template agreement to assist
you with this process.

2. BE SPECIFIC
Your designee should know exactly what you need them to do if you
become incapacitated or unavailable. Your agreement should address
the issue of confidentiality of your client files and how to handle any
potential conflicts. You should also disclose the existence of this backup
arrangement to your clients in their fee agreement and explain to
them what duties your backup will perform. For example: "The backup
attorney may access your file limited to information necessary to: apprise
you of the situation, file necessary protective motions on your behalf,
and/or provide notice to the court." Remember, D.C. lawyers are bound
by Rules 1.6 (Confidentiality of Information) and 8.4 (Misconduct). A
formal written agreement establishes that the designated lawyer is
standing in for you in a backup capacity and, therefore, must comply
with those rules.
The protocols you establish do not require that you give your backup full
knowledge of client matters. A backup attorney can be limited to tasks
as you see fit, such as providing notice to clients of your incapacity using
a contacts list but without giving access to any specifics related to their
matter. You must use your judgment when deciding how much or how
little access to provide, especially when the potential for conflicts exists.
A backup attorney for a transactional law practice will require different
instructions than a backup for a litigation practice. For example, if you
litigate, you may wish to instruct your backup to access your calendar to
determine any deadlines or upcoming court appearances. If your matters
require that a backup attorney take "protective action," a prepared
sample template motion may make it less arduous for your backup.
Keep in mind that you also have financial obligations to your clients.
If you are taking advanced fees in your practice, you may also need to
provide your backup attorney with instructions on how to handle your
IOLTA account or how to contact your accountant to ensure the proper
distribution and collection of client funds. Test-driving the backup plan
regularly and reviewing clients with your backup attorney can also help
to avoid conflicts and expose any weaknesses in the plan.

3. MAKE INFORMATION ACCESSIBLE
Storing your files electronically using Office 365 with OneDrive or Google
for Business with Google Drive, for example, allows your backup lawyer

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to access your files remotely if needed. Cloud-based case management
programs such as Clio and MyCase also make your files accessible online.
Provide specific instructions for where the backup attorney can find
the necessary information. If you are using cloud services, your backup
attorney will need to know the specific software and accompanying
login credentials. They may also need access to passwords for e-filing.
Determine the best way to provide these access codes so that your
backup attorney uses them only when necessary. One method is to
put your important passwords in a sealed envelope kept in a safe, with
instructions that the backup attorney open it only during an emergency.
Consider other barriers that could manifest when your backup attorney
has to access your data and determine how to make that information
accessible.

4. GO PAPERLESS
Going paperless makes it easy to access your files from anywhere. This is
certainly not a novel idea, but many lawyers still have not implemented a
complete and systematic paperless process. Electronically stored documents, maintained securely and confidentially, can be extremely useful
to any lawyer, especially the small firm attorney. During a natural disaster,
most small firm lawyers cannot afford to be inoperable for even a few
days or weeks. Having access to your documents electronically allows
you and your staff to continue working even if your office is no longer
standing, and it provides your backup attorney easy access to data.

5. BACK UP TO THE CLOUD
Being paperless and storing documents electronically does not automatically mean you are protected from the consequences of a disaster.
If you scan all your documents and store your data on a server in your
office or back up to a computer in your home, you could still have a
problem. What if both locations are impacted by a natural disaster?
Consider an additional backup process for all that data on your computer
using a cloud service such as Carbonite.com or Ironmountain.com; some
services can also back up any downloaded programs. The more backups
the better. Back up, back up, back up! Then test your backup system to
make sure you can recover your data.

6. PREPARE YOUR STAFF
If you have staff who typically work onsite, they should be trained on the
protocols to follow in the event of a disaster. Have written policies and
procedures for your staff. You should have specific protocols that address
how employees should work from another location and how they can
access information. Consider using cloud services for remote access to
your files and programs. Assuming all have internet access, you and your
staff can continue to collaborate and work offsite. Your staff should also
know how to reach your insurance carrier, your designated backup
attorney, and your personal emergency contact. At least one day a
month, work remotely to test your system.

For more information on how to plan for disasters and develop a backup plan
for your office, contact Rochelle Washington at rwashington@dcbar.org or
pmas@dcbar.org. Guidance provided by the D.C. Bar Practice Management
Advisory Service is free and confidential for D.C. Bar members.

http://www.Carbonite.com http://www.Ironmountain.com

Washington Lawyer - July/August 2020

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