On September 19, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released a formal opinion regarding attorneys’ ethical obligations following a natural disaster.
The opinion addressed a broad range of issues including, but not limited to, a lawyer’s communication with clients in the aftermath of a disaster, a lawyer’s continued representation in the affected jurisdictional area, a lawyer’s solicitation of potential clients following a disaster and the available procedures for withdrawal from representation due to changed circumstances.
The Committee first noted that Model Rule 1.4 requires that lawyers communicate with clients. After a disaster has struck, lawyers should maintain an easily accessible list of their clients’ contact information, and in making contact, lawyers should let their clients know whether they will be able to continue their representation. Lawyers should also provide clients with their emergency contact information in their fee agreements or engagement letters.
The Committee next asserted that lawyers who continue to represent their clients after a disaster maintain the same ethical obligations to their clients as before the disaster. Accordingly, under Rule 1.1’s duty of competence and Rule 1.3’s duty of diligence, lawyers in affected areas are required to remain abreast of any continuing deadlines or extensions granted by courts as a result of a disaster. Moreover, lawyers should store files electronically in case they cannot gain access to their paper files after the disaster. Attorneys should also take appropriate steps to ensure access to client funds that the lawyer is holding in trust. A lawyer must inform the client if the lawyer cannot access funds, even if the financial institution itself is inaccessible due to a disaster scenario.
If lawyers seek to continue practicing in another jurisdiction, they may be able to rely on Model Rule 5.5(c), which allows temporary multijurisdictional practice. These lawyers, however, should also consult the Model Court Rule on Provision of Legal Services Following Determination of Major Disaster, which provides that any legal services rendered in a different jurisdiction must arise out of or be reasonably related to the lawyer’s practice of law in the area where the disaster occurred.
Further, under Model Rule 1.16, a lawyer who is rendered incapable of carrying out their ethical obligations to their clients may be required to withdraw from the representation. Rule 1.16(b)(7) provides, in pertinent part, that an attorney must withdraw if their “physical or mental condition materially impairs the lawyer’s ability to represent the client.” The Committee interpreted this to include any severe injury or mental distress sustained by an attorney as the result of a disaster.
In acknowledging that lawyers may want to offer their services to persons affected by disaster, the Committee stipulated that such concerned lawyers must maintain compliance with Model Rules 7.1 through 7.3 in their solicitations to prospective clients. In general, the Rules prohibit lawyers from any live person-to-person contact which does not allow the potential client time to consider the lawyer’s offer, which the lawyer may merely be offering for their own financial gain. Lawyers, however, may offer pro bono legal services to disaster victims in person.
Read the full opinion here.
