Trial Magazine

During Hurricane Harvey, 12 feet of water flooded the first floor of our law office. But we were ready, and you should be too. Natural disasters can strike anywhere at any time, and when they do, lawyers have ethical and professional obligations to keep clients informed, safeguard client files and property, and provide competent and diligent representation. A business continuity plan enables you to fulfill these obligations while ensuring that your practice continues running smoothly.

Although it may not eliminate all the costs and consequences of a disaster, proper preparation will minimize financial losses and allow your firm to continue serving your clients. The complexity of your plan depends on the size of your practice, but at a minimum, it should address the following elements.

 

#1 Prepare for All Scenarios

While hurricanes, floods, tornadoes, and fires are among the most common natural disasters, your list will vary depending on your geographic location. Your business continuity plan should address each potential threat because different disasters require different preparation. Although separate plans are not required for each type of disaster, consider developing a business continuity plan for partial losses and total losses.

 

#2 Designate an Emergency Response Person or Team

Depending on the size of your practice, assemble a small team of people—or designate one person (along with a backup)—who will be responsible for executing your business continuity plan. Employees who are in a position of authority, are familiar with your firm’s daily operations, and perform well under pressure are ideal candidates for your emergency response team.

Delegation and clear communication are critical to ensure that each emergency response person or team member is aware of the specific tasks that he or she is responsible for completing. Tasks may include contacting building management or security to determine the condition of your office and whether it is safe to return, establishing a temporary office, or conducting an initial damage assessment and contacting your insurance carrier. Team members should have access to the firm’s bank account and credit card information, as well as blank checks to pay for any needs you may encounter during a disaster.

 

#3 Safeguard Files and Evidence

Back up all of your servers, optimally in the morning and evening but, at the very least, once a day. Backup servers should be stored offsite. If a full backup is not feasible, you should store critical documents in the cloud. Rule 1.15 of the Model Rules of Professional Conduct requires lawyers to safeguard their clients’ property, so take steps to protect client files and information and to secure any physical evidence and important documents you may be storing in your office.

For example, avoid storing files near windows, on or near the floor, or in basements and other low-lying areas. Tornadoes may break windows, causing loose papers and files to fly out into the street. Wind-driven rain during a hurricane can cause significant water damage to paper files and other documents in your office. Depending on the type of disaster that can occur in your location, you may want to move important files and evidence to a secure location, such as an upper floor, if you have advance warning of flooding.

 

#4 Create a List of Critical Contacts

Keep an updated list of current employees, including their personal telephone number, home address, and an emergency contact. Consider creating an emergency call tree, a list beginning with partners or management-level employees who will contact a designated employee, who is then responsible for calling one or more employees below him or her on the tree. This will allow all employees to quickly learn of new office hours, temporary work locations, and other important firm announcements.

You also should maintain a list of critical firm contacts, including your insurance agent, utility companies, computer and tech support, ­landlord or building management, security and alarm companies, payroll and accounting companies, remediation companies, and vendors. And make sure that you have access to contact information for your active clients, opposing counsel, and courts. This information should be maintained in electronic format and backed up on a daily basis.

 

#5 Manage Incoming Calls, Emails, and Mail

Determining how your firm will manage external communications during a disaster is essential not only to ensuring business continuity but also to fulfilling an ethical obligation to your clients. You may, for example, want to reroute incoming phone calls to an answering service or record a voicemail message that includes alternate contact information. If email access will be limited for any period of time, set up an automated email reply message notifying the sender of your alternate contact information. Be sure to notify the post office and any other delivery services of location changes, as well as any holds that need to be placed on incoming mail and packages.

Remember that your business continuity plan must specifically address client communication. Rule 1.3 of the Model Rules of Professional Conduct states that a lawyer shall act with reasonable diligence and promptness in representing a client. Rule 1.4 states that a lawyer shall keep the client reasonably informed about the status of the matter and promptly comply with ­reasonable requests for information. These rules apply even in the aftermath of a disaster. Consider establishing a 48-hour ­deadline to respond to a client phone call or email during a disaster—doing so will retain client confidence.

 

#6 Keep Your Calendar Updated

Maintaining a regularly updated calendar decreases your chances of missing an important deadline during a natural disaster. To stay on track, be aware of all upcoming deadlines, and make sure you have access to all file materials and
other resources you may need to complete certain tasks.

If necessary, contact opposing counsel or courts ahead of time to request an extension on impending deadlines or to reschedule hearings, depositions, or mediations. Share your calendar with staff members or other attorneys in your office to reduce the likelihood that a deadline is missed. Smaller firms may consider creating a shared calendar so all firm employees are aware of upcoming deadlines.

 

#7 Identify Alternative Workspace

Because a natural disaster might damage or destroy your workplace, identify and arrange alternative workspace before a natural disaster strikes. Allowing employees to work from home or using another firm’s office space or conference rooms will reduce a disaster’s financial burden. If these options are unavailable, consider renting a hotel conference room or entering into a short-term lease for temporary office space.

Make sure your employees have the proper equipment and access to any necessary files and information offsite. Setting up remote access to emails and client files minimizes business interruptions and ensures that employees are able to complete their daily tasks.

 

#8 Take Stock of Files and Equipment

Create an inventory of your office contents, including computers, printers, copiers, fax machines, telephones, and furniture. Document identifying information such as serial numbers, make and model, purchase price, and the date of purchase. You also should take photographs of your office and its contents.

If at all possible, you should remove laptops, desktop computers, and other portable equipment such as scanners and printers from your office before any disaster to avoid damage.

 

#9 Ensure You Have Adequate Insurance Coverage

Review and evaluate your policies regularly to ensure that you have adequate insurance coverage for every type of disaster your practice may encounter. For example, make sure you know what types of events are covered and not covered under your policy, and—if necessary—purchase additional coverage. If you rent office space, obtain renters insurance, and make sure that the policy covers your office’s contents as well.

For those who have small law firms or are sole practitioners, keep in mind that a disaster will have a significant impact on your firm’s finances. Business interruption coverage will help lessen that impact by providing money for lost profits, employee salaries, and other expenses associated with keeping your practice open.

 

#10 Put Your Plan in Writing

Your business continuity plan should be written down to clearly assign authority and responsibilities to individual employees. Following a disaster, a written plan reduces confusion and ensures that all the necessary steps to resume business are completed.

Review and update your business continuity plan at least once a year to account for changes in personnel, insurance coverage, office contents, and any other changes. Once completed, be sure to share the updated plan with everyone in your office.

Natural disasters take many forms and are oftentimes unpredictable and unexpected. The good news is this: Advance planning will minimize business interruptions and allow you to fulfill your ethical and professional obligations. It may even save your practice. Now is the time to ask yourself, “When disaster strikes, will we be ready?”

Randall O. Sorrels is the managing partner and Michelle A. Ciolek is an associate at Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz in Houston. They can be reached at rsorrels@abrahamwatkins.com and mciolek@abrahamwatkins.com.