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Tuesday, October 15, 2024

As the people of western North Carolina assess the damage and begin to rebuild what was destroyed by Hurricane Helene, lawyers face the difficult task of addressing the impact on both their personal lives and their professional obligations. Despite the devastation, cases remain pending, client concerns persist (if not expand), and a lawyer’s obligations to clients and the justice system endure.

A natural disaster can impact not only individual lawyers and law practices, but also the administration of justice itself. Lawyers—who are also spouses, parents, caretakers, and community members—may quickly become overwhelmed by various needs associated with their law practices, including their professional responsibilities. In the aftermath of a natural disaster, a lawyer must balance personal and professional responsibilities. The State Bar encourages lawyers in western North Carolina to prioritize their safety and that of their families and loved ones in the wake of Hurricane Helene.

When possible, however, a lawyer will need to return to practice and respond to client inquiries. The purpose of this article is to assist lawyers in identifying and prioritizing their first steps in addressing client needs and meeting professional obligations during this trying time.

Lawyers in Western North Carolina are likely facing one or a combination of the following scenarios as a result of Hurricane Helene’s destruction:

  1. The lawyer’s law office remains in place, but the lawyer does not have power, internet access, cell phone reception, or the general technological capability to resume practice.
  2. The lawyer’s law office suffered significant damage, including damage to client files (physical or digital).
  3. The lawyer’s law office was destroyed, along with the contents.

Each of these scenarios presents unique, unpredictable limitations and difficulties to navigate. Accordingly, it is important to note that “[t]he Rules of Professional Conduct are rules of reason[;]” what is reasonable in one scenario may not be reasonable (or possible) in another. N.C. Rules of Prof’l Conduct 0.2[1] (Scope).

The considerations listed below outline some of the more pressing aspects of a lawyer’s ethical obligations in resuming the practice and responding to clients following a natural disaster. The list is by no means exhaustive; rather, it serves as a starting point for lawyers as they rebuild and reengage with their practices and attorney-client relationships. Lawyers should use their independent and professional judgment in determining what reasonable steps are appropriate under their individual circumstances.

When in doubt, rely on the State Bar. The State Bar serves as a resource to lawyers in understanding and meeting their professional responsibilities in these and all scenarios. Questions will likely arise as circumstances evolve, and lawyers may contact the State Bar’s Ethics Staff for guidance, if needed, by emailing ethicsadvice@ncbar.gov or by calling the State Bar at (919) 828-4620.

Diligence and Communication

Lawyers have a duty to act with “reasonable diligence and promptness in representing a client.” Rule 1.3. Additionally, Rule 1.4 recognizes that effective lawyer-client communication is a two-way street: the rule requires lawyers to keep their clients “reasonably informed” about the status of their matters, and anticipates client inquiries by requiring lawyers to “promptly comply with reasonable requests for information” from their clients.

The duties of diligence and communication are essential under normal circumstances. Following a natural disaster, these duties become critical to maintaining the attorney-client relationship and addressing concerns that arise amid uncertainty. However, these duties must be evaluated within the scope of what is reasonable for both the lawyer and the client. What is considered “reasonable” and “prompt” in the wake of Hurricane Helene is circumstance-dependent, and the reality of destroyed infrastructure limits a lawyer’s communication capabilities.

While a lawyer should prioritize his or her own safety, family, and loved ones after a natural disaster, there comes a point when a lawyer must check in with his or her law practice and clients. Although substantive work on the representation may not be possible, a good first step would be for a lawyer to monitor court closings and orders that impact pending cases and other client interests (e.g., orders extending filing deadlines, etc.). If appropriate, a lawyer may need to seek an extension of time or request a continuance in a client’s matter. Information concerning a county’s courthouse and recent orders addressing filing deadlines can be found on the Administrative Office of the Court’s website, www.nccourts.gov.

If possible, lawyers should also prioritize updating their outward-facing communications—such as sending an email to all clients or posting an update on the firm’s website—to inform clients about the status of the practice. Helpful information to include in these communications could encompass the state of the law office (e.g., the office is closed, and clients should expect delays in receiving a response due to the present circumstances), an update on the status of the court system (e.g., courts are closed; filing deadlines have been extended), and assurance that clients will be contacted when the office reopens. Updates regarding clients’ specific cases, including the rescheduling of pending court dates, should be prioritized when possible. Even if there is nothing pressing in a client’s case, lawyers might consider sending a brief message to reassure clients that, despite this crisis, their matters are important and are not being neglected.

Similarly, the duties of diligence and communication suggest a lawyer should reach out to opposing counsel and relevant third parties when possible. Doing so is important not just for the lawyer’s representation of a client, but also for purposes of professionalism. Communicating expectations or delays during this difficult time helps ensure all involved are on the same page and may prevent frustration or future disputes over deadlines.

Securing Confidential Information

Rule 1.6(c) requires a lawyer to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” After a natural disaster, the risk of inadvertent or unauthorized disclosure of client information can increase significantly. For instance, physical files may be misplaced, transported to another location, damaged, or lost; similarly, electronic records may be compromised if proper security measures are not in place. As soon as practicable, lawyers should take steps to assess and secure all client-related information. While working remotely or in temporary locations, lawyers should also ensure that their communication methods and access to client information remain secure. This may include using encrypted communication tools when discussing and accessing sensitive client information, particularly if there is uncertainty about the security of standard channels (e.g., email or cloud storage). Given the potential for disrupted infrastructure, alternative communication methods may need to be utilized.

Conflict of Interest

Lawyers must be vigilant about potential conflicts of interest that may arise, particularly when clients have overlapping issues resulting from the disaster, such as claims against the same insurance provider or issues with shared property. When the clients’ interests are aligned, one lawyer/firm can provide joint representation provided each client gives informed consent confirmed in writing; however, the lawyer should remain cautious in identifying and addressing any conflict arising from evolving circumstances in the joint representation. Rule 1.7(b).

Employee Supervision

Rules 5.1 and 5.3 require lawyers to supervise lawyer and nonlawyer staff to ensure their conduct aligns with the lawyer’s ethical obligations. After a disaster, staff may face challenges in managing files and communications. Lawyers should provide clear guidance to those they supervise on resuming work activities following the disaster, including the handling of confidential information outside of the office.

Competence, Withdrawal from Representation, and Self-Care

Lawyers must provide competent representation to their clients. Rule 1.1. Distractions from personal challenges post-disaster can affect a lawyer's ability to represent clients adequately, and lawyers must recognize when they are unable to perform competently. After a disaster, maintaining competence may become challenging due to loss of access to resources, such as law offices, legal research tools, or files, and disruptions in communication with clients, opposing counsel, or the courts. To ensure competence, lawyers should make efforts to restore access to legal research tools and seek assistance from colleagues if they are unable to manage their caseloads effectively.

Rule 1.16(a)(2) states that a lawyer “shall withdraw from the representation of a client if [. . .] the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client[.]” Lawyers may need to withdraw from representation if their ability to provide competent service is impaired due to the disaster. This may involve difficult conversations with clients and finding alternative representation for them.

Although not explicitly covered by the North Carolina Rules, the impact of a disaster on a lawyer's mental health can affect their ability to represent clients competently. Lawyers facing personal loss or trauma should seek support and avoid overburdening themselves with workloads that may impair professional judgment. The State Bar’s Lawyer Assistance Program can be reached at www.nclap.org.

Professionalism

Maintaining professionalism in all interactions is crucial, especially during a time of crisis. Notably, the Rules of Professional Conduct permit and encourage lawyers to treat others professionally and respectfully. Rule 1.2 states that a lawyer does not violate the Rules of Professional Conduct “by acceding to reasonable requests of opposing counsel that do not prejudice the rights of a client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.” Rule 1.2(a)(2). Lawyers are people dealing with real problems just like everyone else; and the Rules of Professional Conduct allow lawyers—particularly those whose opposing counsel have been impacted by the hurricane—to offer grace, understanding, patience, and kindness in their practices.

Conclusion

Natural disasters create unique ethical challenges for lawyers. The North Carolina Rules of Professional Conduct provide a framework for maintaining professionalism, competence, and client protection under extreme circumstances. While personal recovery is essential, lawyers should still strive to navigate their ethical obligations to clients, the courts, and the public reasonably. Seeking guidance from the North Carolina State Bar and utilizing available legal resources is critical in managing these complex issues during times of crisis. By prioritizing communication, safeguarding client interests, and seeking necessary accommodations, lawyers can rebuild their practices and continue to serve their clients effectively.

Filed Under: General News

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