It doesn’t take much to imagine the many disasters that, in an instant, could derail a law firm’s operations. Unexpected events that affect your health — pandemic, perhaps? — or others that affect your working space — think floods or fires — or cyberattacks can severely hamper your ability to provide legal services. Without a strategy to mitigate the effects of sudden calamity, you can lose time, money, and resources trying to recover. You could even end up the subject of discipline or malpractice claims if failure to prepare harms a client.
Develop a Business Continuity Plan
According to FEMA, more than 40 percent of businesses never reopen after a disaster. But having a plan, specifically a business continuity plan, can mean the difference between your firm surviving or collapsing in a disaster.
A business continuity plan is a written document that lays out protocols for your firm to follow so that it can function and accomplish critical business needs in the event of an unexpected disaster. Your business continuity plan for unexpected events should specify a process like this:
- First 12 hours: Your plan should include a written process and approach for notifying clients and opposing counsel that you are experiencing an emergency; e.g., set an automatic email reply, change your voicemail greeting, and provide contact information for urgent matters. If you have staff, you should have an established process for communicating with each other.
- First 24 hours: You need to identify all existing deadlines and determine which deadlines are occurring within four weeks; which of those deadlines require an extension; and the process for obtaining those extensions (for example, can you informally request an extension by email? Do you need to make a motion to the court?). If the incident implicates an insurance claim, begin the claims process and be sure to document any relevant damage.
- First 48 hours: If the hardware you primarily use to work—e.g., computer, laptop, or tablet—is destroyed, you need to determine your options for replacing that hardware or utilizing other options, mindful of confidentiality concerns and cybersecurity protection. Also, determine what steps need to be taken to ensure payroll is processed on time, as well as any unpaid bills or invoices.
- First 72 hours: Unless your initial analysis indicated that you need to do this sooner, start your process for obtaining any extensions you need. In addition to deadlines, you need to identify and address any document loss you suffered, including business records, trust accounting records, and any client files.
- First week: By the end of the first week, you should be as close to fully operable as possible. You should be able to timely complete work and respond to inquiries, your bookkeeping should be up to date, and you should have a process in place to address any long-term needs such as permanent office space.
Your business continuity plan should also keep an up-to-date summary of:
- Banking information
- Contact information and emergency contacts for yourself and all staff members
- Contact information for vendors
- Location of where to obtain contact information for all clients on current matters
- Insurance information
Practice Guides and Personalized Advice
This article provides the barebones for a business continuity plan. For more detailed information, check out WSBA’s Law Firm Guide on Disaster Planning. Included in the guide is a template to help you get started on creating your own business continuity plan. The guide also dives into your professional responsibilities to disaster plan, general best practices for risk mitigation, and designating a custodian if you are unable to practice.
You can also download and explore other practice guides and accompanying forms on cybersecurity, hanging your own shingle, and document retention. For personalized advice, WSBA members can schedule a free confidential consultation with a practice management advisor here.
In our rapidly changing world, disaster planning is a critical aspect for legal professionals. Whether facing natural calamities, technological disruptions, or unforeseen emergencies, law firms must be well-prepared to navigate challenges while maintaining business continuity and serving their clients effectively. Regardless of the specific threat, its impact on a law firm’s operations can be severe if adequate preparation is lacking. The consequences may include financial losses, reputational harm, regulatory penalties, and even a loss of client trust. A robust disaster plan acts as a lifeline, ensuring that firms can weather storms and emerge stronger on the other side.
Key Elements of a Comprehensive Disaster Plan
To fulfill their professional responsibilities and protect their firms, legal professionals should develop a robust disaster plan. Here are key elements to consider:
- Risk Assessment: Begin by conducting a thorough risk assessment. Identify potential hazards—both internal and external—that could disrupt your firm’s operations. Consider natural disasters, cybersecurity risks, emergent medical issues, and operational failures. Understanding these risks is essential for effective mitigation.
- Business Impact Analysis: Perform a business impact analysis. Assess the potential consequences of various disaster scenarios on your firm’s operations, finances, and reputation. Identify critical functions, dependencies, and recovery time objectives to allocate resources effectively.
- Emergency Response Plan: Develop clear procedures and protocols for responding to disasters. Establish chains of command, communication channels, evacuation routes, and regularly train employees. Safety and client well-being are paramount.
- Data Backup and Recovery: Implement robust data backup and recovery systems. Regularly back up electronic data and store copies securely offsite. Develop procedures for restoring data swiftly in case of a data loss incident. See the Washington State Bar Association’s Law Firm Guide on Cybersecurity for additional assistance with cybersecurity issues.
- Communication Strategy: Establish a comprehensive communication strategy. Designate spokespersons to liaise with clients, employees, regulators, and the media. Maintain up-to-date contact lists and alternative communication channels.
- Continuity of Operations Planning: Create a business continuity plan. Define roles for key personnel, identify alternate work locations, and outline procedures for resuming normal operations promptly. You can download a form plan here.
- Training and Testing: Regularly train employees on disaster protocols. Conduct tabletop exercises and simulations to test the effectiveness of your plan. Review and update it as needed to adapt to evolving threats.
Designating a Custodian
Consider designating a custodian (sometimes called an “assisting attorney”) responsible for implementing and maintaining the disaster plan. The custodian should have the authority to make critical decisions during a crisis and coordinate response efforts across the firm. Memorialize the custodian’s role and responsibilities in a written document to ensure clarity and accountability.
Disaster Planning and Professional Responsibility
Licensed legal professionals in Washington State bear a solemn duty to competently represent their clients. This duty extends beyond routine legal work; it encompasses the responsibility to prepare for unforeseen events that may disrupt normal practice. Let’s delve into specific aspects of these professional obligations:
- Reasonable Diligence and Promptness. Rule 1.3 of the Washington Rules of Professional Conduct (RPC) emphasizes the need for legal professionals to act with “reasonable diligence and promptness” when representing a client. Unreasonable delays can cause needless anxiety and erode confidence in the lawyer’s reliability.
- Protecting Confidential Information. Confidentiality lies at the heart of the attorney-client relationship. Under RPC 1.6, legal professionals cannot reveal information related to a client without their consent. This rule necessitates reasonable precautions to safeguard client information from inadvertent disclosure—even during times of crisis. Losing access to critical documents or data due to a disaster could compromise client confidentiality and trust.
- Document Retention Requirements. Document retention is more than administrative housekeeping; it directly impacts a lawyer’s ability to serve clients effectively. RPCs 1.15A and 1.15B mandate the maintenance of records and documentation related to trust accounts and property for at least seven years.
A Call to Action
The legal profession thrives on preparedness. Disaster planning isn’t a mere checklist; it’s our duty. As we navigate the unpredictable, let us equip ourselves with robust plans, protect client trust, and emerge stronger.
