Regulatory Information for Attorneys Impacted by the California Fires
The fires in California have touched many people, including lawyers and law firms. Attorneys should consider their ethical obligations if their practice is affected or forced to close due to a natural disaster or other catastrophic event. Attorneys with questions or concerns about their ethical obligations should contact the State Bar’s free and confidential Ethics Hotline: 800-2-ETHICS (800-238-4427)
Ethical obligations
The State Bar has warned the public to watch out for and report potential fraud by lawyers. California law prohibits lawyers or others acting on behalf of a lawyer from:
- Soliciting clients at an accident scene, at a hospital, or on the way to a hospital
- Soliciting clients who, due to their physical, emotional, or mental state, may not be able to have reasonable judgment about the hiring of an attorney
- Seeking clients by mail unless the letter and envelope are clearly labeled as an advertisement
- Promising a particular outcome from the legal representation
A lawyer’s ethical obligation to capably serve clients does not end in the wake of a natural disaster such as a fire. Here are some ethical rules and statutes that may apply:
- Rule 1.1 of the California Rules of Professional Conduct forbids a lawyer from “intentionally, recklessly, with gross negligence, or repeatedly” failing to perform legal services competently
- Rule 1.4 of the California Rules of Professional Conduct requires attorneys to keep clients informed
- Rule 1.16 of the California Rules of Professional Conduct outlines how and when a lawyer may withdraw from representation
- Rule 1.15 of the California Rules of Professional Conduct provides that a lawyer shall “identify and label securities and properties of a client or the other person promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable.”
- Code of Civil Procedure Section 286 governs the death, removal, or withdrawal of an attorney
- Business and Professions Code Section 6068 describes the duties of an attorney generally
- Business and Professions Code Section 6180 and Business and Professions Code Section 6190 govern the Superior Court’s assumption of jurisdiction over a law practice when an attorney becomes incapacitated or ceases law practice
Be prepared for a future disaster
For those who were fortunate enough to be spared from loss of life or property, now is the time to prepare if disaster strikes again. Here is a checklist of helpful tips:
- Make sure your property insurance covers client property, along with the cost of hiring temporary help to reconstruct files and billing systems
- Maintain an off-site list of client names and contact information
- Maintain an off-site list of cases including case name, docket number, court, judge, and opposing counsel
- Maintain an off-site calendar for each case
- Maintain off-site accounting records and billing information
- Back up computer files, with one set stored off site
- Keep an inventory of client property and valuable office furnishings
- Keep irreplaceable client property in a locked, watertight, and fireproof safe or evidence locker
- Arrange for a designated attorney to administer a law practice in the event the lawyer becomes disabled or incapacitated through the State Bar Attorney Surrogacy program
Ethics opinions
- State Bar of California Formal Opinion 2001-157: Retention of Client Files
- Florida Bar Professional Ethics Opinion 72-37: Safeguarding Client Property
- Mississippi Bar Ethics Opinion No. 254: Retention of Clients Property and Files
- New York City Bar Formal Opinion 2010-01: Use of Client Engagement Letters To Authorize the Return or Destruction of Client Files at the Conclusion of a Matter
- New York City Bar Formal Opinion 2015-6: Duty to Notify Clients when their Files are Accidentally Destroyed
Other resources
- Voluntary bar associations may have additional resources for attorneys. Search for a local bar
- Ethical obligations to clients in the wake of a disaster (ABA Center for Professional Responsibility)
- Surviving a Disaster: A Lawyer’s Guide to Disaster Planning, American Bar Association, 2011
- Reconsidering Lawyers' Ethical Obligations in the Wake of a Disaster, Sandra S. Varnado, Dane S. Ciolino, 19 No. 4 Prof. Law. 8, 2009