What’s Your Plan for 2020?

The New Year always brings about new plans. For many of us, resolutions abound as we plan to have a healthier, happier, more prosperous New Year: Plan to eat less and exercise more; to drink less; to save more; to enjoy more time with family and friends and decrease our stress level. Some plans relate to the practice of law: be more organized and procrastinate less; record those billable hours daily; find ways to cope with the stress of practicing law.

All of those are laudable goals that deal with problems about which we are aware. Stop for a minute. Look at the you of a year ago, and take inventory of those major challenges or crises you dealt with this past year that were not even on your radar screen on Dec. 31, 2018. Those huge problems can derail one’s plans and totally upset the equilibrium of normal life. There is no preparation for such things as a tornado, the loss of a loved one or a serious illness. But for some law-practice-related calamities, there are steps we can take to be prepared and, in many circumstances, steps that we are ethically required to take.

What kind of crisis could affect a law practice? Many involve natural disasters. Remember the 2010 Nashville flood? The 2016 Gatlinburg wildfires? The 1999 Clarksville tornado? The 2019 Loudon County courthouse fire? A week before each of these events, none of those involved anticipated that their lives were about to be turned upside down, sometimes personally as well as professionally. These types of disasters wreak havoc on the lives of their victims. What happens to your practice and your clients if you have no access to your office, no way to reach your clients, no paper or electronic files? Some of our members have lived this nightmare, and I’m guessing it dramatically changed the precautions they now take in their offices. And it turns out that we actually have an ethical duty to be reasonably prepared for the worst.

Of equal concern is the crisis resulting from a health or other calamity that renders an attorney unable to represent clients, necessitating others to come in and pick up the pieces of a law practice. Is the status of each case well documented? Are files properly being billed and payments being accounted for? Where is the client’s money that should be in trust? Where are the items of property that the client entrusted to the lawyer, such as an original will or evidence critical to the successful trial of a case?

In this electronic age, one of the first and most basic steps is backing up our records, electronic and physical. Options include a digital backup of our servers, to be kept off site and updated frequently. preferably daily. Other options include maintaining a back-up in “the cloud.”

However, there are many more facets for being prepared to handle the impact of a disaster on your practice. The American Bar Association has a number of resources available to assist lawyers in preparing for and coping with such trying situations. Some can be found at:

I highly commend to you a publication found therein titled Surviving a Disaster: A Lawyer’s Guide to Disaster Planning found at

This publication explains the concept of practice or business continuity in the event of a disaster and even includes a business continuity plan, i.e. “How to Survive a Disaster Plan,” that is every bit as thorough, helpful and reasonable as I have seen implemented by major corporate and institutional entities, yet its provisions are equally applicable to a two-lawyer firm. It contains flowcharts, guidelines and even checklists to prepare for and cope with such calamities so that the entity can continue to operate and succeed, despite the misery that has been steeped upon it and, often, the community as a whole.
The TBA also has disaster planning and response resources, available at www.tba.org/disaster-relief-resources.

In addition to the practical side of preparing to cope with and prepare for a disaster, there are related ethics issues. Take a look at ABA Formal Opinion 482, Ethical Obligations Related to Disasters (Sept. 19, 2018). It directs us to the Rules of Professional Conduct that come into to play when business as usual is derailed due to a disaster. These include Rule 1.4, ability to communicate with clients, and the opinion reminds us we need client lists and contact information. Rule 1.1 obligates us to be informed about technology relevant to the law practice. This would certainly include properly backing up and maintaining client information. Rule 1.15 requires the safeguarding of documents, especially client files and documents with intrinsic value, such as an original will, and protecting client assets, including but not limited to trust funds.

See also ABA Formal Opinion 483 regarding Lawyers’ Obligations After an Electronic Data Breach or Cyberattack (Oct. 17, 2018). A breach in cybersecurity is yet another type of disaster for a law practice.
All it takes is visualizing your office burned to the ground to prompt you to make a plan to protect yourself and your clients. It’s time to make a plan. Here’s to a happy, healthy, prosperous and safe 2020.

SARAH Y. SHEPPEARD  is a shareholder in the Knoxville office of Lewis Thomason and a Rule 31 Listed Mediator. You can reach her at SSheppeard@LewisThomason.com.

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