Client Notification Requirements in the Wake of a Disaster

Created for Lawyers Mutual of Kentucky by Sarah McKenna, Board Member, and her Dinsmore attorney colleagues, Chase Cunningham, John Selent, and Joe Tucker.

The following summary of the law and related documents are educational and not intended as legal advice. Any templates provided must be tailored to your particular situation and should be drafted in consultation with your professional liability carrier, if other than Lawyers Mutual of Kentucky.

In the event that any client or former client files are damaged or destroyed due to a disaster, attorneys may have an obligation to provide notice to each affected client or former client, as well as advise the client or former client of efforts to reconstruct the client file. The following resources may be helpful in understanding your obligations in this regard:

• The ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 482 (2018)
• The ABA article, “Ethical Obligations to clients in the wake of a disaster”
• Download a template client letter to tailor to your situation

Notice to Client Regarding RE Risk of Disclosure of Confidential Information

Attorneys must first determine whether notice is required to clients regarding risk of disclosure of confidential or privileged information. Based on the ABA’s Opinion, above, attorneys are required to notify the client if there was a risk of disclosure of confidential information as a result of the destruction of the physical file (e.g., a confidential document or file was removed from the office in the storm and has not been located such that it may be discovered by a third-party).

Notice to Client Regarding Destruction and Reconstruction of the Client File

Next, attorneys must determine whether notice to clients is required regarding efforts to reconstruct the client file. The ABA’s Opinion 482 also outlines the following situations that generally do not require notice to the client regarding reconstruction:

• Electronic Back-Up: “A lawyer need not notify either current or former clients about lost documents . . . for which there are electronic copies.” (Formal Op. 482 at 9.) Thus, when a physical file is destroyed but the file was stored via an off-site electronic restorable backup and can be fully restored, notice regarding reconstruction is not required.

• Ability to Reconstruct: If an attorney is already able to reconstruct files from other sources, there is no need to notify clients or former clients of the loss, which is effectively already over. (Formal Op. 482 at 9.)

• No Intrinsic Value: “A lawyer need not notify either current or former clients about lost documents that have no intrinsic value [or] that serve no useful purpose to the client or former client.” (Formal Op. 482 at 9.) Attorneys will have to make this determination on a case-by-case basis, but it is possible that some files will contain nothing other than public records, not otherwise destroyed, and papers that no longer serve any purpose. Under such circumstances, there most likely is no loss to disclose.

Notice to Client Requirements

Once an attorney has determined whether there is a need to advise a current client or former client regarding the destruction of their physical file, the letter to the client must include the following elements:

Notice — It is an attorney’s responsibility to “keep the client reasonably informed” of a matter’s status. SCR 3.130(1.4). An attorney also must safely maintain any property held for clients or third parties, such as former clients. See SCR 3.130(1.15).

Reconstruction — Furthermore, an attorney must “provide competent representation” and “act with reasonable diligence and promptness in representing a client.” SCR 3.130(1.1), 3.130(1.3). In doing so, the attorney must inform the client or former client of the steps being taken to recreate the damaged file.

Disclosure — Finally, it is an attorney’s responsibility to protect confidential client information. See SCR 3.130(1.6). The attorney must advise their client of the risk of potential disclosure of confidential information as part of the destruction of the client or former’s client file, to the extent applicable. This is likely to be the case if the file has been removed from the office and cannot be located rather than a file that was destroyed by water damage, but remains in the attorney’s possession.

As always, LMICK is here for you. If you have any questions regarding this issue, please contact us at 502-568-6100.