By Jim Calloway

The year 2017 has been an extraordinary year for hurricanes impacting the U.S. and the Caribbean. It is heartbreaking to see pictures and videos of the destruction and devastation. Recovery will take many years for some of these areas and many families have lost photo albums and prized possessions that cannot be replaced. The number of wildfires in the northwestern part of the U.S. this year has been staggering as well.

In Oklahoma, we have experienced our own disasters from many sources including domestic terrorism, drought, wildfires and many destructive tornadoes. Disaster refers to a wide-ranging event, but I’ve often heard the phrase “What a Disaster!” used for personal or individual misfortune such as a person taken too soon by an automobile accident or illness. If a lawyer has been working on a brief for three days and the computer’s hard drive crashes the day before the deadline, it feels like a disaster.

Businesses today have business continuity plans in place. These plans often address both recovery from and prevention of damages caused by disasters. The plans are mainly for the benefit and survival of the business, with the customers being the incidental beneficiary.

For lawyers, it’s a little different.

“Disaster planning is especially important for lawyers. Not only is it necessary to protect, preserve, and in extreme cases rebuild one’s practice or firm, lawyers also have special obligations to their clients. Lawyers must represent the client competently and diligently, safeguard the client’s property, and maintain client confidentiality and communications.

“These obligations are neither excused nor waived following a disaster.”

– ABA Special Committee on Disaster Response & Preparedness

This is direct and maybe it even sounds a little bit harsh, but it is accurate. The positive perspective of this message is that there is no conflict between your personal needs, your law firm’s needs and your client’s needs. The “need” for all is for your law practice to recover quickly from any disaster with no loss of client data and all systems intact. It is true that 100 percent recovery from a significant disaster is unlikely. But with advance planning and the smart use of technology-based tools, an “almost perfect” recovery is very possible.

The first step in planning for Oklahoma lawyers is to download, read and act on the advice in the OBA-provided e-book, Planning Ahead Guide: Attorney Transition Planning in the Event of Death or Incapacity. For OBA members, the download link is “Attorney Transition Planning Guide” at the bottom of the My Profile page after you login to our member site. This planning guide was adapted with permission from a publication of the same title from the Oregon State Bar Professional Liability Fund. Many bar associations provide a similar guide to their members.

Lawyers encourage their clients to create an estate plan and execute a last will and testament for obvious reasons. The same types of obvious reasons are why almost every lawyer in private practice should follow the advice in the planning guide and use the planning forms it contains. If you are temporarily sidelined, this planning will help you return to a more stable practice. If it’s not temporary, your family members and professional colleagues will thank you for making their job closing down or transferring your practice easier.

THE DISASTER RECOVERY PLAN

The key to surviving any disaster is planning in advance. Every law firm, of whatever size, should have a disaster recovery plan. It should be reviewed annually. A copy should be kept in the cloud as well as on paper. Several trusted members of the firm should also keep a paper copy at home.

The plan should contain contact information for all those individuals you may need to call on for assistance in the event of a disaster. This includes all important vendors and their contact information, copies of insurance policies and contact information and the landlord’s contact information, those you would want to repair building damage and many others. This is why your disaster recovery plan (or, more formally stated, your business continuity plan) is unique to you and your firm, requiring an investment of your time to assemble.

There also should be documentation about law firm internal processes. Time, billing and accounting information are largely contained on your law firm network or computers today. But for planning, you must assume you might not have access to computers and network. If your firm uses billing codes, you will certainly want hard copies of those, so that any client work done during the recovery can be appropriately documented. A hard copy of contact information for clients might also be useful.

Having all software license numbers and installation disks is a more daunting task than it might seem at first glance. You can use tools like Belarc Advisor to take a snapshot of all the installed software with the license numbers on individual machines. Another category of information includes information on all hardware and office furnishings, assuming you might have to make an insurance claim.

One thing that I’ve repeatedly heard from many who have survived a disaster is that it is challenging just to think about what needs to be done and establish priorities. That is why it is so important to have written lists and plans that were created in a calm and reflective moment. For just one example, if you are concerned about flooding or a tornado, the office dishwasher is one handy watertight storage location. But in a rush to evacuate, no one will think of that unless it is included in the disaster planning and has been discussed in your disaster recovery staff training.

There are online resources to assist in your planning. The American Bar Association has a disaster planning webpage that includes a link to Surviving a Disaster: A Lawyer’s Guide to Disaster Planning. The guide contains a sample business continuity plan at attachment A.

PEOPLE COME FIRST

If you experience a widespread natural disaster, you will of course check on your family members first. The next step is to check in with your “work family.” You should have an emergency contact list with the home and cell phone numbers for all staff, including part-time employees. This should be stored in a secure cloud location, but it also makes sense to store it on your phone so it can be accessed in a situation where there is cell phone service but no internet access.

Helping a trusted employee deal with the flooding in their home might be the most productive thing you can do in the first few hours after a disaster. But don’t let the urge to do something cause anyone to compromise their personal safety post-disaster. The point of planning is to take positive steps to recover as quickly and effectively as possible.

BACKING UP DATA

Today, most experts would say it is a business requirement to have a cloud-based backup system. Multiple methods of backup are suggested. Test your backup regularly to make sure it is working. There are many reputable cloud providers – examples include Mozy, Carbonite, Backblaze, CrashPlan SMB and Acronis. For more information on backup, refer to the Law Practice Tips column of the Oklahoma Bar Journal from April, “Backing Up, Like Breaking Up, Is Sometimes Hard to Do.” As noted in the article, multiple backups are the proper standard of care today.

Instant disaster recovery and remote access are two of the reasons why the Oklahoma Bar Association Management Assistance Program strongly recommends the use of cloud-based practice management systems, particularly for solo and small firm lawyers. One can have done all of the backups appropriately, but if you have to buy new computers before you can restore the backed-up data, there will be delays. With cloud-based practice management, you can access all of your client files and other information via your cell phone. When you have electricity, internet access and any secure computer, you are up and running for essential client services with cloud-based practice management.

Using a practice management solution to support a digital client file system means that it is easier to determine what tasks merit the most urgent priority. Some lawyers have created a portable hard drive or flash drive that contains their legal forms. This might prove handy if some things need to be done urgently and the lawyer has power and a computer and printer, but no internet access.

While we discuss using password managers to allow us to use unique long passwords for greater security, knowing the password to open your password manager also means that you could install the password manager on a different machine and then have access to all of your online assets.

POWER

We take electricity for granted − at least until our phone needs a charge. One of our rituals when power loss is imminent is to charge up all of our small handheld battery chargers and make sure all of our laptops, phones and other devices are fully charged.

All important electronic devices such as computers, servers, networking hardware, phone systems, etc. should be kept on uninterruptible power supply (UPS) devices, which are nothing more than “smart” batteries. This will protect equipment from dirty electricity, surges and outages, all of which can cause damage to equipment. A battery backup may be able to supply the phone system with enough power during an outage to allow you to continue business operation or communicate with rescue personnel. These battery backup devices will also allow computing equipment sufficient power to shut down properly, which can help to prevent data loss or corruption of files.

CONCLUSION

After Hurricane Katrina, I had the opportunity to visit with many impacted lawyers in Louisiana and Mississippi. I was haunted by the story of the lawyer who just finished a major project, packed up his laptop to accompany him on the evacuation and then, at the last minute, decided to leave it on his secretary’s desk so she could proof and print the final version of the project. Within a day, his office and his laptop were underwater. Had he spent some time in advance thinking about an overall law firm disaster plan, he likely would not have made that costly error. Spend some time creating a plan so that you can avoid costly errors if you are confronted with a disaster.

Mr. Calloway is OBA Management Assistance Program Director. Need a quick answer to a tech problem or help solving a management dilemma?  Contact him at 405-416-7008, 1-800-522-8065 or jimC(at)OKbar.org.  It’s a free member benefit!

Originally published in the Oklahoma Bar Journal — October 21, 2017 — Vol. 88, No. 27