One of the many issues facing Wisconsin lawyers impacted by the recent flooding is figuring out what to do with client files that have been damaged? What are the ethical implications of losing these files due to the damage? For many attorneys, files have been soaked not only with water, but sewage, fuels and mud as well.  I turned for expert guidance to Attorney Tim Pierce, Ethic’s Counsel for the State Bar of Wisconsin for his input on this issue. Here’s what Tim has to say:

Files are the property of the client which the lawyer holds in trust on behalf of the client (See Wisconsin Ethics Opinion E-00-03 and SCR 20:1.15).  As such, the lawyer has a responsibility to “appropriately safeguard” client files [See SCR 20:1.15(6)].  This obligation, however, does not mean that lawyers have a responsibility to guarantee the safety of client files, but rather to take appropriate and reasonable steps to protect client files.  When, however, files are destroyed by events beyond the lawyer’s control, such as a flood, despite the lawyer’s reasonable efforts to protect the files, the lawyer should take certain steps.  First, current clients should be notified in a reasonably timely fashion of the destruction of their file.  Second, with respect to current clients, the lawyer must assess whether the destruction of the client’s file and/or other circumstances prevent the lawyer from providing the client with competent and diligent representation.  If the lawyer concludes that the lawyer cannot provide competent representation under the circumstances, the lawyer should so advise the client and withdraw [See SCR 20:1.16(a)].  Third, with respect to closed client files, the lawyer should attempt to notify the former clients of the destruction of their files when time and circumstances permit (See Wisconsin Ethics Opinion E-98-01).

You can submit further questions on this or any other legal ethics question to Tim at (608) 250-6168 or (800) 444-9404, ext. 6168, Monday through Friday, 9 a.m. to 4 p.m.

Too often we take a jaded view of our government and how helpful its various departments and agencies actually are in times of disaster. That changed for me on Tuesday when I had a call and email waiting for me from Carl Sherrill of the U.S. Small Business Administration Office of Disaster Assistance. Carl had seen the State Bar of Wisconsin flood assistance resources including the Wisconsin Lawyers Flood Assistance Bulletin Board and the resources on the main website of www.wisbar.org  found here and here and the flood assistance email address of FloodHelp@Wisbar.org .

Carl’s message was succinct and to the point – he wanted to share information with me on assistance available for our members affected by the recent flooding. Not something I expected – a proactive call from a government agency with information to assist lawyers. It turns out that the SBA has loan programs to help with 1) physical property loss and 2) economic injury loss available to businesses of all sizes including professionals such as lawyers. According to the Floods page of the SBA website, the loans available are:

Physical Disaster Loans are a primary source of funding for permanent rebuilding andreplacement of uninsured or underinsured disaster damages to privately-owned real and/or personal property. SBA’s physical disaster loans are available to homeowners,   renters, businesses of all sizes and nonprofit organizations.

Economic Injury Disaster Loans provide necessary working capital until normal operationsresume after a physical disaster.  The law restricts economic injury disaster loans to small businesses only.

A two page PDF Fact sheet can be downloaded here. The actual loan application is only two pages, and it as well as the other supporting document requirements and disclosures can be found here. All in all, it’s a simplified process and the SBA will work with applicants who have trouble providing all of the requested supporting documents. Carl explained that even if a law office didn’t suffer any physical damage, but suffered loss of business because roads were closed preventing it from seeing clients or being open, essentially business interruption, then the economic injury loans were available.

The SBA also has a loan program from homeowners and renters that can be found here .

I want to thank Carl for taking the time to contact the State Bar of Wisconsin and myself to share this information and to give real meaning to the phrase  “I’m from the government and I’m here to help.”

If you have been forced out of your office due to flooding, getting your faxes can be an issue. While you can forward the fax line to another number such as your home telephone line, this requires that you have a fax machine their and also ties up that line for voice calls. A better solution would be to sign up for a 30 day free trial with one of the fax to mail services. Forward your existing fax line to that number given to you by the company and your incoming faxes will be delivered to your email inbox. MaxEmail (which I use for my former office fax number) offers a 30 day free trial that according to their website gives you the following: