Samuel C. Stretton.

Opinion provides guidance on how to maintain your office and protect your clients.

A friend of mine who is a lawyer had a fire in his law office and it destroyed a number of files. What are his ethical obligations under those type of circumstances?

Fire or any sort of natural disaster, such as a hurricane or a major flood, can wreak havoc with a law office or law practice. Presumably lawyers in North Carolina and South Carolina, after the recent hurricane, have not been to their office for a number of days and many of their files in their offices may have been destroyed or damaged.

Lawyers have obligations to keep their clients advised every step of the way of the status of their case. If something happens to the client's file, the lawyer must advise the client immediately under Rule 1.4 of the Rules of Professional Conduct. But, lawyers can't be responsible for everything beyond their control. A major disaster or unexpected fire can create many problems, but the lawyer can't be faulted for that unless there was some negligence on the lawyer's part. The American Bar Association has issued an opinion recently on this very issue of what to do if there is a problem caused by an unexpected disaster. That opinion is found at American Bar Association's formal ethics opinion 482, which was released in September. The opinion discussed more than just what to do in terms of obligations if files are destroyed. The opinion also addressed a lawyer's ethical obligation in terms of soliciting victims of natural disasters as clients.

The opinion notes that lawyers perhaps should have appropriate insurance to cover disasters, have some policy for file retention, and suggest plans to take steps immediately after a disaster to learn what was damaged and attempt to rectify the situation.

The opinion initially notes a lawyer has the duty to communicate with clients by phone, paper, or electronically on the issue. Lawyers should have a client's contact information readily available. The lawyer has to notify clients if the lawyer is going to be able to continue to handle their case or if the lawyer is unable due to the problems with the interruption of the practice. The opinion suggests that the client be given a way to reach a lawyer during any natural emergency. The opinion notes that lawyers have to keep up with technology as required by Rule of Professional Conduct 1.1 to protect and store files and the lawyer also has to make sure there is no inadvertent disclosure under Rule 1.6 (the confidentiality rule) of client information.

The opinion addresses files that have been destroyed, but emphasizes the lawyer should perhaps store all their files electronically in advance so they can access them through a computer if there is a natural disaster. The opinion also emphasizes a need for confidentiality in such storage arrangements.

The opinion also emphasizes that lawyers have to be aware of court deadlines even if there is a disaster. Lawyers have an obligation to check with courts and also have their own system in place to assure deadlines are at least known if there is some sort of natural disaster.

In terms of monies the lawyer is holding in trust for clients, the lawyer has to maintain a way of being able to access those monies for the clients that need monies returned or paid. This places the burden on lawyers to determine if the financial institution will be affected by the disaster and take steps to have escrow funds transferred to another escrow account where funds can always be available for the client if needed.

The opinion emphasizes a lawyer should perhaps consider withdrawing from a case after a natural disaster if the lawyer is unable to continue representation because of damage to their office or the stress of the disaster.

The opinion addresses when lawyers move to another jurisdiction during the disaster at least temporarily and what they can do to assist their clients. The opinion emphasizes that the rules of the new jurisdiction must be looked at and the right to temporarily practice elsewhere under Rule 5.5 is limited.

The lawyer has a duty to notify clients if important documents are lost or destroyed, see Rule 1.4 of the Rules of Professional Conduct. The lawyer has an obligation also to try to reconstruct the file that was lost or damaged.

The lawyer has to maintain financial records of their clients' funds for five years. Again, the rule notes that a lawyer must try to reconstruct those records if lost for a five-year period. The opinion states the lawyer should maintain electronic copies of all important documents in off-site location. Although that's what the opinion suggests, the Pennsylvania Rules of Professional Conduct do not require that. But, obviously, this is a good proactive suggestion.

The opinion then addresses soliciting and advertising by lawyers for persons who have been the victims of some sort of disaster. The opinion emphasizes a lawyer still has to comply with the Rules of Professional Conduct and there can be no in-person solicitation. But, the opinion does give an exception for a lawyer to solicit in-person if they are offering pro bono legal services to disaster victims. Lawyers from other states who come in to represent disaster victims have to comply with the jurisdiction rules and ethics and seek pro hac vice status. Although the opinion is generally written, it sets forth good ideas and plans so a lawyer can be prepared to some extent if a flood or hurricane or fire or some sort of explosion would prevent access to files or destroy files. The ideas are good and sound. But, in terms of how realistic they are in terms of the everyday life of a small practitioner remains to be seen. But, the suggestion of starting to use more electronic files is not a bad one. Of course, many lawyers do that and scan their files. Many lawyers who are older still primarily use paper files. But, at least the suggestion of electronic scanning should be considered by all. All lawyers should review this opinion because it does provide good general guidance as to how to maintain one's office and protect one's clients. The obligations of a professional are more encompassing than the obligations of just owning or running a business.

Judicial candidates need to be aware of rule updates.

I want to run for judicial office in 2019, what can I do and what can't I do now?

Since the new Code of Judicial Conduct was adopted four years ago, there's been changes in the rules for judicial candidates. A major change: one can start much earlier in raising money and campaigning. A candidate for judge is now allowed to start the day after the General Election the year before the judicial elections, see Code of Judicial Conduct Rule 4.4(b)(2) and Rule 4.2(b). The rule notes there can be no solicitation or acceptance of contributions earlier than the day after the General Election the year before the judicial elections. Under Rule 4.4(c)(3), a judicial candidate must comply with all statutory requirements for disclosure, campaign contributions, and must file with the secretary of the commonwealth a report stating the names, addresses, occupation, and employer of each person who made a campaign contribution to the committee to the Judicial Committee in an aggregate amount exceeding $250. If the contribution is less than $250, but more than $50, then the name and address of each person has to be given. The judicial candidate is never allowed to solicit contributions personally (Rule 4.1(a)(7)). Also, the Election Code prohibits receiving contributions in cash that exceed $100.

But, there is no prohibition preventing the judicial candidate from placing his funds into the campaign committee even if it's before the starting date, the date after the General Election. Therefore, a person can have a campaign committee in advance, but just can't solicit, accept funds or have fundraising activities until the starting time period the day after the General Election the year before.

Before the time a campaign is open, a candidate cannot go to political functions or speak or things of that nature. A candidate for judicial office can, however, advise political leaders and committee members and others of their intention to run. But, the formal campaign cannot start until the day after the General Election the year before. A judicial candidate is defined under the definition section of the Code of Judicial Conduct. The definition includes any person including a sitting judge who is seeking appointment, election or retention to the judicial office. The definition in the Code of Judicial Conduct states a person becomes a candidate for judicial officer as soon as he or she makes a public announcement of the candidacy, declares or files as a candidate with the appointment or election authority, or where permitted, engages in solicitation or acceptance of campaign contributions or support or is nominated for appointment or election to office.

Therefore, as soon as one opens that campaign committee and starts to solicit funds, they are a judicial candidate. A judicial candidate cannot hold party offices (See Rules 4.1 and 4.2).

Under Rule 4.3, a candidate for appointment to a judicial office may communicate with any screening authority and make seek endorsements for the appointment during that relevant time period.

Rules 4.1 and 4.2 of the Code of Judicial Conduct ought to be reviewed by any judicial candidate since they discuss campaign activities. A person who is seeking judicial office can't be a leader or hold office in a political organization once they start their campaign. They cannot make speeches on behalf of the party or for other candidates. They can't endorse or oppose candidates for other office. They can once they are a candidate and during the permissible time period purchase political tickets and use campaign contributions. They cannot use judicial staff or any other public resources for their campaign. That is not only an ethical violation, but could bring some criminal charges. Therefore, campaign activity such as copying campaign papers or using judicial email are forbidden.

A judicial candidate cannot be reckless with disregard for the truth when making campaign statements (Rule 4.1(a)(9)).

Under Rule 4.2, a judicial candidate has to act with independence, integrity and partiality at all times. A judicial candidate has the obligation to review and approve the contents of campaign statements and material authorized by the candidate. If the Judicial Conduct Board receives complaints about statements by judicial candidates or in campaign literature, the Judicial Conduct Board will look at it and review these complaints very seriously if they state improper or incorrect material. Rule 4.2 then talks about establishing a campaign committee.

It's also important for a judicial officer to know the amounts contributed to their campaign because there are recusal rules that may be triggered by the contribution. Rule 2.11 of the Code of Judicial Conduct involves judicial disqualification. Code of Judicial Conduct Rule 2.11(4) states a judge should consider the public's perception regarding contributions and the effect on the judge's ability to be fair and impartial. There is a rebuttal presumption if the contribution is less than $250, then no disqualification would be required. The total amount raised by the judge is often compared to the individual contribution. If someone gives $300 and the judge raised $1 million then there is probably not going to be a need for a recusal. If the judge raised $100,000 and the lawyer gave $25,000 or $30,000, then a recusal would clearly be warranted.

In conclusion, it is every judicial candidate's duty and responsibility to comply with the Code of Judicial Conduct and, of course, all campaign rules and regulations. The most important rule is no campaigning and no raising or soliciting funds prior to the General Election held the year before a judicial campaign. There is some activity that a judicial candidate can do during that earlier stage. But, campaigning or actively raising money or actively paying for political tickets or going to political meetings before that General Election date could create some serious problems for the judicial candidate.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.