Vol. 79, No. 6, June
Preparing a Disaster Recovery Plan
There's no better time than now to
plan how your law practice will recover should the unthinkable
by Thomas J. Watson
Thomas J. Watson, Marquette 2002, is director of
communications at Wisconsin Lawyers Mutual Insurance Co., Madison.
We all saw the devastation caused by Hurricanes Katrina and Rita last
year in the Gulf Coast. We know what Mother Nature can do to property
and human lives. We don't worry about having hurricanes in Wisconsin,
but that shouldn't stop you from thinking about a disaster recovery plan
for your law practice. And there is no better time to consider it than
According to the National Weather Service, more tornadoes have hit
Wisconsin in the month of June (370) than in any other month. For all of
2005, there were 62 tornadoes in the state, 19 more than the previous
record set in 1980. You may not think it can happen to you, but don't
tell that to the residents of Stoughton, just south of Madison, who were
hit last August, or those who lived through the Barneveld tornado in
1984, or the survivors of tornadoes that have struck other locations
throughout our state.
Planning now can save you from interrupted client services, missed
deadlines, or lengthy office downtime. All of those can result in losing
clients and money, or even result in a malpractice claim.
Expect the Unexpected
Anticipate the possibilities. Even if you never worry about
weather-related destruction, there are other business interruptions you
must consider. What could go wrong? A law partner with a large caseload
could have a serious illness and miss work for weeks or even months.
Could you handle the extra work yourself? Your computer system could
crash. Could your office continue operating seamlessly with a technology
failure? What if you lost critical files? Could you recover them?
Visit the Law Practice
Management area on WisBar
a variety of practice management tools and information that you can use
in making your own disaster recovery plan. While visiting WisBar,
subscribe to Practice411, an electronic list where State Bar members can
share information, ask questions, and connect with a panel of experts
when tackling business and technology aspects of their practices. For
more information, contact the State Bar at (800) 728-7788 or (608)
Reid Trautz, a lawyer and director of the District of Columbia Bar
Lawyer Practice Assistance Program who spoke in Wisconsin last fall as
part of a law practice seminar, tells the story of a Virginia lawyer who
recently was the victim of a fire in his office building. "He had no
electricity and therefore no computer service. He had to set up a
computer network from his house. The sprinklers in his office went off
during the fire, creating flooding problems. These are things you don't
think about until they happen to you."
Severe weather or even an office fire could happen at any time. Even
the slightest interruption to your practice could be a disaster.
According to a University of Minnesota study, more than 90 percent of
businesses that are without access to their data for more than 10 days
file bankruptcy within one year of the disaster.
If your practice were shut down, even for a short time, the results
of that downtime could be devastating. They include:
- loss of income and clients,
- loss of potential income and potential clients,
- lost productivity and idle employee costs,
- unanticipated business expenses,
- missed deadlines and appointments, and
- malpractice claims.
Planning Can Make the Difference
The top four causes of business failures are neglect, disaster,
fraud, and the unexpected event. Preventing neglect and fraud is
something you can control. But preventing a disaster or an unexpected
event is out of your hands. While you cannot determine if or when those
events could affect your practice, don't leave yourself open to a
malpractice claim simply because you did not plan in advance. Failing to
plan can bring down any law firm.
Even in the event of a business interruption, your professional
responsibilities to your clients continue, including on-going
communication, diligent representation, and confidentiality. Your cases
are not put on hold. Clients do not reduce their expectations. You have
the same professional responsibilities you had before your practice was
interrupted - whether it was caused by a fire, a computer failure, or
the sudden departure of one of your firm's partners.
Many law firms commit some of the same common mistakes, all of which
contribute to a lack of disaster preparedness. Common mistakes include
- no backup of client files,
- inadequate backup of computer files and programs,
- no current list of clients with open cases,
- untimely filing due to storm-related issues,
- no backup of accounting records regarding fees paid and earned,
leaving the lawyer and client with nothing to establish the
reasonableness of fees, and
- unrecorded, and thus lost, contingency fee contracts.
Have a Good Business Continuation
A good business continuation plan will include a set of procedures
that defines how your office will continue to operate and how it will
recover its critical functions in the event of an unplanned disruption.
Some lawyers, especially sole practitioners and those in two- or
three-lawyer firms, complain that they don't have the time needed to put
together a business continuation plan. In a small office, time away from
clients costs them money. But there's an old saying: billable time
determines your income; nonbillable time determines your future! You
cannot afford not to have a plan.
When developing a business continuation plan, the cheapest
alternatives are not necessarily the best alternatives. When do you want
to be back up and running? Establish a target recovery time for your
practice. Do you want to be operational within four hours? One business
day? 48 or 72 hours?
Establish an evacuation procedure and a plan to notify and account
for all employees. Include in your plan steps to be taken if telephone
service is unavailable, and allow for the possibility of meeting
employees at a specific location if your office is not accessible. All
employees should have a written copy of your business recovery plan and
should be aware of their responsibilities in carrying it out. In
addition, keep a current directory of employees' home addresses, phone
numbers, and emergency contacts. Finally, arrange for an alternative
work site so that you can continue operating even if you cannot access
There are several key elements to a business continuation plan. They
include protecting your electronic data as well as your paper files.
Establish program backup procedures, test them regularly, and store the
backup data off site. You don't want to discover during a disaster that
your data backup system is faulty. Trautz says nothing is more important
than backing up your computer data. "You have to be able to continue to
communicate with your staff, your clients, and your office vendors. That
is essential. Those are the people who help you stay in business."
There are several steps you should take to protect paper files
before your business is interrupted. Define and identify vital
records, those that are essential for your business to continue
operating. Scan active files and store the copies off-site. You can
store paper files in your office, but keep them in locked metal cabinets
that are off the floor, away from areas that potentially could suffer
water damage. Contract in advance with a document recovery service. Make
sure the service has expertise in and equipment for salvaging and
restoring paper documents. Evaluate the security of off-site records
storage. Is the facility staffed? Does it have a sprinkler system and a
fire alarm? What insurance does the facility owner carry to cover your
Finally, review your property insurance coverage. Does your policy
cover building contents as well as the structure? Do you have coverage
for business interruptions and extra expenses?
Avoiding Malpractice Claims
Excellent office practices mean better and more reliable client
service and put you in the best position to weather the storm - and
ultimately, to avoid a mistake that could lead to a malpractice claim.
When you are confronted with an interruption in your practice, no matter
how large or small, whether caused by fire, tornado, computer crash, or
the long-term absence of a key partner, how well you prepared for that
interruption will determine how you get through it.
When the interruption occurs, you may have to call a trusted lawyer
to get an outside perspective. You may have to report a potential
malpractice claim if you think you may have missed a deadline (or
worse). It may be necessary to let the client know what went wrong. And
you may have to transfer some work to another lawyer. After the dust
settles, figure out what worked and what didn't work. Fix what didn't
work. Audit your files.
If your files are organized and you have taken the steps necessary to
preserve them, and you have prepared your staff and your office
operations for a potential disaster or business interruption, your
recovery period may be short. That is your goal - avoid lengthy
downtime. The sooner you are back up and running, the more likely you
are to continue providing reliable, uninterrupted client services.
Disaster recovery plans are all about your obligations to your
clients, your staff, and yourself. They are about making sure your
future is secure, even in the face of uncertain future events. Don't put
off planning now with the assumption that you have plenty of planning
time later. A disaster or a minor office interruption can happen without
warning and cost you money and emotional heartache.
Planning and preparation can minimize the impact on your practice.
Remember: billable time determines your income, but nonbillable time
determines your future.