Normalcy after 9/11: public service as the crisis fades.

• Author: Engler, Russell
• Position: New York

INTRODUCTION

There is much to celebrate regarding the legal community's response to the legal needs arising out of the September 11, 2001 attacks. (1) Chief Judge Kaye rightly delights in the picture of "the Bar at its finest, its shining hour; thousands of lawyers, paralegals and staff, hundreds of thousands of hours enthusiastically volunteered for the public good." (2) As the Report's introduction summarizes, and the body of the Report details, the response of the legal community was "fast, thoughtful, comprehensive and creative." (3) The raw numbers are impressive. Volunteer lawyers represented more than 4,000 individuals and families who were affected by the disaster. (4) Approximately 3,000 lawyers received September 11th training through the City Bar and in-house law firm programs. (5) Over 2,800 lawyers registered on the ProBono.net, a 9/11 website, to gain information and resources. (6)

The raw numbers are only the beginning of the story of the legal community's response. "[T]he institutions that make up the New York area legal community collaborated in ways never previously imagined. Where turf battles once existed, cooperation prevailed." (7) Chief Judge Kaye observes in the Report's Foreword that the Report itself is an "extraordinary primer"--"a comprehensive textbook on how best to deliver pro bono services!" (8) Each chapter is filled with information crucial to those who might attempt to glean lessons from the 9/11 experience and translate them to other endeavors. The Report sets forth the "Foundations of the Legal Community's Response" (9) and describes the rich variety of "Specific Projects Designed to Aid Victims." (10) The Report turns to "Ongoing Efforts and Unmet Needs" (11) before describing "Survey Results" of the volunteer lawyers and organizations that responded to the crisis. (12)

The final part of the Report offers eighteen lessons learned, in the "hope that the 9/11 legal response will be an instructive example for future legal relief efforts." (13) The lessons are divided into three categories: "Responding as a Community"; (14) "Responding to a Disaster"; (15) and "Improvements for the Future. (16) Chief Judge Kaye's only disagreement with the "Lessons Learned" is that she sees not only eighteen lessons, but "hundreds of lessons ... for organizing, delivering, and overseeing pro bono services." (17)

As we celebrate the unprecedented achievement of the legal community in the aftermath of the September 11th attack, we should examine the achievements with a critical eye. The evaluation should not be limited to the year following September 11th. Rather, as the crisis "fades" and the profession, along with the rest of the world, settles into "normalcy" post-9/ll, the questions become more difficult:

Despite the extensive response of the legal community, to what extent did the response prove inadequate? (18) To what extent does the unique nature and magnitude of the September 11th disaster render the impressive response something we cannot replicate, even to a lesser degree? (19) Even to the extent the response was successful, to what extent did the response constitute a diversion of existing resources from other endeavors, rather than an overall increase in pro bono and public services efforts? (20) If the Report is to serve as a primer for legal communities, what lessons from the response to September 11th can be applied to other settings, and how can we apply them? (21) Although it seems unpatriotic to raise questions as to the ultimate success of the endeavor, I do so despite my complete admiration and respect for the efforts of those inside and outside the legal community who responded immediately, creatively, and tirelessly to the horrific events of September 11th and its aftermath. I do so in the spirit of the implicit challenge of Chief Judge Kaye's Foreword to the Report, where she notes: "the fact is that for families facing homelessness, or eviction, or deportation, or foster care, or innumerable other life challenges, every day is also a time of crisis." (22) The success of the legal community's efforts must therefore be measured not only by analysis of the response to the 9/11 crisis itself, but also by consideration of whether the lessons learned pave the way for an improved response by the legal community to the legal crises facing countless families every day.

1. ONGOING EFFORTS AND UNMET NEEDS

   A primary reason to identify lessons learned from the legal community's response to the 9/11 crisis is to create the possibility that the achievements of the 9/11 effort can serve as a model to solve legal problems arising from other crises. (23) It is sobering to recognize that, despite the impressive successes achieved by the legal community's responses to 9/11, the efforts have fallen short. (24) The shortest portion of the Report is Part III, titled "Ongoing Efforts and Unmet Needs." (25) In contrast to Parts I and II, covering over twenty and thirty pages respectively, Part III consists of one-and-a-half pages. Some of this is inevitable, as the Report focuses "on the period of time from September 11, 2001 through approximately the end of 2002." (26) As a result, the brevity of the reporting reflects in part the dearth of information regarding the efforts after 2002, which are beyond the scope of the Report. The Report notes the continuing work of many of the pro bono and legal services organizations that were involved from the outset of the crisis.27

   The brevity of Part III, however, also reflects difficulties in sustaining the response and continuing to address unmet legal needs. (28) The Report describes three categories of legal needs that remain unaddressed:

   [T]hose who suffered economic harm from the fallout of 9/11 but lacked a sufficient nexus to the actual events of 9/11 to qualify for economic assistance programs; immigrants who suffered directly from the events of 9/11 (and would qualify for such assistance) but who were afraid, because of their immigration status, to come forward and take advantage of the resources that were available to them; and immigrants who were detained either immediately after 9/11 or as a result of the special registration program implemented by the government in response to 9/11.29 Legal needs also remain unmet because they arose, or were discovered, later than the needs that were immediately evident in the wake of the attack:

   Later, organizations became more proactive, seeking to identify needs that might not be fully recognized or appreciated and seeking to reach out to those communities who had suffered but not come forward on their own. Some needs arose only later, either because of the extended economic downturn in new York City that followed 9/11 or simply owing to the fact that many needs only become evident after the passage of many months. (30) The more disturbing reason for the fact that legal needs remain unmet is the shortage of volunteers. (31) In stark contrast, the surge in volunteers in the immediate aftermath of the attacks was overwhelming. (32) For example, on September 25, 2001, Mayor Guiliani announced that volunteer lawyers would be needed to help survivors apply for death certificates. (33) More than 800 lawyers attempted to attend a training session at the City Bar Association scheduled within a day of the mayor's announcement.34 Since the City Bar Association's largest conference room held 500 people, roughly 300 volunteers were turned away from the initial training session. (35)

   As the crisis fades from public view, "the rush of legal volunteers has diminished." (36) Applications to the Victim Compensation Fund were due in December 2003, "yet a shortage of volunteer lawyers was reported as the application deadline approached." (37) According to the City Bar, "where once lawyers competed for volunteer opportunities, more recently it has been difficult to staff some opportunities." (38)

   The difficulty of sustaining a response to a crisis is not unique to the response to the September 11th crisis. For example, Maria Foscarinis offers a moving account of efforts to combat homelessness. (39) She describes how, in response to the growing crisis of homelessness, advocates embarked on a campaign to achieve an emergency federal legislative response to homelessness, which at first achieved "immediate, positive results," but that "stasis ... followed the initial success." (40)

   During the 1980's, there was an enormous outpouring of public concern for the homeless. Newspaper articles carried frequent features depicting the plight of particular individuals or families. Concerned persons of all sorts volunteered to help. Lawyers became involved, first in the courts, then in Congress. But as homelessness persists, and continues to grow, there is a tendency towards acceptance: What was originally perceived as an intolerable crisis may be evolving into an accepted social condition. (41) Without belaboring differences between the crisis of homelessness and the crisis created by the September 11th attacks, (42) the pattern of a burst of organized activity involving all sorts of volunteers, including lawyers, yielding initial positive results, but giving way to stasis, is a pattern recognizable in the pages of the September 11th Report. (43) In one respect, the continuation of unmet legal needs presents a challenge for the legal community. To the extent the legal community can achieve successes in meeting the unmet needs away from the spotlight, after the crisis has faded and after stasis has set in, the lessons may prove to be the most useful primer of all. (44) At the same time, however, the continuation of unmet legal needs after 9/11 is a sobering reality. (45) If the overwhelming response to the 9/11 crisis fell short of meeting the needs, then even greater hurdles will face efforts to address crises that cannot be solved with an immediate burst of concentrated effort or are perceived as crises of a lesser...