Preparing for the worst: re-envisioning disaster legal relief in the era of homeland security.

• Author: Davis, Martha F.
• Position: New York

INTRODUCTION

The New York legal community's response to the September 11th disaster defies the usual stereotypes of the legal profession. Ambulance chasers and sharks were in short supply. Instead, in the weeks and months following the World Trade Center attacks, New York's bar channeled an unprecedented outpouring of support into uncompensated pro bono efforts on behalf of victims and their families. While pro bono assistance was available to all victims, special attention was given to matters facing needy individuals that would not generate fees. (1) The bar even stood behind efforts to minimize the subsequent litigation, with the American Trial Lawyers Association ("ATLA"), through its subsidiary Trial Lawyers Care, offering free counseling to family members considering pursuing monetary relief through the federal Victims' Compensation Fund. (2)

As described in Public Service in a Time of Crisis: A Report and Retrospective on the Legal Community's Response to the Events of September 11, 2001 (hereinafter, the ABCNY Fund Report), (3) there is little to fault in the bar's response to the September 11th disaster. Bar leaders worked under extreme pressure--in some instances, having suffered losses themselves--to devise a sound approach to assisting with others' needs. The "facilitator" model of providing advice and representation was a sensitive and effective solution to the problem of clients facing multiple issues and multiple lawyers representing a single client. And literally thousands of lawyers donated time and resources to provide legal assistance to those in need. (4) In short, the New York bar's disaster response deserves consideration as a national model for such efforts.

At the same time, as tremendous as the bar's response was, it is worth examining on a more systemic level the national approach to providing legal assistance in disasters. In the current global political climate, we can anticipate that there will be more disasters giving rise to legal needs, including attacks by domestic or international terrorists. Given this heightened need for disaster preparedness, efficient, non-duplicative use of legal resources is a key issue. There is much to learn from the ABCNY Fund Report in that regard. Nevertheless we should also consider whether there is an even more efficient and comprehensive way to administer legal assistance in the context of a disaster.

As reflected in the New York experience, disaster legal relief across the United States is typically handled by private pro bono practitioners who mobilize quickly after the disaster strikes. Considering that pro bono legal work generally serves three overlapping purposes: 1) providing legal assistance to the client(s); 2) expanding individual lawyers' visions of their role in the community and society; and 3) raising the profession's standing with the public (5)--we should at least ask whether each of these purposes are being best achieved by the current approach to disaster legal services. (6)

First, in terms of providing actual assistance to individuals, the New York City bar had tremendous success in mobilizing a legal response to the September 11th attacks. The overall numbers are impressive. But numbers do not tell the whole story. In New York and elsewhere, pro bono lawyers providing disaster legal services often lack expertise in the relevant areas and may have little prior experience with the client community affected by the disaster. Both of these factors may affect pro bono attorneys' ability to reach and to assist clients, even if the bar's mobilization efforts are effective in enlisting volunteers. (7) Further, New York City's experience may be sui generis. Collectively, the New York City bar has extraordinary resources. No other community in the United States would be able to call upon such a high level of private legal resources--both in terms of numbers and caliber--in the event of a disaster. (8) Finally, while the New York bar apparently avoided demoralizing turf battles and the inefficiencies that accompany them, other communities--in all likelihood, those without such extensive resources to draw on--might not be so fortunate. (9) In sum, the New York experience was extremely positive in assisting clients, but it is not clear if other smaller, less resource-rich communities would have similar success.

Second, in terms of expanding individual lawyers' vision of their own capacities and roles in the community, the New York Bar's mobilization efforts were clearly a short-term success. The ABCNY Fund Report chronicles the unprecedented level of voluntarism from the bar in the wake of the terrorist acts. Many volunteer lawyers responding to a later survey described their pro bono experiences in glowing terms. (10) But now, according to the ABCNY Fund Report, "the rush of legal volunteers has diminished." Since the initial wave of volunteers, "it has been difficult to staff some opportunities, especially those involving a loss of income and requiring special expertise to pursue, such as workers' compensation and landlord/tenant matters." (11) The New York effort was a short-term reaction to an immediate disaster. It did not encompass any long-term strategy of connecting these newly motivated volunteers with organizations that provide legal services day-in and day-out. Through training, mentoring, and creating personal connections between public interest lawyers and private bar volunteers, could disaster legal relief efforts do a better job of ensuring that volunteer lawyers are not just one-time pro bono participants?

Finally, from the perspective of the profession's public standing, despite all the good the bar did after September 11th, this outpouring of pro bono assistance does not seem to have had a permanent effect on the public perception of the legal profession. The legal profession remains one of the least trusted of the professions. (12) It only takes a few counterexamples such as the tasteless ads in the wake of the Staten Island ferry disaster (13) or the ethically challenged lawyer Alan Shore on the television show The Practice, (14) to eclipse the good work of pro bono advocates. Given the apparent intransigence of the legal profession's negative image, is improving lawyers' public image really an attainable goal of pro bono work? Or could a different system of disaster legal services delivery better contribute to a more sympathetic picture of the legal profession?

In this essay, I will explore whether, despite the New York bar's inspiring model, securing more comprehensive federal support of post-disaster legal services on the national level should be a long-term goal of the legal profession. There are many questions, not all of which can be answered here, that should be debated before such a goal is adopted. But given the heightened prospects for more disasters, we should at least start asking the questions.

For example, what would be the costs and benefits of harnessing federal resources to provide more institutionalized legal services to disaster victims on a national basis? Through existing legislation, the federal government has already acknowledged that it has the responsibility to provide legal services following a national disaster. Yet federal funding is currently extremely narrow in scope, limited to a tiny subsidy to offset the administrative costs of the American Bar Association Young Lawyer Division's post-disaster pro bono work for low income disaster victims. Given the substantial federal support for other aspects of disaster relief (15)--and the national impact of many disasters--the government's reliance on "a thousand points of light" to provide critical legal assistance seems risky at best. What would it cost to adopt a different model with greater government support?

If federal support for post-disaster legal services were to increase, how should those funds be administered? Rather than create a new institution, should disaster legal services be administered through the bureaucracy developed to administer federally funded legal services for the poor ("Legal Services")? Certainly, legal assistance to disaster victims is consistent with Legal Services' original mission. At the inception of federally funded legal services in the 1960s, Legal Services proponents anticipated that this new lawyer corps would be at the forefront of providing efficient, client-centered and holistic legal services to those who could not afford representation. (16) Echoing this longstanding poverty law approach, leaders from the City Bar and other New York City legal organizations providing disaster legal services reached a consensus that "families should have an individual lawyer who would work with the family on an ongoing basis and provide that family with comprehensive legal services, either directly or by coordinating services through experts in specialty areas." (17)

Would greater involvement of federally funded Legal Services in post-disaster legal relief efforts serve the profession's goals for pro bono work? It certainly bears further consideration. On the one hand, greater involvement of Legal Services might improve client services, expand individual pro bono lawyers visions by connecting them with the public interest law community, and burnish the profession's image by situating pro bono work within a more systemic effort. At the same time, it might also place federally funded Legal Services on a firmer political and financial footing. Re-envisioning (and funding) Legal Services as the entity primarily responsible for coordinating and providing legal services to victims of disaster--ranging from the disasters of poverty and unemployment to terrorist attacks (18)--might insulate legal services from some of the more devastating challenges to its funding and mission. (19) Further, identifying federally funded Legal Services as a component of the national security infrastructure set up to deal with...