Reflections on "public service in a time of crisis".

• Author: Maute, Judith L.
• Position: New York

INTRODUCTION

The New York and national legal community are to be commended for their organized, systematic response to 9/11. This Volume of the Fordham Urban Law Journal affords a valuable opportunity to consider the lessons derived from disaster legal assistance, both to improve on the crisis response model and to design systems for ongoing delivery of pro bono services in the absence of dramatic, precipitating events.

Disasters come in many sizes and forms. As usually defined, the word "disaster" refers to "a calamitous event, especially one occurring suddenly and causing great loss of life, damage or hardship, as a flood, airplane crash, or business failure." (1) Disasters can result from forces of nature, from human actions, or a combination of both. Bombings, massacres, and similar terrorist attacks inflict large-scale loss of life, serious injuries, and property damage. (2) Natural disasters such as earthquakes and tsunamis may take an ever greater toll, killing tens if not hundreds of thousands of people and destroying billions of dollars worth of property. (3) Smaller scale disasters also regularly occur: wildfires, tornados, train wrecks, bridge collapses, and maritime accidents. Sudden, dramatic, and horrible disasters prompt extraordinary volunteerism from the entire community. In all walks of life, ordinary time is suspended, riveting attention to the crisis at hand. Everyone feels compelled to do whatever they can to help, including those in the legal community. (4)

Whatever the cause, all of these events are physically dramatic, and result in extensive personal, property, economic, and environmental harm. Public response varies with the extent of loss, moral outrage, and the community's sense of violation. The events of 9/11 shocked the nation and much of the world. Firefighters became national heroes because they could do something tangible: search, rescue, and remove the dead for burial.

The legal community's remarkable response to the terrorist attacks of September 11, 2001 should be viewed in that context. As trained professional technicians, skilled at designing creative solutions to vexing problems, lawyers were prompted to help to alleviate the human suffering. Serendipitously, New York's first ever Access to Justice Conference was scheduled to begin in Albany the morning of September 11, with over 250 participants concerned about delivery of legal services scheduled to attend. (5) Because the conference machinery was set in place, and committed lawyers physically present (and out of harm's way), the fortuitous timing enabled prompt organization of disaster legal assistance. Thus, although the enormous losses from the attacks required an unprecedented level of disaster legal assistance, New York's legal community, which had long paid thoughtful attention to its pro bono responsibilities, (6) rose quickly to the challenge.

This Essay reflects upon the lessons learned from the legal community's massive effort to help sort out the legal problems of those affected by the tragic events of 9/11, and then applies those lessons to the challenge of designing delivery of pro bono services for less spectacular and hence less sympathetic disasters. It considers what design strategies were particularly effective, how these pro bono efforts were different from other disaster relief legal programs, and how these experiences can inform nationwide deliberations on expanding Access to Justice. The greater challenge for the legal profession is in delivering sufficient and sustainable pro bono legal services for everyday disasters, such as poverty, homelessness, substance abuse, crime, domestic violence, and deprivation of civil liberties. These disasters are not as sudden, dramatic, or immediately damaging, hence they do not provoke a national outpouring of empathy, generosity, or volunteerism. And yet, these ordinary disasters result in enormous untold harms to those affected. Maybe, just maybe, what the legal community has learned about disaster legal assistance could be used to create ongoing systems for pro bono delivery of legal services to alleviate the harm of quiet disasters suffered on a daily basis.

1. EARLIER RESPONSE OF ORGANIZED BAR TO MASS DISASTERS

   1. Mass Torts: Trains, Planes, Buses, and Hotels

      The legal profession's strict anti-solicitation rules have historically evoked strong disciplinary responses against the offending lawyers, often at the behest of counsel for prospective civil defendants. (7) Where there is probable legal blame for a mass disaster resulting in many deaths, personal injury lawyers are well-situated to gather evidence and seek representation of victims and their families. Lawyers retained immediately after the event may represent many clients, justifying the costs of expensive investigation into causation and liability. (8) Significant strategic advantages inure to those who are first to file. Reports of lawyers descending on the disaster site, picking through debris and human remains, and intruding on private grief evoke images of vultures, preying on the misfortune of others for their own financial gain. Burnele Powell uses the pejorative term "the parachuting practitioner" to evaluate the reaction of the organized bar, with disaster response teams designed to insulate vulnerable persons from unethical solicitation by out-of-state lawyers or their runners. (9) He concludes that journalistic anecdotes of egregious lawyer misconduct are not empirically substantiated, (10) and that response teams are "more significant as public relations efforts than as meaningful efforts to promote professionalism within the bar or to respond to authentic demands for consumer protection." (11) Some state ethics rules have imposed a moratorium, prohibiting any communication by lawyers seeking to represent injured persons for a short time after a traumatic event. (12)

      Of course, plaintiffs' lawyers are not the only representatives of potential litigants at the disaster site acting in their self-interest. Lawyers and investigators for the prospective defendants also whip into action, gathering evidence and preparing their defense strategy. (13) For example, in what became known as the "Delta plan," airline representatives were immediately dispatched after a crash to assist the victims and their families using every available means. (14) Representatives of these "bonding teams" arranged for hotels, attended funerals, and developed personal relationships with the family members. (15) "Treat the victims and their families with all the compassion a corporation can muster. And if that doesn't work, show them just how painful a lawsuit can be." (16) These efforts were not merely humanitarian, but also aimed to deter lawsuits and gather sensitive information about victims that could be used to mitigate damages in any ensuing litigation. (17) Representatives of insurance companies have been reported to contact potential claimants in efforts to secure early settlements, perhaps at a fraction of their fair value. (18)

      Dean Powell opined that disaster response teams may handicap plaintiffs' "efforts to secure counsel to protect their interest, [while] the defendants have been looking to their legal and financial exposure from day one." (19) Accordingly, he recommended that the organized bar refashion its efforts to "postdisaster assistance teams," to provide legal services, communicate with the media about the relevant law, and coordinate protection of the disaster site. (20) His views presaged what was to come, in Oklahoma after the Murrah Building bombing, in New York, and elsewhere.

      At least for airline disasters, the legal framework has changed substantially. In 1996 Congress enacted the Aviation Disaster Family Assistance Act, which prohibits any unsolicited communication for forty-five days after an accident, by any lawyer or potential party to litigation. (21) A subsequent amendment calls for creation of a task force to create a model plan for accident response. (22) While there are some uncertainties as to its effectiveness, at least the law anticipates that immediate efforts are to be focused on humanitarian assistance and formally protects grieving families from intrusive contacts. (23)

   2. Natural Disasters: Earth, Wind, Fire, and Water

      Response to natural disasters is of a different sort, because the precipitating event did not result from human intervention, or if it did, the harm escalated through interaction with natural forces. (24) Before the New Deal, local governments and private groups dominated disaster relief programs. (25) A complex web of federal programs proliferated until 1979 when President Carter consolidated nearly thirty entities into the Federal Emergency Management Agency ("FEMA"). (26) Now, when the president declares an area a "federal disaster," FEMA steps in "to provide an orderly and continuing means of assistance by the Federal Government to State and local governments in carrying out their responsibilities to alleviate the [resulting] suffering and damage...." (27) By the terms of a 1978 agreement, when FEMA activates disaster legal services, the Young Lawyers Division of the American Bar Association undertakes to organize pro bono legal assistance. (28)

      FEMA provides a range of services: emergency assistance to save lives, protect property, ameliorate threats of continuing harm, and provide temporary housing assistance and lump sum cash grants for essential needs (housing repair, personal property loss, transportation, medical, and funeral costs). (29) The Small Business Administration and Department of Housing and Urban Development provide low-interest disaster loans and rental housing vouchers to income-eligible victims displaced by disasters. (30)

      It appears that most of the natural disaster legal assistance relates to property damage: home and car insurance, mortgages, landlord/tenant issues, and dealing with contractors. (31) Nevertheless...