By Clifton Barnes

July-August 2010 Bar Leader Magazine

Incoming American Bar Association President Stephen N. Zack wants to address several key issues during his presidency, so why, at the ABA Bar Leadership Institute this past March, did he specifically point out disaster preparedness—and why is he still focusing so much attention on it?

Look no further than the day’s headlines. As he watched CNN, Zack saw image upon image of the destruction from the Haiti earthquake. As if that weren’t enough, he heard experts talk about the probability of a dirty bomb terrorist attack on the United States.

“We’ve heard over and over again that an attack on the United States is imminent—their word, not mine—from a nuclear dirty bomb,” Zack says. “After hearing that and seeing what happened in Haiti, well, we’re not prepared. It has to be one of our real, major focuses.”

Similarly, tornadoes and flooding in Arkansas, Kentucky, Missouri, Mississippi, and Tennessee in April and May reminded people of Hurricane Katrina, which devastated New Orleans and the Gulf Coast in 2005.

“What happened with Katrina is that the courts closed down, legal records were lost, the jails were unusable, and the entire justice system ground to a halt,” Zack says. “Before Katrina, we had nothing in place—absolutely nothing—to deal with disasters.”

The ‘Katrina Rule’
After Hurricane Katrina, the ABA put together a task force that eventually came up with a Model Court Rule on Provision of Legal Services Following Determination of Major Disaster—or what came to be known as the Katrina Rule, which was passed by the ABA House of Delegates in early 2007.

The impetus was that lawyers from around the country wanted to help victims of Hurricane Katrina, but the Louisiana Supreme Court said that would be an unauthorized practice of law. “That told us that we needed to have something in place before the next disaster,” Zack recalls. “The task force came up with the model rule to be adopted by all state supreme courts.”

Unfortunately, Zack says, that’s not what has happened. Only nine states have adopted the Katrina Rule: Arizona, Delaware, Iowa, Minnesota, Missouri, New Jersey, Oregon, Tennessee, and Washington. A few states have adopted similar Katrina-inspired rules or amendments. Another 18 states, including North Dakota, which had previously decided to adopt the rule, are still considering it, and two states—Michigan and North Carolina—have decided not to adopt it.

“Once the tidewater subsided, the task force ceased to exist, and no one paid any attention to the rule,” believes Zack, who urged bar leaders at the most recent BLI to go back to their supreme courts and get the Katrina Rule adopted.

“I think the reason it hasn’t been adopted in most states is because until there is a disaster, people try not to think about those things,” Zack says. “But it’s our obligation to be prepared for it.”

Zack says some may think they aren’t in a natural disaster zone prone to hurricanes, tornadoes, or earthquakes, and therefore feel they don’t really need the Katrina Rule, which would allow lawyers to provide temporary pro bono legal services to those in an affected area, as well as allow lawyers whose practices have been disrupted by a disaster to continue to practice law in an unaffected jurisdiction.

As the Katrina Rule is structured, there is no downside to adopting it, Zack notes. “Unless there is a disaster, it doesn’t go into effect,” he says. “There is no state that shouldn’t ultimately adopt it.”

Late last year, the Michigan Supreme Court decided by a 4-3 vote not to publish for comment a proposed major disaster rule. “Somehow, the justice system of this state has survived the absence of vague and indiscernible emergency rules for our first 17 decades,” says Justice Stephen J. Markham, “and I propose that we maintain that for another 17.” Three other justices, including one who changed her mind after Markham spoke against the proposal, agreed that the Katrina Rule is not necessary in Michigan.

“The justices determined that if a natural disaster situation arose in Michigan, the circumstances could be addressed by administrative order or otherwise to implement provisions tailored to the specific need,” says Anne Boomer, administrative counsel for the Michigan Supreme Court. “Ultimately, a majority of the court seemed to feel that the model rule was more than Michigan needed.”

Different types of disasters
Zack says he believes that the states that have rejected the Katrina Rule have done so in part because they haven’t really focused on the catastrophic disaster aspect. Natural disasters are only a piece of disaster preparedness, he adds.

“We certainly have to prepare for traditional natural disaster such as hurricanes, earthquakes, and things of that nature,” he says, “but there are other disasters we need to prepare for.”

The ABA and state, local, and special-focus bars need to be ready, Zack says, for an internal disaster, such as a kidnapping or a shooting at the bar itself, and for a catastrophic disaster, such as a dirty nuclear bomb being detonated.

“There are three different kinds of disasters that have three different kinds of responses, and unfortunately, we’re not prepared for any one of those disasters,” he says.

That’s why he has asked the ABA Finance Committee to include in the budget for the next bar year a tabletop exercise that would be coordinated by the ABA Special Committee on Disaster Response and Preparedness.

“It’s done by virtually every major corporation, where they have an artificial disaster, and everyone has an assignment,” Zack explains. “There will be a phone call where they will all meet at a predesignated area, and we’ll see, in the event of a disaster, whether we have what we need in place in order to respond to it.”

Zack expects the exercise would take place next spring.

(Article continued above.)

Determinations will need to be made about who, in the event of a real disaster, talks to the National Guard, the White House, the state supreme courts, the media, other bar associations, and the sections within the ABA. The type of disaster will determine what is said, Zack adds.

Of great concern to Zack is a nuclear disaster. “Will the president of the United States suspend habeas corpus as Lincoln did and as Roosevelt did?” he wonders. “What other civil rights will be at issue, and what is the response of the American Bar Association to those issues?

“We know what happened after 9/11, and we know there is a balance that needs to be achieved. That balance should be thought about at this time, and not in the heat of the moment.”

Zack has asked the ABA Section of Individual Rights and Responsibilities’ Committee on National Security and Civil Liberties to appoint a special subcommittee to review those types of issues and report to the ABA House of Delegates.

Involved with a broad spectrum of related issues will be the Special Committee on Disaster Response and Preparedness. Zack intends to appoint as chair David F. Bienvenu, who went through Hurricane Katrina as a partner in the New Orleans law firm of Simon, Peragine, Smith & Redfearn.

One idea came as a result of Zack not being able to reach Bienvenu after Hurricane Katrina. “I couldn’t reach friends of mine like David Bienvenu and Judy Perry Martinez for weeks after Katrina—I didn’t even know if they were alive or dead,” Zack recalls.

“One of the things we’re talking about doing is having a billboard number so that when somebody can get to a phone, there is a number they can call and be posted on a billboard. That one phone call can disseminate information to all about what their needs are.”

He says there is virtually no cost, and that it is a member benefit that the ABA should have in place soon. Local and state bars should have such devices in place for emergencies, he advises, and should look at potential situations that would specifically relate to their location.

A recent case in point
For example, bars in Florida need to deal with the influx and needs of immigrants after disasters such as the recent earthquake in Haiti.

As a result, the Florida Bar has asked each member to donate the equivalent of one billable hour to relief efforts. The Florida Bar Foundation approved nearly $300,000 in grants to provide legal aid to Haitians applying for temporary protected status.

On the local level, the Orange County (Fla.) Bar Association, through its Legal Aid Society, has helped start and sponsor the Haitian TPS Project of Central Florida, which offers bimonthly legal clinics so that Haitians who have fled the country will be able to receive free legal assistance in preparing a TPS application.

The Dade County Bar Association was the first bar in the country to ask the federal government for a declaration of temporary protected status for eligible Haitian nationals. The county is home to the largest population of Haitian immigrants and nationals in the state.

Soon after the earthquake, Steven Befera, then-president of the DCBA, sent out a letter to members announcing Haiti disaster relief efforts. Within two weeks after the earthquake, the DCBA held a seminar with a capacity crowd of 90 lawyers learning how to assist Haitians seeking to apply for TPS. In March, the bar sponsored a live seminar that was attended by 65 in person and 50 over the Web.

As a result of the efforts, Mayra Joli, chair of the DCBA Immigration Law Committee, says many Haitians in desperate situations have been helped.

One 25-year-old Haitian lawyer had a building collapse on her, and she was buried for about 48 hours. She lost her left leg from the knee down. Her kidneys collapsed and her lungs were failing. Someone got her on an ambulance plane that brought her to a Florida hospital.

“She’s alive because she came to the United States,” Joli says. “She entered with a permit that would allow her to stay for six months. But she has a very long rehabilitation process. She has to learn how to live without one limb—and that’s something that can take more than six months.”

Lawyers are working to get her status changed to humanitarian parole, where someone can stay longer because of a compelling emergency.

Some of the stories revolve around reuniting rather than staying. DCBA members have been helping a Haitian dentist who lost her husband, her house, and her livelihood in the rubble. She has a 5-year-old child, who is an American citizen, with her in Florida and two children, 10 and 11, who are Haitian nationals and were left in Haiti with strangers. Lawyers are working to get the two children in Haiti reunited with the family in Florida.

“There are tons of stories,” Joli says. “Each one of them is like a book.”

Zack, who once was president of the DCBA Young Lawyers Section, has been very supportive of the efforts, Befera notes. Zack says it’s an ongoing effort from the local level to the national level. In fact, the ABA has been contacted about helping to re-establish a system of justice in Haiti.