Disaster response: Lessons—and an update—from Hurricane Katrina

Volume 33 Number 1

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Three years after Hurricane Katrina hit, lawyers are dealing with a new disaster—flooding in Iowa—but they, along with the public, continue to struggle with the effects of Katrina as well.

Dwight Dinkla, executive director of the Iowa State Bar Association, says his bar has been drawing on past experi-ences, including Hurricane Katrina, in order to assist recent flood and tornado victims, which include as many as 250 fel-low lawyers.

“One of the first individuals to contact me was Larry Houchins, executive director for the Mississippi Bar,” Dinkla says. “His expressions of concern and willingness to assist us in any way possible were greatly appreciated.”

But Houchins isn’t finished with his own state’s recovery from Hurricane Katrina, which hit the Mississippi Gulf Coast especially hard on August 28, 2005.

“As a society, we move fast. Major disasters like Katrina, tornadoes, and 9-11 don’t stay on the front burner long,” Houchins says. “I feel like everyone thinks Katrina is gone, and everything is back to normal on the Gulf Coast. But it isn’t.”

Most of the waterfront property along the Mississippi Gulf Coast remains vacant, Houchins says, and homeowners are still fighting with insurers over coverage.

“There are still groups coming to the coast every week to help rebuild,” he says. A group of lawyers from Pennsylvania have been down several times to help build houses, Houchins says, and he went down himself with his church group to help in June.

On the positive side, the judicial system seems to be functioning quite well, he says. “The Hancock County Courthouse in Bay St. Louis was completely destroyed, but the other state and federal courthouses on the coast survived and are fully functional,” Houchins notes. “Many lawyers lost homes and offices, but they are all back in business. Only a handful of lawyers left the coast.”

Many lawyers did suffer personal losses, just like everybody else, and many lost business income as well. “Thanks to the generosity of lawyers from across the nation, much was done to assist lawyers immediately following Katrina,” Houchins says. The Mississippi Bar, through its Lawyers & Judges Assistance Program, still operates a Katrina assis-tance project.

 

Iowa efforts begin

At press time, the Iowa State Bar Association was just starting its own task force to assist lawyers who have been af-fected by recent tornadoes and floods.

“Of particular concern are the solo and small firm practitioners who lost everything,” says Dan Moore, president of the ISBA. “The task force will determine the best ways to help those attorneys affected and will be charged with figuring out how to disburse funds that are contributed in as fair and equitable fashion as possible.”

The flooding in eastern Iowa has gotten a lot of national media attention, but over Memorial Day weekend, several weeks before the flooding, a violent tornado ripped through Parkersburg and New Hartford. More than 350 residences and businesses, including law offices, were destroyed.

The ISBA set up a disaster relief hotline that was expanded once the floods hit. “From the experience gained in the last ‘500-year flood’ in 1993, we know that many businesses will never reopen or will fail within the next two years,” Dinkla says. “We are putting in place efforts to help the recovery effort on both the public side and the law practice/business con-tinuation side.”

The bar association, which moved into a new $3 million headquarters in January, almost needed its own services. Be-cause of rising waters on the Raccoon and Des Moines rivers, bar staff—with assistance from president-elect Jane Lor-entzen and her family—filled 1,200 sandbags and placed them around the new building for protection.

“Shortly thereafter, bar association employees were asked to vacate our facilities,” Dinkla says. “Fortunately, however, the levees held and our building did not flood.” As a result, the staff and the Young Lawyers Division, who met at the build-ing, held a beach party celebration with lots of sand.

 

An update from New Orleans

As everyone knows, the levees did not hold in New Orleans during Hurricane Katrina and 80 percent of New Orleans was flooded. The court system there is not on as solid footing as it is in Mississippi.

“At this time, our No. 1 priority is to retain our civil court downtown,” says Helena Henderson, executive director of the New Orleans Bar Association. “The legal community occupies a significant portion of the downtown area and to move our civil court would be very destructive to the downtown area.”

That issue remains very much up in the air, as the mayor of New Orleans and others want to move the civil courts away from downtown near the criminal courts.

Henderson says that the legal community occupies more than 30 percent of the downtown office space and is a major economic force for downtown, employing more than 6,700 lawyers and support staff.

In addition, the New Orleans Bar Association is lobbying the legislature to delay or scuttle implementation of a court consolidation of civil, criminal, and juvenile courts.

“We don’t believe it was studied, and decisions were made without regard to looking at funding or statistics,” Hender-son says. “In addition, there are some constitutional issues with the legislature’s proposed merger of the courts.”

A lawsuit brought by several law firms says that while the legislation is well intended, it is unconstitutional and was wrong in thinking that the City of New Orleans would not rebound in significant numbers following the hurricane.

“The City of New Orleans … has rebounded in its population to be, once again, the most populated city and urban area in the state,” the suit reads. “The city’s judicial dockets have not diminished but rather have increased as the city has con-tinued its recovery, and national and international commerce regains momentum.”

Momentum is also gathering for a rewrite of the city’s Municipal Code. Henderson says the New Orleans Bar is now seeking funding for the rewrite. She says it will take $100,000, but the bar isn’t going to wait to get all of it.

“We estimate it will take one year to draft or redraft the selected provisions of the Municipal Code,” she says. “Since time is of the essence, we would like to begin immediately.”

While the New Orleans Bar and its law-related partners would draft the code for the city attorney’s office, none of the drafters or bar representatives would be involved legislatively. The bar would provide technical assistance to help relieve the overburdened municipal lawyers, Henderson explains.

One of the codes that needs to be rewritten is the Criminal Municipal Code, she says. Crime increased after the storm, and New Orleans found itself with a labor shortage, inadequate jail space, and damaged or destroyed courthouses and law enforcement facilities. “Many emergency provisions were created, and now we need a comprehensive rewrite of the code to make it cohesive,” Henderson says.

While many of the codes need to be rewritten, some need to be written for the first time. Henderson says that despite billions of dollars in rebuilding aid coming into New Orleans, and despite enhanced national scrutiny, the city does not have a procurement code.

A comprehensive, consolidated procurement code “will increase public confidence and improve our overall ability to satisfy audits for rebuilding funds,” she says.

 

The ‘Katrina rule’

One area of assistance that did not cost the area anything was the civil pro bono legal assistance the city received from out-of-state lawyers. To help facilitate such efforts in the future, the American Bar Association passed what has become known as the “Katrina rule,” which is an ABA Model Court Rule that allows for temporary practice by out-of-state lawyers following a disaster.

The Katrina rule—officially called the ABA Model Court Rule on Provision of Legal Services Following Determination of Major Disaster—was adopted by the ABA House of Delegates in February 2007.

In a report to the House of Delegates, Janet Green Marbley, chair of the ABA Standing Committee on Client Protection, wrote that following Hurricanes Katrina and Rita, thousands of lawyers were inspired to offer legal expertise on a pro bono basis, only to be hampered by unlicensed practice of law statutes and rules.

“The Committee believes that the adoption of [this rule] will allow lawyers to provide temporary pro bono legal services, and that it will allow lawyers whose legal practices have been disrupted by major disasters to continue to practice law on a temporary basis in an unaffected jurisdiction,” she wrote.

The Katrina rule has been adopted, in whole or part, or is being considered for adoption by 19 states so far. (To read the report to the House of Delegates and to view an updated state-by-state chart that tracks the Katrina rule’s adoption, visit www.abanet.org/cpr/clientpro/client.html#State.) Only North Dakota and North Carolina have officially considered the rule and subsequently declined to adopt it.

“No one here actively ‘opposed’ the rule or objected to its noble policy objectives,” says Tom Lunsford, executive direc-tor of the North Carolina State Bar. “Our Issues Steering Committee believed that recent amendments to our rule concern-ing multijurisdictional practice were adequate to deal with the problems the Model Rule was intended to address.”

Similarly, the North Dakota Supreme Court Joint Committee on Attorney Standards recommended against adoption of the rule. While the matter was never brought before the State Bar Association of North Dakota’s board of governors, the bar’s executive director, Bill Neumann, says that “our experience with the 1997 Grand Forks flood gave our state an un-usual and particularly relevant background in dealing with this sort of disaster.”

Prior to Katrina, the Grand Forks flood was the largest dislocation of a city’s population ever to occur in the United States. The North Dakota committee said that the ABA Model Rule is complex and unnecessary in light of that state’s successful response to the legal needs of those affected by the Grand Forks flood.

But other states have found that the Model Rule is a useful tool in preparing for future disasters. In Mississippi, late last year, a special panel on rules recommended to that state’s supreme court that it adopt a new appellate procedure rule for temporary admission and practice upon declared emergencies. The Mississippi rule doesn’t exactly match the ABA’s Model Rule but does allow for temporary practice by out-of-state lawyers.

Houchins says Mississippi first took action long before last year’s recommendation. “Immediately following Katrina, at our suggestion, our court made some changes in admissions rules that took care of the issue for Mississippi,” he notes.

As for Iowa, that state implemented the Katrina rule in May 2007. “It is unknown what impact or effect the Katrina rule will play in the months to come,” Dinkla says.

One thing that is for certain is that disasters like Hurricane Katrina, along with the recent tornadoes and floods, have bar leaders thinking about whether their state and their bar are ready.

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