In the wake of Hurricane Katrina, communities around the country opened their arms to evacuees, which included a substantial segment of the state’s legal community. In Louisiana alone, more than 200,000 homes were badly damaged or destroyed, more than 20% of the state’s population had property damage claims as a result of the storms, and more than a third of the state’s lawyers were displaced. At the same time, the Gulf states experienced an influx of lawyers from other states who came to the devastated areas to help those in need. Each situation created ethical problems for lawyers practicing outside the jurisdiction in which they were licensed.

Displaced Lawyers

The offices and practices of many lawyers in Louisiana and Mississippi were demolished by the storms. Offices were flooded and records destroyed. Clients were scattered, many never to return. Courts were closed for months. Even today, some courthouses are not repaired and some property records are difficult to access. Some lawyers evacuated by car and returned to find their offices, if they were lucky, inundated by only four or five feet of water. Others discovered that entire walls and roofs had been obliterated, scattering their files to the winds. Still others tell harrowing stories of having to swim out of their homes as the waters rose at an alarming rate.

Whether they left by car with a few days’ belongings and a laptop, or whether they dashed out with only the clothes on their backs, the hurricanes forced thousands of Louisiana, Alabama, and Mississippi lawyers to relocate to other states. Most left thinking their departure would be short-lived, only to find that they could not return for months or, worse yet, that there was no office to which they could return.

These lawyers needed to care for their families, but they also had to find ways to contact clients who were similarly scattered and to notify opposing counsel or courts concerning ongoing matters. Most critically, they had to find a place to work. Often, these lawyers found that they had relocated to a state where they were not licensed to practice.

ABA Model Rule 5.5, the rule relating to the unauthorized practice of law and multijurisdictional practice of law, does not contemplate a lawyer having to set up a temporary office in another state, and many states’ unauthorized practice of law rules bar lawyers from living in another state and trying to service clients in their home state. See www.abanet.org/cpr/jclr/mjp_alpha_chart.pdf (last visited June 1, 2006) for the state implementation of ABA MJP Recommendations.

To accommodate these uprooted lawyers and to allow them to continue to serve their clients and the public, 19 states altered or amended their practice of law rules to grant displaced attorneys from Louisiana, Mississippi, Alabama, and, in some instances, Texas temporary reciprocity to practice law while they were relocated outside of their home jurisdictions. The accompanying chart on pages 28–32 summarizes the situation state-by-state.

The rules that were passed are not uniform, and each state has placed different limitations and restrictions on displaced lawyers. Most of these rules are of limited duration and are specific to the lawyers displaced by Hurricanes Katrina and Rita. Many states placed limitations on practice, such as requiring these lawyers to represent only clients from the lawyer’s original state or to practice in conjunction with local lawyers. Still others, contemplating that the displaced lawyers might want to stay in their host state, waived or reduced fees, allowing these lawyers to take the bar on an accelerated basis or providing other forms of relief from the usual rules governing the practice of law.

Without these special rules, clients in the affected areas would not have been able to use their hurricane-affected lawyer located temporarily in another state, and dislocated lawyers would have been unable to assist their clients.

Pro Bono Assistance: Overview

Even before the two hurricanes, the need for pro bono legal assistance in this region was great. After the storms, the need was immense. Homeowners and tenants lost everything. Families were separated. People were overwhelmed by the myriad issues that faced them, from how to survive day-to-day, to navigating the complexities and red tape, to qualifying for assistance and grants, to landlord-tenant problems, to family law matters, to obtaining assistance in getting housing, to insurance issues.

With thousands of businesses destroyed and with so many people losing their jobs because of the storms, the need for access to pro bono legal advice was critical. Yet, because the storms had affected the legal community as well, local bars and legal organizations were unable to keep up with the demand on their own.

To respond to this overwhelming need, courts in Louisiana, Mississippi, and Texas passed rules and issued orders permitting attorneys from around the United States to come to the affected areas to assist. Without such special rules, the general provisions on multijurisdictional practice would have barred that effort. For example, under ABA Model Rule 5.5(c), lawyers may temporarily provide legal services in a state where they are not admitted only “in association with a lawyer” in that jurisdiction if the matter does not involve an existing client or ongoing proceeding or does not arise out of the lawyer’s practice in the home jurisdiction. This rule is inadequate for the emergencies caused by the hurricanes, for none of the permitted exceptions to the general rule barring multijurisdictional practice covers out-of-state lawyers providing pro bono assistance in areas hit by a mass disaster.

The special rules passed in Louisiana, Mississippi, and Texas recognized the problem and allowed non-admitted attorneys to provide free legal advice in civil matters to persons affected by Katrina and Rita. This pro bono legal assistance, sponsored by these three states in conjunction with the American Bar Association Young Lawyers Division (ABA/YLD) and FEMA, is still continuing. Moreover, bar associations, legal service corporations, and other pro bono legal organizations throughout the country also are providing pro bono legal assistance to persons affected by the hurricanes who evacuated to other cities or states.

Pro Bono Assistance: The Louisiana Example

The Louisiana Supreme Court’s “Supplemental Emergency Pro Bono Civil Legal Assistance Rule” allows out-of-state attorneys to assist “with respect to issues arising out of or relating to rights, remedies, claims, defenses, injury or damages resulting from or reasonably related to Hurricanes Katrina and Rita, and their aftermath, or evacuations” as long as the assistance is provided through listed legal service providers and lawyer-supervised pro bono agencies within Louisiana. See www.lasc.org/katrina_orders/Suppemergencyprobonocivillegalassistancerule.pdf.

In conjunction with this emergency rule, the Louisiana Bar, along with the ABA/YLD and FEMA, established a toll-free Disaster Legal Services Hotline. Set up within two days after Katrina hit and originally operating seven days a week, it is still maintained during business hours to handle calls that continue to pour in from hurricane victims. The calls are returned and handled by volunteer attorneys and pro bono legal service corporations. More than 13,000 calls were received through the hotline in the first 10 months after the hurricanes. Help is also being provided through local bar associations and through FEMA Disaster Recovery Centers. At one time, there were 59 centers in Louisiana alone, and as of the writing of this article, months after the storms, 16 of them remain open.

Although almost 100 non-admitted attorneys have volunteered to provide pro bono legal assistance in Louisiana, attorneys throughout the country are providing free legal assistance to displaced persons who relocated to their states. Moreover, the outpouring of monetary donations from outside the state to Louisiana legal organizations, such as the Louisiana State Bar Association, has been enormous. Through these monetary donations, the hotline was able to hire local attorneys who had lost their jobs because of the hurricanes, to provide legal assistance to victims, and to hire law students to take information from callers to the hotline. These donations also helped displaced attorneys rebuild their practices. Moreover, other donations in the form of office equipment and office space have been provided to displaced attorneys both in Louisiana and throughout the country.

The ability to render pro bono service to the public on a massive and continuing scale has been possible only because of the combined efforts of volunteer lawyers who left their practices to come to the affected areas to render assistance, attorneys who are rendering assistance to displaced persons within their home states, and attorneys in the affected states who, despite the strains on their families and homes (for many of them suffered damage in the storms), nonetheless made time to help the public.

The Need for a Model Rule

Hurricanes Katrina and Rita demonstrated all too clearly that huge storms cause huge problems requiring immediate assistance in ways that had not been contemplated previously. The issue is not confined to hurricanes, however. The same type of mass problems also could result from earthquakes, other natural disasters, or a pandemic.

Bar associations and courts around the country may want to rethink their multijurisdictional practice rules to deal with such contingencies. Perhaps it is time for the drafting of a national model rule dealing with such matters, a rule that could be implemented in each state on an emergency basis when the need arises. It would appear that, at a minimum, this model rule should

• state specifically that a lawyer not licensed in the state who provides pro bono service under the rule during a disaster would not be considered to be engaged in the unlawful practice of law;

• define the kinds of pro bono activities permitted or encompassed by the rule (would these activities include or exclude filing lawsuits? assisting in criminal matters? taking on pro bono cases and then later entering into a formal fee-generating agreement, hourly or contingent or otherwise, with the client? taking actions that would be allowed by the rules in the lawyer’s home state but not by the rules in the state where the services are being performed, such as advancing costs or medical expenses?);

• allow the participation of out-of-state lawyers in these pro bono activities over the phone or perhaps even over the Internet;

• define who would supervise these pro bono activities (must they be delivered through an established pro bono organization or legal services operation or through a court-organized or recognized operation?); and

• provide some mechanism in the state where the disaster occurs for centralized notification, registration, or listing of those out-of-state lawyers who participate in such activities (and a recognition by these lawyers that they are subject to the disaster-state’s disciplinary rules).

The Louisiana Supreme Court’s emergency rule is one model to consider. It requires that

Each attorney providing services under the authority of this order shall first present to the Office of Disciplinary Counsel an application for a limited certification of pro bono practice containing the following information:

1) The attorney’s full name, firm name, residential address, principal business address, email address, telephone number, fax number, jurisdiction or jurisdictions within which the attorney has been admitted, and the bar identification number for each such jurisdiction;

2) An affirmation executed by the attorney that he or she is duly licensed and in good standing and authorized to practice law in each of the identified jurisdictions and that the attorney’s license is not the subject of any suspension, disbarment, or other restriction in any jurisdiction;

3) An affirmation executed by the attorney that he/she is performing all services under the authorization of this order and that the certified out of state pro bono practitioner will be acting strictly in the capacity as a volunteer;

4) An affirmation that all services to be performed will be at no charge, fee or expense to the client;

5) An affirmation executed by the attorney that he/she has read, will abide by, and is subject to the Louisiana Rules of Professional Conduct, including the rules prohibiting solicitation of cases or clients, will faithfully perform the duties of an attorney and will not place his or her personal interests ahead of the interests of the client;

6) An affirmation that the attorney has read and will familiarize himself/herself with the emergency/disaster training manual for volunteer lawyers prepared by the Louisiana State Bar Association (available at http://www.lsba.org);

7) An affirmation executed by the attorney that he/she consents to the lawyer disciplinary jurisdiction of the State of Louisiana

8) An affirmation executed by the attorney that he/she will not undertake, as a certified out of state pro bono practitioner, to represent any person other than a client assigned to the lawyer by one of the six legal service providers and/or pro bono agencies identified herein, and the certified out of state pro bono practitioner shall not hold himself or herself out in this state to be authorized to provide legal services to any person other than through these identified programs;

9) A certificate of good standing together with a disciplinary certificate from each state of licensure wherein the attorney is presently licensed to practice law.

See www.lasc.org/katrina_orders/Suppemergencyprobonocivillegalassistancerule.pdf.

The ability to have a uniform model rule ready to enact when a disaster hits would aid the public, the courts, and all of those lawyers who so graciously give of their time and energy to assist when the need arises.

 

Michael H. Rubin is a member in the Baton Rouge office of McGlinchey Stafford PLLC and chair of the RPPT Section Real Property Ethics Committee; he was chair of the Louisiana State Bar's Hurricane Relief Committee. Beth E. Abramson is an associate in the New Orleans office of McGlinchey Stafford and headed up the ABA Young Lawyers Division disaster relief committee for Louisiana, coordinating all pro bono activities among the ABA/YLD, the Louisiana State Bar, and local bar associations in the wake of Hurricanes Katrina and Rita.

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