MAY 2020 | AROUND THE ABA

Legal lessons learned in the face of a declared emergency

We have seen disasters such as hurricanes, tornadoes, floods and wildfires. And we’ve known public health threats caused by infectious diseases such as SARS, Ebola and H1N1.

But the COVID-19 pandemic “is sort of a new paradigm,” said Karen Rubin, counsel with Thompson Hine LLP in Cleveland, Ohio. “In a very short span of time, our whole legal industry has been turned on its head by this public health crisis.”

Rubin was one of three speakers at the April webinar, “Declared Emergencies: The Changing Legal Landscape During Disasters,” sponsored by the ABACLE in its continuing series of COVID-19-related webinars. She was joined by Lance Gable, an associate professor of law at Wayne State University Law School in Detroit, and Joyce Roper, a senior assistant attorney general in Olympia, Washington.

Gable provided an overview of emergency declarations during disasters. He said that emergency powers by government — whether federal, state or local — activate a surge of resources during public health emergencies. That surge, he said, also can override legal rules and sometimes impede a rapid response by officials to the crisis. That’s why tight oversight also is necessary.

“That is important because, while we want government to be able to act quickly, those powers should not be unlimited and they should be subject to restrictions and limitations,” Gable said.

Federal emergency declarations and related actions include:

  • Public Health Emergency Declaration. The Department of Health and Human Services can declare a public emergency, disburse money, investigate outbreaks, stockpile medicines and coordinate state coverage. HHS also can maneuver around some regulations — without presidential approval.
  • National Emergencies Act. It allows the president to declare a national emergency and redirect money and staff or other resources. The act is broadly worded and has been used in other instances not related to public health emergencies, such as the Trump administration declaring a national emergency in February 2019 concerning the southern border of the United States.
  • Stafford Act. This is a primary disaster statue at the federal level, used to declare an emergency or major disaster to authorize FEMA. It typically is used in response to natural disasters such as hurricanes. It also permits the release of substantial resources and gives FEMA authority to take on a coordinating role. The Stafford Act usually is declared state by state.
  • Defense Production Act. This federal law allows the government to compel private-sector manufacturers or other industries to produce certain key supplies — such as ventilators — that are essential to respond to an emergency.

Gable said that the COVID-19 pandemic marks “the first time in our history that every state declared state-level emergencies simultaneously.”

Washington state’s experience with COVID-19

Roper, who as Washington state’s assistant attorney general advises the health department, credits Gov. Jay Inslee with quickly responding to protect the public after the coronavirus outbreak at the Life Care Center of Kirkland.

Inslee issued the first state emergency proclamation Feb. 29, triggering implementation of the state’s Comprehensive Emergency Management Plan.

“Since that first proclamation, the governor has issued 39 additional proclamations, amending the first to address a variety of topics such as schools and college closures, restricting large gatherings, closing businesses not deemed essential …  and suspending laws impeding an effective response by officials,’’ Roper said.

Under the Uniform Emergency Volunteer Health Practitioners Act, the state was able to mobilize more than 4,000 volunteer practitioners from across the state and the nation. Retired practitioners also registered as volunteers, Roper said.

The ethics of lawyering in a time of disaster

Rubin said the pandemic has forced many lawyers to work remotely, while law firms cut staff and withheld bonuses. Even the courts and clients have been disrupted, she said.

“In this mix, everyone is trying to stay on an even keel emotionally while we work through all these issues,” Rubin said, adding that, despite the circumstances, lawyers must maintain a standard of professionalism. That standard is the ABA Model Rules of Professional Conduct.

Rubin, co-editor of Thompson Hine’s legal ethics blog, offered three tips on:

  1. Competence, referencing Model Rule 1.1. “The rules require us to bring to each situation the legal knowledge, skill, thoroughness and preparation reasonably necessary,” Rubin said. However, she cautions that lawyers, especially in this pandemic, should remember their limits in providing emergency advice. Rubin said more specific guidance on lawyer duties and how to be prepared for a disaster situation comes from ABA Formal Opinion 482.

    The flip side of lawyers’ duty of competence, she said, is managing malpractice risk. She said lawyers should keep close track of deadlines; build in redundancy (keep a paper calendar as well as an e-calendar); stay on top of substantive changes to practice areas; and document, document, document.
  2. Confidentiality, per Model Rule 1.6. Rubin’s tips on working from home: Secure your client documents; shred confidential documents; be aware of your phone conversations (during a walk, in an Uber); and don’t connect to unprotected Wi-Fi networks. Zoom, she said, is the hot new videoconferencing tool but lawyers shouldn’t make meetings public or share links on public sites. Also, use “host only” screen-sharing and the updated version of any remote meeting applications.
  3. Civility and courtesy. “You don’t want to be on the wrong side of a bench slap … with arguing and bickering among lawyers,” Rubin said. “Liberally exercise every professional courtesy.”

    The webinar was moderated by Gregory Sunshine, a legal analyst with the Centers for Disease Control and Prevention in Atlanta and chair of the ABA Health Law Section’s Public Health & Policy Interest Group.

To see all of the ABA’s COVID-19 coverage, click here.

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