American Bar Association's Response to Unauthorized Practice Problems Following Hurricane Katrina: Optimal or Merely Adequate?

Georgetown Journal of Legal Ethics, The, Summer 2007 by Shapiro, Sheryl B

Introduction

When Hurricane Katrina swept through New Orleans in late August 2005, breaching the city's levees and devastating communities, it left the region's legal system in shambles.1 Local courthouses were flooded-both the Louisiana Supreme Court and the Fifth Circuit Court of Appeals were under water-and critical documents were destroyed.2 The day after Hurricane Katrina hit Louisiana, the state supreme court issued an emergency order freezing deadlines and court proceedings through at least September 9, 2005, and a few days later, Louisiana Governor Kathleen Blanco suspended all court proceedings statewide through September 25, in response to requests from the state bar.3 Court proceedings from divorces to murder trials to corporate litigation were indefinitely postponed.4

The storm took a heavy toll on practicing lawyers in the Gulf Coast states of Louisiana, Mississippi, and Alabama. The American Bar Association ("ABA") estimated that 5,238 ABA members' lives and practices were destroyed.5 In Mississippi, early estimates suggested that at least 75 percent of the 900 lawyers' offices located in the state's three Gulf Coast counties were severely damaged or demolished.6 Similarly, in Louisiana, at least 50 percent of the state's practicing lawyers lost homes, offices, or both.7 There were about 8,000 lawyers practicing in the New Orleans metropolitan area before Katrina, and the best estimates are that at least half were still gone months after the storm.8 The lawyers fled north, east, and west with the rest of the storm evacuees,9 in what has been reported as "the largest mass migration in the country since the Dust Bowl drought of the 1930s."10

Following the hurricane, some displaced lawyers set up temporary offices in spare conference rooms and spaces offered by fellow lawyers, others who worked for large firms moved to existing offices in other cities, and some remained in limbo.11 Just days after the hurricane, neighboring states' bar associations as well as 95 law firms and solo practitioners "from Vermont to Washington state" had offered free office space to displaced lawyers, some offering spare rooms and desks using a Katrina disaster relief website set up by the ABA.12 Many lawyers lost contact with their clients, who also evacuated their homes for locations throughout the country. While big firms in New Orleans successfully found their corporate clients, smaller firms commonly located only 45 to 50 percent of their clients six months after the hurricane.13

News accounts of Katrina's impact on the legal community focused on the physical destruction of lawyers' offices and legal documents, the temporary relocation of displaced lawyers, lawyers' and clients' efforts to contact one another, and the struggling Louisiana criminal justice system.14 But, the mainstream media largely ignored a fundamental problem faced by displaced lawyers who temporarily fled to other states: would the lawyers be permitted by local ethics rules, and in most states corresponding unauthorized practice of law statutes carrying criminal penalties,15 to practice law in their temporary host states?16 Practicing lawyers in the nation's other states, who were not licensed to practice law in Louisiana, Mississippi, Alabama, and Texas, but who wanted to provide pro bono assistance to hurricane victims, faced a similar hurdle: would they be permitted by local ethics rules and unauthorized practice of law statutes to provide legal assistance to hurricane victims in states where they were not licensed to practice law?

This Note describes the multijurisdictional practice issues raised by Hurricanes Katrina and Rita and analyzes the ABA's efforts to avoid similar legal problems following future major disasters. Part I of this Note summarizes the multijurisdictional practice issues raised by Hurricanes Katrina and Rita and the responses of various states to meet the needs of displaced lawyers, existing clients of displaced lawyers, hurricane victims, and lawyers offering pro bono legal assistance.

Part II describes me ABA's new Model Court Rule on Provision of Legal Services Following Determination of Major Disaster,11 drafted and adopted in response to me multijurisdictional practice dilemmas that arose after the recent hurricanes.18

Part III of this Note maintains mat the Model Court Rule on Provision of Legal Services Following Determination of Major Disaster is reasonable and should be adopted by the highest court in every United States jurisdiction because the current multijurisdictional practice provision in The Model Rules of Professional Conduct ("Model Rules"), on which states have based their individual ethics rules, does not accommodate the practice of law by out-of-state lawyers following Katrina-like disasters. However, the multijurisdictional practice problems encountered after the recent hurricanes could have been substantially avoided if the ABA House of Delegates had previously approved (and the states had enacted) either of two less restrictive multijurisdictional practice schemes considered and rejected by the ABA Commission on Multijurisdictional Practice.19 Finally, this Note argues that a "driver's license" approach to lawyer licensing20 and the more liberal "Common Sense Proposal" to multijurisdictional practice proposed by a coalition of bar associations,21 with minor revisions, would better address both disaster related and traditional multijurisdictional practice issues than the combination of Model Rule 5.5 and the Model Court Rule on Provision of Legal Services Following Determination of Major Disaster.