No one planned for the terrorist attacks of September 11, 2001. But the responses from the public and private sectors in the minutes, hours, days, weeks, and months since the tragic events of that day have demonstrated the capabilities and resolve of the American people in a way that is, perhaps, as unprecedented as the attacks themselves. It is in the spirit of those responses that we would like to offer to bar leaders some of the lessons that we, the New Jersey State Bar Association (NJSBA), learned as we attempted to provide assistance to those in need.
If there is a simple motivation for writing about our experiences it can be seen in the following story, told to us by the director of one of the volunteer relief organizations that responded to the disaster. After a number of news stories appeared about the many specially trained dogs being used in the search, rescue, and recovery efforts, and the concomitant need to feed them, overwhelmingly large donations of dog food were made to certain relief agencies. Almost all of the dog food was unusable because of the special diets that these dogs were fed. Storing the donated dog food became expensive, not only because of the costs of storage but also because the packaging of the dog food made it susceptible to infestation by vermin and insects.
Thus, what was conceived by the donors to be a generous gesture turned into an additional and significant problem for the relief organization. Our story, we hope, will assist bar leaders in avoiding that type of situation, where the desire to help collides with what is truly needed. In this article, we identify some of the issues and problems that we faced and, by telling our experiences, suggest how other bar associations might plan now to prepare for a disaster.
Programmatic considerations
The NJSBA has had a Mass Disaster Response Program in place for over five years. We have assisted victims in the wake of floods, hurricanes, and other natural disasters. Even so, nothing in our experience prepared us for many of the aspects of the World Trade Center disaster of September 11, most notably the wide variety of unique needs presented by victims.
For example, the unmarried women with children allegedly fathered by married disaster victims whose spouses were unaware of these other women or children; or the mother of a young man killed in the World Trade Center who insisted on meeting in a public library because of deep-rooted suspicions about lawyers; or the divorcing spouse and the fiancé who, calling separately, both sought the same survivor benefits. In some ways, these issues were simply one more proof of a truth we had already learned from prior tragedies: Each disaster requires the ability to adapt to specialized and unique needs and conditions that were never encountered or fully anticipated before.
Moreover, the level of generosity of attorneys in responding to this disaster posed a number of challenges that we never previously had to confront. Suddenly, with the addition of 250 new volunteer attorneys, there were many issues that had to be addressed. Among the most central were:
- Subject matter training in substantive legal areas;
- Development of a system of conflicts checks;
- Creation of a model retainer agreement;
- Standardization of requirements for volunteers (e.g., ethics screening; no-compensation pledge; no referrals to other attorneys for paid services);
- Defining which victims will be served by the program;
- Identifying the scope and limits of interaction with other programs lacking similar safeguards; and
- Providing continuing updates to volunteer attorneys.
In assisting victims, we also discovered that it is important to remember that volunteers and staff are vulnerable to the emotional costs of providing assistance. While the disaster relief program directed victims to outside grief counselors, our Lawyer Assistance Program (LAP) staff made themselves available for internal consultations. This service was considered particularly valuable to those who were working directly with victims.
Interorganizational cooperation
Prior disasters had already shown us the importance of coordinating our relief efforts with those of other organizations outside the legal community. One way we did this was by becoming an active member of New Jersey’s Volunteer Organizations Assisting in Disasters (VOAD). Through VOAD, groups such as FEMA, the American Red Cross, United Way, Salvation Army, Catholic Charities, and many other charitable, religious, nonprofit, and/or public interest groups are able to learn about one another’s programs and coordinate their responses.
Based on our experience, we recommend that every bar organization disaster assistance program become active in its state VOAD organization to plan its responses with other disaster assistance providers. It is impossible to respond adequately to the needs of disaster clients unless the bar association and its volunteers are familiar with the various services that are available to clients and how to access these programs in a timely manner.
The World Trade Center Family Assistance Center at Liberty State Park proved to be an essential resource for those victimized by the tragedy. There, these families were given a centralized location to access various assistance providers. The center was located at Liberty State Park in Jersey City, directly across the Hudson River from the former World Trade Center site. Pier 94 provided the same services directly across the Hudson River in New York City. Some of us wondered at first whether this location might increase the anxiety of disaster clients, but that concern proved to be unfounded. Clients reported that the proximity of the center to the disaster site had therapeutic value for them. We therefore recommend that the location of centralized disaster assistance sites be carefully selected, both to maximize convenience for disaster clients and to assist in the healing of emotions.
The environment of this center was sensitively and intelligently planned. Each of the disaster victims was met by a trained volunteer who served as his or her guide, friend, and assistant throughout the process. At that one location, they were able to register, when appropriate, for Social Security survivor benefits, file unemployment and disability claims, and seek job training through the New Jersey Department of Labor. They could register for benefits from the Victims of Crime Compensation Board, arrange FBI DNA tests, and obtain FEMA services.
The location enabled them to get transportation, lodging for visiting family, temporary housing, and financial assistance through organizations such as the Red Cross and United Way. They could arrange Medicaid applications through the Department of Health and Senior Services, obtain information from the Department of Insurance about collecting life insurance proceeds, arrange title transfers to automobiles through the Department of Motor Vehicles, and obtain benefits, where applicable, from the Veterans Administration. It was also at Liberty State Park that our state bar and the State Attorney General’s Office helped families obtain the New York death certificates, as described elsewhere in this article.
Even with these coordinated efforts, victims expressed frustration with the redundancy of filling out many different forms for disparate purposes. While it is perhaps beyond the exclusive control of bar associations, we suggest working with appropriate officials to develop a single form with multiple uses such as those described above.
Cooperation within the legal communities
Another need that we soon encountered was to coordinate our legal disaster assistance with other programs offered by county and specialty bars, large law firms, law schools (including law students), and public interest groups. This was a new development for us; in prior disasters we were usually the “only game in town” for disaster assistance within the legal community. We soon recognized the need to interact with the policies, procedures, and politics of other lawyer organizations not only in our state, but in New York as well. We were fortunate that the chief judge of New York, Judith Kaye, became immediately and personally involved in the planning process. She invited us to participate in a planning and training session with New York’s city and state bars and the Connecticut Bar Association.
To promote coordination, we used a disaster assistance format developed by the Association of the Bar of the City of New York, essentially the same format we had been using in prior years but with new terminology for the various types of legal assistance volunteers who were now called facilitators, mentors, and experts. We also entered into a joint venture with others in New Jersey’s legal community, most notably the Essex County Bar Association. Together, our two bar organizations were able to utilize a lawyer referral automated system donated by ilawyer.com of San Francisco.
This enabled both our programs, operating from separate telephone hotlines, to draw from a common pool of volunteer attorneys and match the needs of clients with available lawyers not only by areas of legal experience and geographic convenience, but also by such factors as foreign language facility and barrier-free access. Because the bottom line must be victim assistance, coordination of efforts is essential. Bar associations should start now to determine who else can provide assistance to disaster clients, both inside and outside the legal profession.
Statutory and regulatory changes
Given the magnitude of the September 11 events, one of the first actions taken by the NJSBA leadership was to reach out to the chairs of our sections for their help in identifying the legal issues, both immediate and long-term, that might have to be addressed. In our situation, three problems were quickly identified: (1) If there is a mass disaster and there is difficulty obtaining actual bodies of the victims, can families still easily obtain death certificates? (2) Is there an exception to the unauthorized practice of law for extraordinary disaster-related circumstances that span several states? (3) Are volunteers adequately protected under workers’ compensation, tort, disability, and other applicable laws?
Within a week after September 11, it became evident that New Jersey’s statutes and court rules relating to declarations of death were woefully inadequate to address a disaster situation such as this. Typically, a death certificate is issued when there is proof that an individual has died. In most cases, that proof is a dead body. In many of the September 11 cases, there was no body—at least not early on—so the issuance of a death certificate became trickier. Under pre-September 11 law, an individual who was absent for a continuous period of five years and had not been heard from, and whose absence was not satisfactorily explained after diligent search or inquiry, was presumed dead. If that law had remained unchanged, New Jersey families conceivably could have been required to wait five years before a death certificate could be issued and estates could be settled.
That, of course, was unacceptable. So, members of the NJSBA’s Real Property, Probate and Trust Law Section worked with the Administrative Office of the Courts and the Attorney General’s Office to craft a “catastrophic event” amendment to the statute, whereby if the courts determine a person is missing as the result of a catastrophic event that has resulted in a significant loss of life, they could waive the five-year waiting requirement for issuing a declaration of death if the person’s absence cannot otherwise be satisfactorily explained. The amended language breezed through the legislature and was signed into law on October 4, 2001.
Likewise, the NJSBA supported a move by the County Surrogates to streamline the court rules relating to the probate process for family members of September 11 victims to ensure those procedures could be easily utilized. Volunteer attorneys within each county were made available to these individuals to assist them in expediting the process.
In New York, Chief Judge Judith Kaye developed and approved affidavits to be used by victims’ families to obtain a death certificate. The affidavits could be completed anywhere and sent to the New York Family Assistance Center with proper documentation for processing by the New York Medical Examiner’s Officer. Certified copies of death certificates were promised within 10 days of submitting an affidavit. This process made it much easier for families to obtain death certificates and be able to move forward with the settling of their loved one’s estate.
Judge Kaye also clarified that attorneys assisting victims’ families in New Jersey or other states besides New York in filing an affidavit for a death certificate were not violating any New York unauthorized practice of law statute. In light of the circumstances, anyone wishing to provide assistance was not going to be turned away.
As volunteer efforts surged, so did concerns about volunteers. One question, which is still unresolved in New Jersey, is whether volunteers who are injured while performing their volunteer work are covered under workers’ compensation. Currently, volunteers are only covered by workers’ compensation if their organization was requested to render service at a disaster site. In the days and weeks following September 11, individuals flocked to the site to volunteer their time, energy, and expertise. Few people waited for an official call from their sponsoring volunteer entity.
In the first few days, however, the World Trade Center site was not necessarily safe and secure, and many volunteers suffered smoke and dust inhalation and other medical issues. Whether they will be covered under their respective organization’s workers’ compensation policies remains to be seen. In the meantime, the NJSBA Workers’ Compensation Section is looking at the issue to determine if some of our laws need to be changed to address this situation.
Our experience shows the importance of motivating bar association sections and committees to examine relevant statutes, rules, and regulations prior to a disaster and to use bar association lobbying efforts to make any necessary “disaster-friendly” changes. We strongly encourage use of your association’s lobbying influence and expertise to seek changes or exceptions to those laws that may be as problematic in advance of any disaster. It is equally important, however, in the wake of a disaster, to take another look at relevant statutes, rules, and regulations to determine if the particular characteristics of that disaster require changes that were not anticipated before the disaster had occurred.
Concluding thoughts
Lawyers must be counted among the heroes of September 11. Not only did they volunteer their services in huge numbers in the states where the terrorist attacks occurred, but across the nation they saw opportunities to help individuals in need and they rose to the occasion.
Based on our experiences in responding to the events of September 11, we have highlighted in this article certain areas that we feel bar associations can address, or at least can think about now in anticipation of responding to disasters in the future. It is worth repeating, however, what was noted earlier: that responses to disaster are often based on the last disaster, and new situations present new problems, wholly unanticipated. Every lawyer, every bar association—indeed everyone—lives in a new world since that terrible day. We must plan as best we can for life in that world.
BL
In addition to Daniel M. Waldman, several people at the New Jersey State Bar Association were instrumental in coordinating and preparing this article. They are: Executive Director Harold L. Rubenstein; Counsel and Director of Legal Affairs Raymond A. Noble; Associate Legal Counsel Sharon A. Balsamo; Communications Coordinator Barbara S. Straczynski; and Graphics Coordinator Janet Gallo.
