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ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

AD HOC COMMITTEE ON MASS DISASTER PLANNING

REPORT AND RECOMMENDATIONS

Introduction

On July 17, 1996, TWA Flight 800 crashed off the coast of Long Island, killing all of the 230 passengers and crew members on board. Early the following week, governmental officials asked that members of the organized bar visit with and make a presentation to the families of the victims, who were billeted at the Ramada Inn at Kennedy Airport. The Association of the Bar of the City of New York and the New York State Bar Association worked together preparing a brief brochure that discussed in general terms the process of selecting and retaining lawyers, solicitation by lawyers and legal fees. On July 29, a group of lawyers representing both associations visited the families of the victims at Kennedy Airport, at which time an oral presentation was made and the brochure was distributed. The lawyers undertook (on behalf of themselves and their law firms) neither to solicit nor to accept representations of any of the family members.

This Committee was formed in the aftermath of the tragic crash of TWA Flight 800 and asked to recommend, and upon approval of its recommendations to establish, a plan of action for rapid implementation upon the occurrence of a mass disaster in New York. Our goal was to determine whether and to what extent the organized bar, acting in conjunction with appropriate governmental authorities and in coordination with other bar associations as explained below, could be helpful to families of victims of mass disasters. This report is the product of that analysis.

Recent Developments

The crash of TWA Flight 800, and that of ValuJet Flight 592 earlier in 1996, prompted Congress last fall to pass the Aviation Disaster Family Assistance Act of 1996, Pub. Law 104-264, Title VII, §§ 701-05 (the "Act," codified at 49 U.S.C. §§ 1136 and 41113) as part of the federal aviation appropriations bill. Among other things, the Act gives the National Transportation Safety Board ("NTSB"), instead of the particular airline involved, responsibility for coordinating services to the families of victims of fatal aircraft accidents in the United States. See 49 U.S.C. § 1136(b). In addition, 49 U.S.C. § 1136(g)(2), entitled "Unsolicited Communications," restricts lawyers and other parties from contacting family members within 30 days of the accident. Specifically, the anti-communication rule provides:

In the event of an accident involving an air carrier providing interstate or foreign air transportation, no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by an attorney or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 30th day following the date of the accident.

We note that this statute, based conceptually on Florida Rule of Professional Conduct 4-7.4(b)(1) (a constitutional challenge to which was rejected by a divided Supreme Court in Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995)), applies only to communications arising out of aviation disasters.

In addition, section 704 of the Act provides for the creation by the Secretary of Transportation of a task force consisting of representatives of the NTSB, the Federal Emergency Management Agency, the American Red Cross, air carriers, families of victims of aircraft accidents, air carrier employees, and "such other entities as the Secretary considers appropriate," to study the need for modifications to laws or regulations that would result in improvements to the treatment of family members of victims of aviation disasters including, among other things, issues relating to the treatment of families by the media and legal community.

The tragedies of 1996 also served as the impetus for the formation of the White House Commission on Aviation Safety and Security, chaired by Vice President Al Gore, which rendered its "Final Report to President Clinton" on February 12, 1997. Although not asked by President Clinton to address the topic of aviation disaster response or the needs of members of the victims' families, the Commission on its own initiative recommended that there be a "better coordinated and more compassionate response," noting and endorsing the passage of the Act and the provisions discussed above.

The Work of the Committee

The Committee reviewed the Act and the Gore Commission report, and studied the Act's legislative history and various public statements made by involved parties regarding the needs of families of disaster victims. The Committee also reviewed disaster response plans in effect in other states, including Florida and Texas, and evaluated the work of the ABA's committee on disaster planning.

In addition, the Committee solicited and received views from various sources concerning the role the organized bar should play in responding to disasters. In particular, the Committee acknowledges with gratitude the assistance of: • Hans Epraimson-Abt, President of the American Association for Families of KAL 007 Victims.

• Paul S. Hudson, Esq., past President and current member of the Board of Directors of Families of Pan Am 103/Lockerbie.

• Mike Overly, Aviation Safety Institute.

• Douglas Smith, President, National Air Disaster Alliance/Foundation.

These individuals and their organizations were most cooperative and helpful to the development of our plan.

Recommendations

We make the following four interrelated recommendations. In determining what role the Association and the organized bar in general should play, we have tried to balance the clear need of the victims' families to receive guidance from the legal profession in the days following the disaster with the desire to avoid adding to the inevitable inundation of unwanted and unnecessary contacts at a time of tremendous personal tragedy.

1. Disaster Response Team. In connection with the visit to the TWA Flight 800 families, it was determined in advance that no individual legal advice would be given to any of those present. Rather the discussion would focus solely on the retention of lawyers for prospective wrongful death actions and the rules governing advertising and solicitation by attorneys. We have learned anecdotally that while the visit to Kennedy Airport was appreciated, many of the families present were disappointed that they were not able to receive answers to even the simplest of legal questions, such as the legal import of statements given the day after the crash or how to handle problems with real estate or the estates of their family members. Several of the lawyers who visited the families felt the same frustration. Families of mass disaster victims need such information, not only to know that a structure exists and is in place to serve them, whenever they are ready to reach out for it, but to eliminate to the maximum extent possible the feelings of confusion and powerlessness that follow a disaster.

Accordingly, we recommend that upon the occurrence of a mass disaster, the President of the Association immediately assemble a panel of lawyers to serve as a Disaster Response Team. Members of the Team would be prepared to visit with families of victims of a mass disaster within a few days of the occurrence. A possible format for this visit would begin with a presentation to all of the assembled families regarding subjects of general interest, including the selection and retention of lawyers, and the rules governing lawyer solicitation (including the provisions of the Act), fees, and retainer agreements. Depending upon the nature of the disaster, a brief general presentation on substantive legal issues might then be made.

Following the plenary session, a legal clinic would be set up. Members of the Team would be available to consult on an informal, pro bono basis with family members having particular concerns or questions. The family members would be told that Team members and their firms would not accept any representations arising out of the disaster and thus were not soliciting them as potential clients. We recommend that the Disaster Response Team be multidisciplinary in nature, and that it include attorneys knowledgeable in the following substantive areas of law:

• Personal injury law, particularly wrongful death actions including, when appropriate, the Warsaw Convention and the Death on the High Seas Act.

• Consumer credit law, to provide guidance to families who anticipate having difficulty meeting mortgage and other personal financial obligations as a result of the loss of a family member.

• Estates law.

• Guardianship law.

• Real estate law, including landlord and tenant law and mortgage foreclosures.

• Regulation of the legal profession.

• Other possible areas include insurance law (particularly life, medical and casualty insurance) and public health law (to address issues relating to the work of the coroner or medical examiner and the issuance of death certificates).

To the extent practicable, a list of attorneys who would be willing to serve on a Disaster Response Team should be compiled and updated as necessary to avoid delays in mobilization. Each team member and team member’s firm, if any, should be required to agree in advance that they will not solicit or accept any representations arising out of the disaster.

A representative of the Legal Referral Service should also be present. Although family members ordinarily do not have an immediate need to retain counsel to represent them in wrongful death actions, they frequently need emergency legal services -- including real property and estate-related advice -- in the community in which the disaster victim resided. Consequently, the representative of the Legal Referral Service should be prepared to take steps to assist these family members in securing counsel both within New York or outside of New York by contacting appropriate bar association or other referral services in the localities in question. (Disclosure should be made that certain of these legal referral services may earn a fee, paid by the attorney, as a result of referrals.)

Likewise, because many of the victims of TWA Flight 800 were from France and Italy, and had particular needs for guidance on local issues, we recommend that a list be maintained of lawyers in New York City with expertise in the laws of foreign nations as well as with foreign language skills. Alternatively, or in addition, the Disaster Response Team should be prepared to interact with the appropriate foreign consulates for the purpose of providing services to families of victims who reside outside the United States.

The NTSB, which as noted above now has responsibility for coordinating services to the families of victims of fatal aircraft accidents in the United States, has entered into a Memorandum of Understanding with the Young Lawyers Division (“YLD”) of the American Bar Association. Under this agreement, upon the occurrence of a disaster the YLD’s Disaster Legal Services Committee will, among other things, be called upon by the NTSB to coordinate the efforts of state and local bar associations to provide assistance to the families of disaster victims. Accordingly, in the case of disasters falling within the jurisdiction of the NTSB, the Association’s Disaster Response Team should coordinate its efforts with the YLD.

2. Preparation of Materials. A printed brochure containing written information on topics of general interest, along the lines of that distributed to the families of the TWA Flight 800 victims, should be prepared for distribution to the families. The brochure should include, or be accompanied by, a written expression of condolences and disclaimers of solicitation. A draft of a proposed brochure is attached to this report.

Consideration should also be given to the production of a short videotape, in which presentations on the selection of lawyers and associated issues are made both by lawyers and persons who have lost family members in mass disasters. Copies of this videotape could be available for viewing by the families at a central location or simply given to them for viewing at their convenience. The tape should also include an explanation of the issues and process of litigation from estate filings through wrongful death actions, discovery proceedings, multidistrict litigation, up to the ultimate settlement or award.

Ideally, to the extent practicable, all of these materials should be endorsed by the New York State Bar Association, which has formed a Special Committee to address issues relating to mass disasters, and by other local bar associations throughout the State of New York. In addition, the YLD is coordinating an effort to develop a brochure containing advice of general importance to families of air crash victims that would ultimately be available for distribution anywhere in the country that a disaster occurs. The Association should participate in these efforts, and/or recommend that the attached draft brochure be submitted to the YLD as a model.

3. Right to Rescind Retainer Agreements. Further steps should be taken to shelter family members from overreaching by attorneys in the retention process. Even assuming that the anti-communication provisions of the Act are enforceable under the First Amendment, that law applies only to air crashes, and not to train, subway or bus accidents, or other types of mass disasters. Moreover, family members who would otherwise be protected by the Act are free to initiate contact with attorneys, even though they may be emotionally unprepared to do so. To protect this particularly vulnerable group of potential clients, we recommend that the Appellate Divisions be asked to adopt a court rule that requires any retainer agreement in a mass disaster case that is signed within 30 days of the occurrence to include a provision that affords the client the right to rescind the agreement, without any obligation, within 30 days after the agreement is signed. The Committee on Professional Responsibility should be asked to consider this proposal and related issues such as quantum meruit compensation and reimbursement for out-of-pocket expenses incurred by the lawyers prior to rescission.

4. Coordination with Governmental Bodies. The efforts of the Disaster Response Team must be coordinated with and, we recommend, pre-approved in concept and substance by, the NTSB and other appropriate governmental bodies, such as the offices of the Governor of New York and the Mayor of the City of New York.

As discussed above, the Department of Transportation has formed a task force, which includes lawyers and representatives of the organized bar, to study the need for modifications to laws or regulations that would result in improvements to the treatment of family members of victims of aviation disasters including, among other things, issues relating to the treatment of families by the media and legal community. A member of our Committee will be meeting shortly with the task force to discuss these issues.

Conclusion

It is our hope that implementation of the foregoing proposals will provide critical and timely assistance to families of mass disaster victims, and help them better cope with the decisions they will have to make and the issues they will have to confront as they turn to the legal profession for aid in the aftermath of their losses.

These recommendations do not by any means purport to solve, or even to address, all of the problems attendant to mass disasters and to the interaction between lawyers and the families of the victims of such tragedies. Specifically, we believe that the following issues are worthy of study, perhaps by other committees of the Association (suggested committees are indicated in parentheses):

• Whether to amend the Warsaw Convention or the Death on the High Seas Act to afford greater protection to families of victims of mass disasters that occur in an international context. (Committees on Aeronautics, International Law and Maritime Law)

• Whether to regulate strictly the terms of contingent fee agreements in mass disaster cases. (Committee on Professional Responsibility)

• Whether to restrict the ability of potential defendants or their insurers to discuss or consummate settlement of the claims of families of victims shortly after the tragedy. (We learned, for example, of instances in which pressure was brought to bear on family members to accept settlements from airlines only days after the crash.) (Committees on Insurance Law and Tort Litigation)

• Whether to limit the admissibility of statements given by families of victims to various authorities in the days following the tragedy. (E.g., questionnaires seeking complete medical histories and similar information are often given to families of victims ostensibly for purposes of identification of remains.) (Committees on Insurance Law and Tort Litigation.)

These and other issues of like magnitude were raised by various individuals and organizations, but are outside the scope of our charge.

AD HOC COMMITTEE ON MASS DISASTER PLANNING

Sarah Diane McShea, Chair
Harry H. Burstein
Bruce A. Green
Steven C. Krane
Ted Trief

Dated: October 3, 1997