IN KATRINA’S WAKE, 5TH CIRCUIT RELOCATES, LAWYERS MOBILIZE TO HELP

The first reports out of New Orleans from popular blogger "Ernie the Attorney" were upbeat and positive. On Aug. 29, he had taken a drive to assess the damage wrought by Hurricane Katrina, and he seemed comfortable and safe.

But the next day, the posts on his site took a frightening turn. The levees protecting the below-sea-level city were breached, and floodwaters began to rise. One of Ernie Svenson’s friends took over his Web log and was pleading for help coordinating his escape from the storm-ravaged city.

Only after he reached safety did Svenson comprehend the catastrophic nature of a storm that is expected to be among the deadliest and costliest natural disasters in U.S. history.

Svenson—who by Aug. 31 was with friends, had his children re-enrolled in parochial school in LaFayette, La., where his firm has office space for him, and was busy once again posting to his site—is clearly among the fortunate.

Throughout the week, news images revealed complete neighborhoods under water, only rooftops showing. The shoreline all along the Gulf was stripped of ocean-view homes. And the death toll in Louisiana, Mississippi and Alabama began to rise into triple digits, with estimates that the final toll could be in the thousands.

"I’m optimistic for the long run, but the short run I think is going to be absolutely horrendous," says New Orleans attorney William G. Cherbonnier Jr., who evacuated with his family to stay with relatives in Plano, Texas. "I think it’s going to be Third World."

As the enormity of the destruction sinks in, Cherbonnier and many others have begun to consider what if anything they will find of their homes and their livelihoods when they are allowed to return to the region. On Aug. 31, state officials all but ordered the abandonment of New Orleans, possibly for weeks or months.

Cherbonnier believes his second-floor office in Jefferson Parish will be OK. But he isn’t so sure about his home.

For a few days, Baton Rouge, La., lawyer Joseph Brantley IV has worked to find office and living space for fellow lawyers displaced by the storm. National and regional law firms with offices outside the impacted region have instituted disaster plans and are taking in refugees. And the Louisiana Trial Lawyers Association sent out a blast e-mail asking that others do the same.

"There’s an onslaught of people looking to lease or buy," Brantley says. "There’s not an apartment complex that isn’t full from here to Houston."

Michael J. Powell, managing partner of the Atlanta office of Baker, Donelson, Bearman, Caldwell & Berkowitz, says the firm’s first priority is locating and assisting its 96 lawyers and their support staff from offices in New Orleans, Mandeville, La., and Jackson, Miss. Powell says his firm has instituted its emergency disaster plan. In early preparation for the hurricane, the firm had already backed up and secured all of its files. He says many attorneys are traveling to the firm’s offices in Tennessee and Alabama to set up shop.

The 5th U.S. Circuit Court of Appeals, which is based in New Orleans, also backed up and secured files in anticipation of the hurricane. But once Chief Judge Carolyn Dineen King realized the extent of the devastation, she began making plans to relocate the court on a more long-term basis and get computers online as quickly as possible.

"All of our employees were impacted by this. All of them are traumatized," says King, who is running the court out of her chambers in Houston. "All have lost their homes, or their homes were severely damaged."

As part of the court’s emergency disaster plan developed following the Sept. 11, 2001, terrorist attacks, all of the 250 employees were given a phone number to call when they reached safety. So far, King says all of her employees and the three judges based in New Orleans have called in to report that they’re safe.

"The acid test of these [disaster plans] has just occurred, and we are in the middle of it," she says.

While the 5th Circuit was regrouping and trying to get its computers back up, it reverted to using paper docket sheets for only the most pressing cases—mainly motions for stays of execution and stays of deportation. "We can’t handle anything except emergencies," says King, who as chief judge also is responsible for the district and bankruptcy courts in Louisiana, Mississippi and Texas.

Looking ahead, King says she’s considering following another familiar industry’s working model. "We may operate the office the way the drilling rigs operate, with so many days on, so many days off," King says. That will keep the court operating and give employees larger chunks of time to take care of their personal lives.

For now, all deadlines have been extended. King is asking lawyers to check with the court’s Web site before sending anything to the court and to by no means send anything to New Orleans.

Even before Hurricane Katrina’s fury reached New Orleans, the ABA’s Young Lawyers Division was monitoring the situation, mobilizing legal assistance relief for Florida, which sustained early damage from the storm. Now the YLD’s Disaster Legal Services Team is working with the Federal Emergency Management Agency to set up a hotline in the affected states. The team usually works through a state bar, but it was having trouble setting up operations in Louisiana because the state bar is headquartered in New Orleans. Still, the team’s coordinator, Rani Newman Mathura, says she expects to have the hotline up and in the meantime is looking for lawyers licensed in the affected states to volunteer to man the hotline.

The urgency for legal assistance isn’t great at this point, but Mathura is getting everything in place. "People really at this point are trying to make sure their family members are safe," she says. "We’re looking at food, shelter and well-being at this point. I know the legal issues are there, and they will come to the forefront in the days ahead."

ABA President Michael S. Greco is anticipating that need as well. He has announced that in addition to the YLD, the ABA at http://www.abanet.org/katrina/ is calling on its sections to assist in the relief and rebuilding effort.

As for the ABA’s midyear meeting, which is scheduled to be held in downtown New Orleans in February, it’s simply too soon to tell whether it will go on as planned.

"We are just right now wishing for the best for New Orleans, and we’ll be continuing to monitor the situation," says Marty Balogh, director of the ABA’s Meetings and Travel Department.

Balogh says the ABA does have a contingency plan if it can’t hold the meeting in New Orleans. He declined to elaborate.

Meanwhile, Cherbonnier is looking forward to the first opportunity to return to his beloved New Orleans, which has been home to his family since the 1700s. But he says his law practice won’t be his first priority.

"I don’t think anything is going to happen for months and months," says Cherbonnier, who recalls being about 14 when he handed out U.S. Army rations to victims of Hurricane Betsy when she struck Florida and Louisiana in 1965.

"I don’t think there is going to be a practice of law for the rest of the year," he says. "People have too many other things [to deal with] that are critical to survival."

Lawyers were part of the problem.

On Saturday night the Mayor Nagin of New Orleans was still dithering with lawyers about their liability if he should order the evacuation of New Orleans be mandatory. This was after the head of the National Hurricane Center called him and begged for mandatory evacuation, trying hard to spell out to him the incredible power of the hurricane and storm surge headed his way. Nagin and the lawyers finally decided to have people sign forms refusing mandatory evacuation so he wouldn't be liable if they didn't go, and then Sunday morning he finally ordered mandatory evacuation.

However, the Mayor of New Orleans didn't commandeer school buses or public transportation buses and start hauling people out. He pretty much left everybody to fend for themselves, as far as I know.

The disaster plans for New Orleans, laws passed by the State of Louisiana, called for mandatory evacuation of New Orleans if threatened by a Category 4 or 5 hurricane or a slow moving (5 mph or less) Category 3. It also calls for them to use public transportation and school buses to evacuated their nursing homes and other infirm residents. The Governor and Mayor simply didn't do what they were supposed to do in a timely manner, despite urging from the President.

Why did they balk at doing what was mandated by their own laws and plans? They may have feared political fallout if the evacuation turned out to be another "false alarm." They feared liability if they declared evacuation and then didn't provide transportation and care for the elderly and infirm, especially those in the care of the State, as required by law. Also they feared liability from businesses forced to shut who would suffer losses.

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