By Shelly Skinner

As many predicted, the COVID-19 pandemic led to a sharp increase in legal woes. Housing matters, for example, have skyrocketed. In Philadelphia, Pennsylvania, over 300 new eviction cases were filed during the first week of 2022 — the highest number since the start of the pandemic. In Illinois, Land of Lincoln Legal Aid reportedly had to stop taking eviction cases in two offices which had reached capacity. Similarly, an attorney at Lone Star Legal Aid in Texas stated that the organization was handling more eviction cases than ever before.

Domestic violence cases have also risen at an alarming rate. And, the Legal Aid Society of Hawaii saw its unemployment law practice’s caseload climb sharply from nearly 0 cases before the pandemic, to hundreds of cases after the pandemic started.

Resolution of these sorts of legal issues can have a profound impact on a person’s life. Indeed, a person’s life can be saved by obtaining a protective order, securing public benefits, or preventing an eviction. Studies have shown that a person who is represented by an attorney in a legal matter has a far better chance of attaining a favorable outcome. Yet, in the midst of this avalanche of legal needs, many states have maintained regulations that prevent out-of-state attorneys from providing pro bono assistance, thus precluding people from receiving the life-changing legal assistance they need. One way to overcome this hurdle and close this justice gap is for states to adopt the Katrina Rule.

The Katrina Rule

After Hurricanes Katrina and Rita devastated Louisiana in 2005, thousands of lawyers wanted to provide pro bono legal services to Louisiana residents, but they were hindered by statutes and rules regarding the unauthorized practice of law. This led the American Bar Association (ABA) House of Delegates to adopt the Model Court Rule on Provision of Legal Services Following Determination of Major Disaster, more commonly known as the “Katrina Rule,” in 2007. The Katrina Rule applies when:

  • a major disaster has caused an emergency that affects the justice system in a certain jurisdiction, or
  • persons were displaced by a major disaster in another jurisdiction and the assistance of lawyers from outside jurisdictions is needed to provide the displaced persons with pro bono legal services.

Under these circumstances, a lawyer who is licensed and in good standing may provide pro bono legal services in another jurisdiction that has been impacted by a major disaster. Of particular importance for these times, Comment 1 to the Rule notes that the term “major disaster” includes a public health emergency.

Limitations on the Katrina Rule

While the Katrina Rule allows licensed attorneys the opportunity to assist other jurisdictions during emergencies, it also has several limitations. For instance, the legal services provided by the outside attorney must be assigned and supervised by a not-for-profit bar association, pro bono program, legal services program, or other organization specifically designated by the court. Additionally, the Katrina Rule’s authorization generally does not include appearances in court.

However, the most significant limitation to the Katrina Rule is that fewer than half of all American jurisdictions have adopted it. In fact, as of October 2019, only 20 jurisdictions had adopted the rule or had an alternative version in place. This is surprising as the importance of the Katrina Rule has been recognized by several prominent legal organizations.

For instance, in 2007, the Conference of Chief Justices adopted a resolution that urged “the highest court of each state…to consider adopting a rule setting forth an orderly manner for the provision of legal services following determination of major disaster” and commending the ABA Model Katrina Rule “as the foundation upon which to create such a rule.”

In 2019, Legal Services Corporation’s Disaster Task Force issued a report that recommended states adopt the Katrina Rule, stating that it is “effective in quickly allowing out-of-state volunteer lawyers to assist on the front lines of disaster relief operations.”

Now Is the Time for the Katrina Rule

Many experts believe that the COVID-19 pandemic will continue for some time, or that another pandemic will impact the world soon again. Different geographic areas will face surges of infections at different times. When an uptick in medical cases occurs, there will be a corresponding increase in legal needs, such as those concerning housing and public benefits. If every state adopts the Katrina Rule, then lawyers will be available to offer pro bono assistance in states that are experiencing a surge in illness.

Some states have not adopted the Katrina Rule because of a concern that out-of-state lawyers would be “too unfamiliar with local rules and procedures.” However, that concern can be laid to rest as the ABA Model Katrina Rule requires that out-of-state attorneys are supervised by organizations within the jurisdiction where they will be providing services. Additionally, lawyers who are licensed in a different jurisdiction can certainly handle matters of federal law, including bankruptcy. Furthermore, lawyers are capable of learning the laws and procedures of other jurisdictions, and therefore, are capable of providing pro bono legal services in other states. In fact, lawyers — no matter where they are licensed — should, and do, research the applicable authority in each case they are handling.

In addition, the ABA’s Standing Committee on Ethics and Professional Responsibility issued an ethics opinion closely related to this issue in December 2020. The opinion (which is non-binding) generally states that attorneys should be permitted to practice law pursuant to the jurisdiction in which they are licensed, even if they are not physically located in that jurisdiction. The issuance of this ethics opinion, in the midst of the pandemic, suggests that lawyers have been moving to states where they are not licensed due to the increase in remote work opportunities. The Katrina Rule would offer those attorneys the opportunity to become more involved in, and serve, their new communities, especially during disasters, such as the COVID-19 pandemic.

Lawyers who seek to serve others should not be hampered in their efforts, particularly in the wake of natural disasters, when their assistance is needed most. It is time to make it easier for lawyers to uphold their ethical obligation to increase access to justice. It is time for all jurisdictions to adopt the Katrina Rule.

Shelly Skinner worked on traditional labor cases and ethical matters as a Federal Attorney for 12 years. Shelly now works on innovative solutions to increase access to justice. She is a member of LSC’s Emerging Leaders Council.

Changing Times Call for Changing the Rules was originally published in Justice Rising on Medium, where people are continuing the conversation by highlighting and responding to this story.