What happens when your ethical duty of competence meets up with an emergency situation where you are called on to give legal advice — immediately? I was thinking about this question because of a ruling that the Ohio Supreme Court handed down late last month, holding that the state’s Good Samaritan law applies to any person administering aid at the scene of an emergency, and not just health care professionals. I wondered whether a Good Samaritan concept applies to “emergency legal services.”
Duty of competence — even in an emergency?
Model Rule 1.1 of course requires you to bring to each situation the “legal knowledge, skill, thoroughness and preparation reasonably necessary.” It turns out that Comment  addresses emergency situations — and it takes a somewhat wary approach. The comment says that “In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical.”
But, caution is called for: “Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.”
You might think of several kinds of extreme situations that could call for emergency lawyering. One hypothetical that has cropped up in various permutations on the Multistate Professional Responsibility Examination, for instance, is a tax lawyer who stops at the scene of a car accident and the dying accident victim begs the lawyer to write down the victim’s last will and testament. The correct answer is that the lawyer would not be subject to discipline for helping out, even if the lawyer doesn’t know how to write a valid will.
How about malpractice liability if the will is invalidated? Well, there would certainly be issues about whether that tax lawyer had any duty to the third parties bringing suit. But in addition, courts routinely look to the Rules of Professional Conduct to supply the standard of care, even though the Rules themselves do not provide an independent basis for tort liability. (See Model Rules Preamble, cmt. .) So, on a showing that the lawyer’s help was urgently required, that no referral or consultation was practical, and that the legal assistance was limited to what was necessary under the circumstances, I’d say that the lawyer should get out of a malpractice case on summary judgment.
Hurricane Katrina and its lessons
The issues regarding emergency lawyering got a real-life workout in the aftermath of Hurricane Katrina in 2005. Many lawyers were displaced; and many lawyers from outside the crisis areas volunteered their legal services. The situation raised multiple ethics questions, including regarding competence, multi-jurisdictional practice, conflicts of interest and client solicitation. In an interesting 2009 article for the ABA’s Professional Lawyer magazine, two Louisiana attorneys discussed how these issues were addressed on the ground, and how they might be addressed in future natural disaster situations.
On the competence issue, the Louisiana State Bar Association’s ethics committee quickly issued a September 2005 opinion applicable to that state’s licensed lawyers. While giving approval to working an advice hotline, or providing on-the-spot legal services at a booth, the opinion took a conservative approach: “The Committee warned that hotline callers are desperate for help and likely more vulnerable than average clients; thus the Committee discouraged lawyers who lacked the competence in the specific, relevant area of law from volunteering, as doing so could cause more harm than good.” The opinion advised that lawyers should decline to provide advice in areas unfamiliar to them, and should refer clients, instead.
Put your own oxygen mask on first
So there’s no unqualified Good Samaritan protection under the Model Rules for lawyers giving emergency advice. As in other situations, your home jurisdiction may have its own rule and/or ethics opinion, and they could certainly provide helpful guidance in case of a natural disaster situation, such as a hurricane.
But what if you find someone injured on the side of the road, and they need emergency lawyering? I know that I’d help write that last will and testament and think about the consequences later.