COMMITTEE REPORT

Report and Recommendations

Regarding TWA Flight 800 Crash
July 01, 2002
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

 Author(s): Mass Disaster Planning, Task Force on

 Issue(s): Governmental AffairsPublic Service & Legal Services

 Subject Area(s): Mass Disaster Planning

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