FEMA lawyers' ethics doubted in trailers mess
Advising against toxics tests would be wrong, experts say
Bob Egelko, Chronicle Staff Writer Sunday, July 22, 2007
The Federal Emergency Management Agency is in hot water again for its treatment of hurricane victims, this time over allegations that the agency covered up health hazards in government-supplied trailers for people who lost their homes. Some experts in legal ethics said congressional indignation should extend to FEMA's lawyers.
The House Oversight and Government Reform Committee heard evidence Thursday that the lawyers had opposed testing for formaldehyde gas in trailers occupied by tens of thousands of families uprooted by hurricanes Katrina and Rita in 2005. Formaldehyde, a wood preservative, has been linked to cancer and other illnesses in high doses.
One e-mail from a FEMA staffer in June 2006 said the agency's general counsel "has advised that we not do testing, which would imply FEMA's ownership of the issue.'' Another agency lawyer told officials not to test without the attorneys' approval, because "once you get results and should they indicate some problem, the clock is running on our duty to respond to them.''
The advice seemed to fit the popular stereotype of lawyers as win-at-any-cost operators who elevate their client's interest above the public good. But one legal commentator said the FEMA attorneys' statements, if quoted accurately, served neither their client nor the public.
"The first thing lawyers should do is keep their clients out of trouble,'' said Ronald Rotunda, a law professor at George Mason University in Virginia who has written widely on legal ethics. FEMA is "in trouble now, and people may be hurt.''
When it comes to testing property for hazards, Rotunda said, a lawyer's duty is to advise the client to do whatever is necessary to find out what problems exist and repair them.
"Willful blindness is something that good lawyers know is unethical and bad lawyering,'' he said. State bar associations can discipline, suspend or disbar lawyers who engage in it.
Another ethics expert, Monroe Freedman, law professor at Hofstra University in New York, went further.
If news accounts of the hearing are accurate, "these lawyers should be disbarred for incompetence,'' he said. "They should also be held liable civilly for complicity in whatever harm was suffered by the residents of the trailers after their knowledge of the severe health risks.''
Even if the lawyers were right in advising FEMA that the results of formaldehyde testing could expose the agency to legal liability, Freedman said, they apparently ignored the possibility that the liability would be much greater if the agency chose not to investigate after it learned of possible health dangers.
Advising against toxics tests would be wrong, experts say
Bob Egelko, Chronicle Staff Writer Sunday, July 22, 2007
The Federal Emergency Management Agency is in hot water again for its treatment of hurricane victims, this time over allegations that the agency covered up health hazards in government-supplied trailers for people who lost their homes. Some experts in legal ethics said congressional indignation should extend to FEMA's lawyers.
The House Oversight and Government Reform Committee heard evidence Thursday that the lawyers had opposed testing for formaldehyde gas in trailers occupied by tens of thousands of families uprooted by hurricanes Katrina and Rita in 2005. Formaldehyde, a wood preservative, has been linked to cancer and other illnesses in high doses.
One e-mail from a FEMA staffer in June 2006 said the agency's general counsel "has advised that we not do testing, which would imply FEMA's ownership of the issue.'' Another agency lawyer told officials not to test without the attorneys' approval, because "once you get results and should they indicate some problem, the clock is running on our duty to respond to them.''
The advice seemed to fit the popular stereotype of lawyers as win-at-any-cost operators who elevate their client's interest above the public good. But one legal commentator said the FEMA attorneys' statements, if quoted accurately, served neither their client nor the public.
"The first thing lawyers should do is keep their clients out of trouble,'' said Ronald Rotunda, a law professor at George Mason University in Virginia who has written widely on legal ethics. FEMA is "in trouble now, and people may be hurt.''
When it comes to testing property for hazards, Rotunda said, a lawyer's duty is to advise the client to do whatever is necessary to find out what problems exist and repair them.
"Willful blindness is something that good lawyers know is unethical and bad lawyering,'' he said. State bar associations can discipline, suspend or disbar lawyers who engage in it.
Another ethics expert, Monroe Freedman, law professor at Hofstra University in New York, went further.
If news accounts of the hearing are accurate, "these lawyers should be disbarred for incompetence,'' he said. "They should also be held liable civilly for complicity in whatever harm was suffered by the residents of the trailers after their knowledge of the severe health risks.''
Even if the lawyers were right in advising FEMA that the results of formaldehyde testing could expose the agency to legal liability, Freedman said, they apparently ignored the possibility that the liability would be much greater if the agency chose not to investigate after it learned of possible health dangers.
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