The Ethics of Emergency Lawyering

Abstract:     
The fast pace of modern law practice increasingly presents clients in situations that demand immediate attention and solution. Unlike medicine, however, the legal profession does not yet consider itself as having an emergency specialty. Yet, observation of today's law practice readily reveals that the analogy is accurate. The pressure of today's rapidly changing business climate, the complexity of legal regulations and relationships and the widening application of law to address a host of problems, all contribute to an increasing need for an immediate, available legal response: "emergency lawyering."

Situations in which attorneys respond to emergencies provide a window on priorities and standards for competence, candor, fairness and service. The emergency perspective affords insight into those areas of a practice that an attorney may not have satisfactorily cultivated and suggests means of improving legal services for clients in crisis. This model of legal services challenges and illuminates the legal profession's attitude toward the overall delivery of legal services.

This article constructs a general theory of emergency legal practice, defining emergency law practice and addressing the ethical, professional, and legal implications of this "emergency" perspective on the lawyering process.

This article suggests that the prevalence of legal emergencies in the day-to-day practice of many attorneys requires attention to this aspect of legal practice as a specialized form of lawyering. By doing so, attorneys can develop this aspect of their practice and serve a significant need of clients in an efficient and effective manner rather than shunning emergencies.

Perhaps the most fundamental concern in developing adequate emergency response has been the assumption that legal representation in an emergency places an attorney at an increased risk of sanction or liability. In particular, the standards for adequate preparation in emergencies are addressed. The article suggests means for attorneys to structure their practices to prepare in advance to provide quality emergency lawyering. The article concludes with some of the "triage" issues in emergency representation by the profession as a whole. The need for emergency representation reaches its zenith when crisis, limited resources and high risks combine with the need for free or reduced fee representation. This class of cases highlights issues of the attorney's and the profession's duty to make legal services available.

Keywords: Emergency lawyering, Legal emergencies, Lawyering process, Law office, Law practice, Criminal law, Corporate law, Business practice, Family law, Client crises, Ethics, Professional responsibility, Duty of competence, Model Rules, Malpractice, Ineffective

JEL Classifications: K10, K14, K20, K30, K40, K41, K42

Accepted Paper Series