The nation — not just the states — watched in horror as the South Carolina Upstate and the North Carolina mountains were attacked in late September by the wind, rain and floods that came from Hurricane Helene.
Some victims of the storm were swept away by rising waters; several remain missing. Roads — some cut, others simply washed away — were left impassable. Water systems were knocked offline or, in some cases, destroyed. Trees were toppled, often bringing power and internet lines down with them. Cell towers failed, were flooded or both. The toll in lives lost and damage done still has not been totaled with certainty.
Much of the work to set things right had been finished or was underway by press time. But what did lawyers and the courts go through before and during the storm? Then, what are the requirements for them to resume serving clients again? What must lawyers and the courts do should they face such a situation in the future?
Early warning
Even before Helene’s rains arrived in Greenville, South Carolina the week of Sept. 22, Alex Kornfeld was served notice that the hurricane was approaching.
The advancing storm’s winds began tickling the trunk and branches of an oak tree outside his eponymous Whitsett Street practice on Sept. 24. Then strengthening as the hours passed, the wind took an even tighter grip on the tree that night. Eventually, its upper trunk snapped, falling along with its branches atop and around the building and over the street, he said. Utility lines entangled with the branches came down as well.
“We had water intrusion. It went through one of the offices,” he said. “We had some damage through the ceiling and the sheetrock.
“It wasn’t nearly as bad as it could have been.”
He positioned industrial-sized buckets to catch some of the leaking water, moved to safety some equipment such as computers, and used tarps to protect other items and divert water. But, Kornfeld said, “We still had a decent amount of water coming in.” Making matters worse, the storm itself still had not arrived; a tree service could not come out until it passed. Once the service and the landlord’s contractors started work, repairs were made in a few days, but the solo criminal and family law practice still could not reopen for about a week.
The firm’s damage was more than that to its offices. It also included lost billable hours.
“We had power back two or three days later, but we still didn’t have internet, so I couldn’t do legal research,” he said. “It definitely set us back about a week. We couldn’t do anything.”
Eric Englebardt, president of the Greenville Bar Association and a partner with Wilson & Englebardt in that city, said the storm and the days in its aftermath were worse than the weeks of the COVID-19 pandemic-inspired shutdown, in some lawyers’ view. The latter forced people to leave their offices to work from home, but that was possible because of internet access. Helene snapped that connection. Even mobile hot spots were of little use because cell towers were either offline or overloaded.
Said Englebardt: “Having the world wide web at your fingers made it possible to do your job. With the hurricane, with so many of us not having internet, it became very hard to work.”
Larger-scale damage
Ryan Boyce, director of the North Carolina Administrative Office of the Courts, sees the hurricane’s damage writ large.
Of the 28 courthouses statewide that had to be closed due to storm damage, several in western North Carolina suffered more than others. Boyce ticked off a list, including Buncombe, Yancey, McDowell, Avery and Mitchell counties, but Madison County’s courthouse in Marshall was hit hardest.
“That historic courthouse was right against the [French Broad R]iver,” he said. “They had 3 or 4 feet of mud, not just water, in the courthouse. … That was the only place where we had any file damage.”
His office does not have a tally of the repair costs for the courthouses because that is borne by the individual counties. Most were closed only a day or two, he said, and all have either reopened their courthouses or made other arrangements to provide services.
Boyce’s office is accustomed to seeing hurricane-caused damage in eastern North Carolina — he cited that caused in New Hanover and Brunswick counties in 2018 by Hurricane Florence — but hasn’t seen such damage in the mountains before. He recalled a conversation with a judge from western North Carolina who mentioned seeing problems caused by snowstorms, which would leave lawyers stuck at home until roads were cleared or the snow started to thaw. “Snow doesn’t wash things away,” Boyce said the judge told him.
Work must continue
Even with the damage and problems caused by Helene, the administration of justice had to continue, experts said. But the North Carolina Rules of Professional Conduct that govern doing so are “rules of reason,” Brian Oten said recognizing, “There are realities that lawyers face in the wake of a natural disaster that must be accounted for.”
But the director of ethics and special programs for the North Carolina State Bar said, communication with clients remains essential. The rules of reason grant some flexibility in how that is done, such as a firm updating its voicemail message or website to tell clients when the law office is likely to reopen or how they can reach their attorney.
Failing to communicate is the source of many problems, said Harvey M. Watson III, chair of the Professional Responsibility Committee for the South Carolina Bar and a partner with Ballard & Watson in West Columbia. Statistics from the state’s Commission of Lawyer Conduct’s annual report show that about half of all complaints against attorneys are filed by clients, many of whom cite a lack of communication. “If they’re in a sort of information vacuum, they get antsy, and that affects the lawyers, too,” he said. But if told early why their lawyer cannot act on a matter, “most people are reasonable.”
Still, “At the end of the day, it’s what the client needs not the lawyer’s own personal circumstances,” he said.
Oten agreed, citing Rule 1.3: Diligence of the North Carolina Rules of Professional Conduct. While the rule offers flexibility, recognizing that what might typically take a week will require more time after a natural disaster, lawyers still have “to act with reasonable diligence and promptness” to represent a client.
“What is reasonable is going to depend on the aftermath,” he said. “There are a lot of things that lawyers did not anticipate when they started to wind down September and head into October.”
Likewise pointing to Comment 3 of Rule 1.3: Diligence of the South Carolina Rules of Professional Conduct, Watson quoted, “A client’s interests often can be adversely affected by the passage of time or the change of conditions.”
Post-storm forbearance
Recognizing problems caused by Hurricane Helene, both states’ Supreme Courts issued orders giving lawyers brief professional respites. South Carolina’s first order came Sept. 30, followed by others on Oct. 1 and Oct. 4, creating “filing ‘holidays’” that counted filings made by Oct. 9 as having met deadlines. In North Carolina, Supreme Court orders dated Sept. 29 and 30 set and extended similar filing holidays through Oct. 14 for 25 Piedmont and mountain counties.
Summing up the South Carolina orders, Watson said, “The court reminded everybody: ‘You have some flexibility here. Please be considerate.’”
Pointing to the evolving situation, N.C. Chief Justice Paul Newby also left some discretion to local officials.
“Considering the severity of the conditions in certain counties of our State, I urge local judicial officials to exercise their own authority to grant additional relief and accommodations as necessary to protect courthouse personnel and the public while honoring the Judicial Branch’s commitment to open courts and the prompt administration of impartial justice,” he wrote in the order.
Both states also have provisions to allow out-of-state lawyers to practice in their courts in an emergency, Oten and Watson said. North Carolina did so, a release from the State Bar says, allowing them to work into January if practicing through a legal services organization.
Familiar challenge
Dawes Cooke Jr. has seen the problems of hurricane recovery play out before.
Now a member at Barnwell Whaley Patterson & Helms in Charleston, South Carolina, he was a young lawyer practicing in the port city when Hurricane Hugo roared ashore in 1989. Like their Upstate and N.C. mountains counterparts, law firms there were left reeling by that storm’s rains and flooding. His practice only avoided being flooded because it was in a modestly higher part of the historic downtown. But that still did not help.
“We were pretty much dead in the water for a period of time,” he said. “For the most part, things ground to a halt. The courthouse was closed, so there was no court. Our clients were closed down.”
The latter had a ripple effect; clients were not at their businesses so they could not take care of their bills, which back then were paid by old-fashioned oversized commercial checks and arrived by conventional mail.
Recalled Cooks: “It was tight from a business standpoint. We couldn’t send out bills; we weren’t getting revenue in on a regular basis.”
Two changes have made recovery from such an event now easier than it was in 1989. First, COVID-19 helped firms develop the ability to work with their staff members widely dispersed, he said, including using two technological leaps the pandemic-inspired shutdown made common: “You never heard of Zoom before COVID. We have remote desktop so I can log in from almost anywhere if I have to.”
Second, the adoption of online law office management platforms has become more common. Cloud-based systems that replaced typewriters and paper-and-folder files help ensure a firm can still function if one key service remains available. “I’m going to say overall it would be easier [to recover] today unless your internet is knocked out for a prolonged period of time,” Cooke said. “If our internet was cut off for weeks like electricity was back then, we’d be dead in the water. You can’t do anything without the cloud.”
Though the post-Hugo recovery was difficult, it did not improve impossible, a point he made at a forum about Hurricane Andrew, which struck Florida and the Gulf Coast states in 1992: “I think the only advice I could give them was: ‘There is life after a hurricane. … Charleston came back bigger and stronger than it was before, and you hope that would happen in other places as well.’”
Next time
So, what is a firm to do to be prepared for the next Hurricane Helene?
Some state requirements touch on recovery-like issues, but none specifically address natural disasters, Watson and Oten said.
South Carolina’s Rules of Professional Conduct urge lawyers to have a plan for disasters but do not set a mandate. They do, however, require lawyers to have a succession plan — a procedure for someone to take over clients in case of a medical emergency — which leads lawyers to think about contingencies. North Carolina does not require firms to have a disaster plan either, Oten said. He pointed out that each law practice and natural disaster is unique, making it hard to write requirements for a plan or even offer a model policy.
“The bar is in the business of protecting the public, and one way we can protect the public is to equip lawyers,” he said.
If a plan is made, it does not have to be perfect or all-encompassing. Boyce, director of the Administrative Office of the Courts, said his office works with each judicial district on a “continuation of operations plan,” and that it urges that the plan be kept up to date. In this case, Helene ran beyond the scope of those plans; his office, for instance, had to go as far as ordering portable toilets because of damage to water and sewer systems. But “I think [the plans] were very helpful at least as far as getting people organized at the very beginning,” he said.
Another workaround his office embraced is innovative — internet access via the Star Link system. Made famous by Elon Musk, the system’s relatively small ground kits connect clients to a satellite-based Internet system. North Carolina bought 10 of the kits to restore service to western courthouses, Boyce said, and it plans to buy more and store them at sites across the state in preparation for future disasters.
Another item several sources mentioned as a key to disaster preparedness is cloud backup of files or cloud-based law office management systems.
Lee Taylor, a longtime domestic law attorney turned owner of Stratus Legal Consulting, represents Canada-based Clio, a company offering the latter. (Similar companies include MyCase and NetDocuments.) Working with Clio has transformed how she sees the physical set-up of a law practice: “I could never feel comfortable having a server in my office without having cloud-based backup,” she said and, “I treat my equipment as disposable.”
A system such as Clio’s can manage aspects of a firm’s workload from initial client intake to document management to final billing. Instead of the resulting files being stored in a server at a law office, they are held in the cloud. A lawyer can access them from his or her office desktop computer, a laptop sitting on a coffee table at home or a smartphone anywhere. It frees lawyers from having to come to the office to work and allows firms to lower overhead by using less space. The cost typically runs $100 to $120 per month per user, she said, but discounts are available on yearly contracts.
“Every aspect of your legal practice is in Clio,” she said. “You log into it just like you would Gmail.”
The hurricane has happened too recently for firms to reach out for an option such as Clio yet, Taylor said, but she expects that to change. “My belief is, in the future, I will see people inquiring. … I would be incredibly surprised if I don’t see anyone in December say, ‘It’s time to make a change here.’”
There are still other steps that can be taken to help after a disaster such as Helene. One step Taylor suggested is that lawyers also need to take care of themselves — not just the damage to their practice or their homes but their mental well-being, too. “You have to step back, take a rest and regroup. Being a good attorney and taking care of your clients means taking care of yourself.”
She also is working with Shawn Holahan, a Louisiana attorney who went through Hurricane Katrina when it devastated New Orleans in 2005, to develop a continuing legal education program on disaster preparedness. She sees a connection between the storms.
“This feels like western North Carolina’s Katrina,” Taylor said.