Legal Advice in Crisis Training for Government Lawyers

Perspectives from the United States and Sweden

ERIC K. STERN, BRAD KIESERMAN, TORKEL SCHLEGEL,

PER-AKE MARTENSSON, AND ELLA CARLBERG

As noted elsewhere in this volume, traditional forms of legal education in the United States and around the world have not always prepared lawyers well for the rigors of crisis management.

The positive results of FEMAs AIC project stimulated the posing of an additional question, namely: Are the challenges and good practices for cri­sis lawyering identified by US government leaders and high-performing US government lawyers unique to the United States context, or do they apply to a significant extent to other highly developed countries as well? This question was explored in the context of an ongoing and fruitful partnership with the Swedish Civil Contingencies Agency (MSB) and a parallel Swedish research and professional educational effort organized by Swedish Defense University.

The FEMA Advice in Crisis Project

As part of a broader constellation of efforts to improve the capacity of FEMA in the post-Hurricane Katrina context, FEMA leadership identified the uneven performance and impact of the lawyers at the FEMA Office of Chief Counsel (OCC) as a source of vulnerability in managing disasters under the legal and financial umbrella of the Stafford Disaster Relief and Emer­gency Assistance Act.¹ Seeking to better understand the legal advice needs of FEMA leaders and the secrets of success employed by a limited number of star disaster lawyers at the agency, FEMA's OCC partnered with a team of researchers based at the University of Virginia.

The project focused on the specific crisis-management context of disaster management (with a certain emphasis on the response and early recovery stages) and posed three central questions:

• What do leaders need from their lawyers in disasters?

• How can lawyers most effectively advise their leaders in disasters?

• How can leaders get the most out of their lawyers in such situations?

The first two of these questions (but not the third) will be discussed in this chapter.

Note that, as in other crisis contexts explored in this volume, disaster op­erations require high-level advice and decision-making processes to function under very difficult circumstances. As noted in the introduction to this volume, it is useful to conceptualize crises (including natural and anthropogenic disas­ters) in terms of three subjective criteria: threat, uncertainty, and urgency.³

What Do FEMA Leaders Need from Their Lawyers in Disasters?

The AIC research found that FEMA leaders want lawyers who will be loyal and trustworthy members of their teams, working effectively with other team members toward mission fulfillment. They want lawyers who can keep up with the rapid pace associated with the response and recovery phase of a disaster and who have the endurance to keep up that pace for weeks or months at a time, if necessary. They want lawyers who have a can-do attitude and who are willing to work creatively with the available legal authorities—such as those stemming from the Stafford Act—to enable rapid development and deployment of solu­tions to urgent humanitarian and administrative problems.

Crisis leaders do not want lawyers who are risk-averse and whose knee-jerk reaction is to say “no” in a climate of fast-paced crisis decision-making, where adaptation and innovation are essential to success. When identifying obstacles to a potential action, leaders want their lawyers to distinguish clearly between matters of habit (“the agency never does that”), guidelines, policy, and statu­tory prohibitions. Leaders and their lawyers can overcome some types of ap­parent obstacles more easily than others. Habits may be easier to change than policies, and policies are easier to change (or circumvent) than laws. Good leaders value integrity and judgment. Leaders want lawyers who are able to manage—rather than avoid or seek to completely ignore—risk and contribute to solving urgent crisis problems. However, when the legal risks are too great, they also want a lawyer who is willing and able to pull the emergency brake if the team is on a collision course with the law. As one seasoned federal coor­dinating officer put it in one of the FEMA AIC interviews, “I don't want my lawyer to keep me out of court. I want my lawyer to keep me out of jail.”

An important finding from the AIC leader interviews was the validation of the so-called SALT performance standard (defined below) that came to be adopted by and widely accepted at FEMA OCC:

SALT is a set of individual performance criteria linked to the FEMA Office of Chief Counsel (OCC) Mission Statement. OCC employees apply SALT to assess their legal advice, counsel, risk analysis, dispute resolution services and other assignments. Consistent application of SALT supports the OCC's mission accomplishment and reinforces the relationships necessary for our senior lead­ers and client-partners to feel confident in seeking and using OCC services as an integral part of their business processes. In every action and encounter, and in all the advice we provide, we are:

Solution-oriented—Where others see obstacles, we focus on legally viable solutions and outcomes.

Articulate—We express our positions and explain law and policy in an or­ganized, well-reasoned and persuasive manner, both orally and in writing. We use language that is appropriate to the client-partner, without use of un­due “legalese” that might confuse or distort the message.

Legally Sufficient—To the extent that operational conditions permit, we apply the aphorism “Salt away the facts, the law will keep.” This means we aggressively develop the facts before applying the law to arrive at legal conclusions and op­tions. When we render a legal opinion, in any form, we cite legal authorities

(using the Bluebook for all written work) to demonstrate that our opinion sub­stantially satisfies applicable statutory, regulatory and federal executive branch requirements so that our client-partners and those who may later review our opinions understand our reasoning. We are professionally responsible and up­hold our duties to our clients, courts and the legal profession.

Timely—We deliver advice and counsel on demand, where and when our client-partners need it, and aggressively anticipate issues and obstacles to mission accomplishment. By being proactive, responsive and accessible, we prevent problems. We meet the timelines required to support critical or ur­gent agency operations, and communicate with our clients to establish ap­propriately prioritized timelines for routine matters. To the extent that op­erations permit, we provide our colleagues with sufficient time in which to review, consult and coordinate on complex issues.⁴

Note that the often severe time pressure and resource constraints associated with disasters (and other forms of crisis situations) create recurring professional­quality dilemmas for crisis lawyers.

Based on a review of the literature and the extensive AIC project interviews described above, the AIC researchers were able to distill three good practice models informed by state-of-the-art thinking from the literature and gleaned from the skill set of a number of the best-performing and most experienced FEMA lawyers. The interview responses converged around three key secrets of success that are consistently employed by high-performing lawyers, namely: preparation, systematic holistic analysis, and social competence/group awareness.

The first model (“PREP”) focuses on mission preparation and outlines measures lawyers could take to be better prepared for field deployment, en­abling them to orient themselves rapidly in a disaster, its sociopolitical con­text, and the crisis team (e.g., the leadership of a FEMA Joint Field Office) and to prepare themselves to pull the emergency brake if legal, ethical, or other relevant redlines are about to be crossed. The second model (“SOAP”) outlines a systematic procedure for producing and delivering substantive legal advice and for managing risk (informed by a holistic analysis of practical, legal, and ethical considerations) to leaders. The third model (“GAIN”) ex­plores the group context and the complex negotiation of role demands neces­sary to gain trust and influence and strike an appropriate balance between team play and the unique responsibilities of the lawyer in a crisis team. (See below for more detailed descriptions of the content of the models.)

Building on the AIC research, the above-mentioned practice models, and the SALT performance standard, a four-day training for the FEMA cadre of lawyers was developed and delivered in May 2011 in Charlottesville, Virginia.

Good Practice Modules: A Closer Look

In this section we provide an overview of the good-practice models PREP and GAIN. In somewhat greater detail, the SOAP module (explicating a step-by- step approach for the production and delivery of substantive legal advice in crisis) will be explained.

PREP

Leaders and top lawyers at FEMA agree that a key prerequisite for success is being prepared for the rigors of practicing law in crisis or disaster environ­ments.⁵ The pace is fast, and disaster lawyers must hit the ground running. The following section outlines four key categories of preparation that may be helpful in improving the likelihood of successful performance. While they do not guarantee success, they clearly improve the odds. Furthermore, failure to prepare will stack the deck toward failure.

The following bullet points summarize some ways to prepare oneself for crisis operations and to pave the way for good collaborative relationships with colleagues (see also the GAIN model in the next section):

• Prepare for availability and extended absence: Two of the factors most emphasized by FEMA leaders and top-performing lawyers interviewed by AIC researchers are availability and commitment. Clients want lawyers to be readily available and prepared to commit to longer deployments as lawyer turnover is perceived to be disruptive.

• Establish predeparture communication by phone and/or email with key team members and collaborators inside and outside of the organization. This enables lawyers to connect with their clients, other team members, and partners at an early stage, by establishing relationships and providing com­munication links that can help to improve the lawyer's situational aware­ness going into an operative or other relevant crisis lawyering setting.

• Meet and greet leaders (e.g., a FEMA Federal Coordinating Officer) and team broadly on arrival. Lawyers should follow up their predeployment contacts, and complement these contacts with additional personnel intro­ductions, once on site. By doing so, lawyers signal not only sociability but also approachability and willingness to be a part of the team.

• Know your redlines. In engineering, the term “redlines” refers to the maxi­mum engine speed at which an engine or motor and its components are designed to operate without causing damage to the components themselves or other parts of the engine. For emergency management lawyers, “know­ing your redlines” means having a clear understanding of ethical duties and the limits of the law and how these bounding factors might present themselves in a disaster setting, before providing advice in crisis.

Furthermore, the prospects for providing successful advice improve if law­yers do not wait for field deployment or first meetings of dedicated crisis/di- saster teams at headquarters to begin mission reconnaissance. Once assigned, lawyers should immediately begin informing themselves about the situation, context, and role they will be assuming. Similarly, it is critical to gather/secure access to general and specialized legal resources on paper and/or in electronic form. This is particularly relevant for field deployments, but it can also facili­tate the development of timely and legally sufficient advice at headquarters or in interagency environments. Effective crisis attorneys search and com­pile resources for anticipated issues involving, among others: authorities (for FEMA and collaborating agencies), regulations, guidelines, policy, opinions, precedents, new or recent initiatives (or changes in policy or guidance), as well as particularly relevant points of local law.

GAIN

Based on the collective experience of crisis leaders and some of their finest and most effective attorneys, AIC researchers developed the GAIN model, which identifies some of the key social-behavioral elements of advice in crisis.⁶ The elements of GAIN include: Group Dynamics; Active Engagement; Individual Requirements; and Negotiation.

Group Dynamics: Much of the work of FEMA lawyers takes place in the context of groups or teams. Developing the ability to “read” those groups, and understand their culture and processes, can help lawyers identify op­portunities and strategies to intervene in the right way, at the right time, for maximum impact. Groups are thought to change over time and exhibit different characteristics at different stages of maturity. Furthermore, groups exhibit different mixes of competitive/conflictual and collaborative tenden­cies that can impact positively or negatively (e.g., so-called groupthink) on information-sharing and group decision-making.⁷

Active Engagement: The AIC interviews generated numerous descriptions of lawyers who were marginalized or—in extreme cases—removed from their teams and sent home. Once again, the big challenge for lawyers is to find ways to engage as team players in order to bring their knowledge and judg­ment to bear to the benefit of the disaster-management effort. In some con­texts and situations, according to leader and team preferences, lawyers may engage as technical experts drawing closely on core professional expertise. In others, lawyers may be expected to serve as “wise counsel,” weighing in more broadly by drawing on their general/domain knowledge and problem­solving experience. Effectiveness and impact tend to be maximized through active listening, interacting with others in ways that build social capital and goodwill over time, developing understanding and empathy for other roles (leader, crisis communicator, technical expert, etc.) and picking one's battles.

Individual Requirements: While the attorney is generally part of a broader multiprofessional crisis team in FEMA settings (as in other crisis-management settings), attorneys may face cross-pressures and duties that are somewhat different than those of other players, not least in the government setting. Who is the client and to whom is the ultimate loyalty owed for the FEMA lawyer? FEMA leaders tend to want (1) their lawyers to be loyal and (2) leader-lawyer communications to be privileged (as in private-practice settings). However, in the government context, lawyers may have competing obligations to the law, to agency leadership and policy, to the Office of Chief Counsel, to professional ethical standards, and the like.⁸ Team play must be balanced with living up to the individual requirements associated with the government attorneys role.

Negotiation: The term “negotiation”—in its various meanings—captures a num­ber of modes of social interaction which are critical for crisis lawyering. First of all (to sum up the discussion above), lawyers must negotiate the complex social and political-administrative terrain in which they are embedded and operating in crisis. Second, lawyers can contribute to conflict resolution, consensus-building, and negotiating viable solutions within their crisis teams and between these teams and headquarters. Third, lawyers (including FEMA lawyers) are often involved in negotiations with outside partners and parties that are critical to the success of disaster response and recovery operations.

SOAP

Sense-making: The first step toward effective substantive advising in a disaster is to make sense of the situation (see the discussion of crisis leader­ship tasks in the introduction to this volume).⁹ This may seem obvious, but it is a nontrivial and ongoing task as disaster and postdisaster contexts tend to be complex, dynamic, ambiguous, and uncertain. Just as one feels as if one is getting one's bearings and has a good understanding of the situation and problems to be faced by the team in which the lawyer is embedded, new developments will necessitate updating and rethinking. It is an iterative pro­cess, one that may require abandoning previously held views and priorities¹⁰ as the operating picture evolves. While sense-making is in part an intuitive activity," it can be facilitated and improved by using a set of core questions to challenge the environment and improve contextual and situational awareness. This is not only a way of combatting the phenomena of stress-induced tunnel vision and groupthink; it is also a good practice for lawyering and decision­making under more normal situations.

Asking the following questions can help lawyers (and leaders) better make sense of the situations facing them and improve performance in disasters and crises:

• Which values are at stake in this situation and for whom?ⁿ

• What are the key uncertainties in this situation (and how might informa­tion gathering, analysis, consultation, etc., reduce them)?

• What is the time frame for developing and delivering advice (which is in turn related to the client or team's time frame for action)? Are there ways of buying time without compromising the mission and public affairs messag­ing or otherwise delaying the work flow among the team?

Effective sense-making—a key part of problem solving—is facilitated by contextual awareness. A very common source of failure in disaster manage­ment (not to mention public policy writ large, business, and personal life) is building solutions around underdeveloped or inappropriate specifications of the problem1³ that neglect critical values and stakeholder interests?⁴

Options: In providing advice to leaders and other clients in disaster opera­tions, lawyers will engage at different stages of the problem-solving process. In some cases, a decision maker will have a preferred option. For example, in one disaster in a remote Alaskan village, the Federal Coordinating Officer (FCO) strongly preferred partnering with voluntary agencies to leverage assistance resources to provide replacement housing. Accordingly, FEMA attorneys de­veloped a transactional framework allowing the agency to provide funds for log-house kits for displaced households, which were constructed under the su­pervision of the Mennonite Disaster Service and furnished by Samaritan's Purse.

The attorney is likely to face questions of the following nature:

• Are we authorized (or can you find me the authority) to do X?

• Are we prohibited from doing X?

• What are the legal (and possibly ethical, practical, political, or other) risks associated with doing X?

• How can we manage the legal and other risks associated with doing X?

• Is there a better (e.g., faster, cheaper, more effective, and/or less risky) way than X to achieve the goal?

• What were the lessons learned the last time we did X?

Clients may also identify a short list of two or more options under serious consideration and ask for a relative analysis of the costs, risks, and/or benefits associated with them. If there is a single or limited number of favored options on the table, the attorney should follow the assessment process described below. In other situations—and especially if the lawyer is brought in to the process at an early stage—lawyers may be asked to be a part of the process of identifying or developing options. This may involve drawing upon historical/ organizational memory or the current set of procedures to help generate op­tions, or it may entail a creative process of coming up with a novel approach. Obviously, the latter is more likely to be necessary when FEMA is facing a situation that is qualitatively or quantitatively different from those faced in the past and that have shaped the frame of reference and established action repertoire. It is crucial, in such circumstances, for the attorney to understand the delicate interface of law and policy and the need to work in partnership with program staff in developing novel approaches.¹⁵ Failure to involve and integrate the subject-matter program experts can lead to perfectly legal plans on paper that are not executable on the ground. Program staff must have buy­in on the suggested solution, as they will actually have to execute the plan and deal with the consequences. Again, once an option or limited set of options has been produced, the lawyer should shift to assessment.

Assessment: The assessment process is critical to producing high-quality advice in crisis. While assessment should be seen as a broad process drawing on multiple perspectives in relation to the option(s) under examination, many law­yers focus explicitly on only one or two of these perspectives (and perhaps treat some of them in a more intuitive or explicit fashion). The best disaster lawyers, however, analyze options in a systematic and comprehensive fashion. This process draws on four dimensions and gives attorneys the ability to weigh and integrate the results of this process in the advice they give to their clients and teams. The key dimensions of assessment are: authorization, prohibition, risk, and judgment.

Let us begin with authorization. Does the option appear to be authorized by the Stafford Act or by supplementary authority? Disaster lawyers should keep in mind that Stafford was deliberately formulated to be a broad and flexible instru­ment and is subject to alternative and evolving opinions. The authorities avail­able under Stafford may be interpreted broadly or narrowly, in part according to the policies and priorities set by FEMAs leadership (and the White House), as well as the zeitgeist of the times. While the Stafford Act tends to loom large in the assortment of authorities available to FEMA, it is critical to keep in mind that other supplementary authorities may be available and provide authoriza­tion for actions that clients deem necessary or useful in addressing the needs of responding organizations, survivors, and other parties. Should these authorities not be directly available to FEMA, at times they may be borrowed from other agencies through cooperative agreements. For example, FEMA assisted the United States Agency for International Development (USAID) with assets and personnel to support the response efforts after the 2010 Haiti earthquake. These assets included Mobile Emergency Response Support personnel and equipment, the Incident Management Assistance Team, and an Incident Response Vehicle to help establish communications for relief efforts on the ground and provide subject-matter expertise and technical support. These activities were undertaken pursuant to an Inter-Agency Agreement with USAID under the authorities of the Foreign Assistance Act of 1961. Part of being solution-oriented (and “getting to yes”) is about being creative in developing (and arguing) defensible rationales for authorizing practically necessary action under extreme circumstances.

The next dimension of assessment is prohibition. Is there a specific legal or policy-based prohibition, and from what legal authority does it derive? Law­yers are likely to be particularly aware of and sensitive to such prohibitions when they involve potential infringements of fundamental rights and protec­tions. When examining prohibitions and other forms of potentially prohibi­tive constraints, it is critical to distinguish between types of prohibitions and whether they stem from the United States Constitution, statutes (including appropriations law), regulations, executive orders, policies, tactical guide­lines (e.g., a FEMA letter from the FEMA administrator), and/or past agency policies and/or practices. Note that lesser-order prohibitions (especially those stemming from a past agency policy) may well be amenable to change or dis­pensation in consultation with leaders within or outside of FEMA, especially if in tune with broader trends and shifts in policy and/or political and opera­tional imperatives. Situational and contextual factors will determine the vi­ability and appropriateness of such courses of action. When communicating to clients that certain prohibitions appear to be insurmountable obstacles to a par­ticular course of action, lawyers should be specific about the source and nature of those prohibitions. It is important to work with the client on formulating a Plan B or C if the favored course of action appears impossible to implement. This is a central aspect of being “solution-oriented,” as suggested by the SALT performance standards. It is also important to store these non-starter options for future reference in case there are calls for post-crisis legislative proposals.

The third dimension of assessment is risk. What are the legal (and other) risks associated with this option in relation to other alternative courses of action or inaction? Disaster management is fraught with risk, and disaster managers are aware and often willing to accept a degree of (and in extreme situations more than a little) risk. Many of the leaders interviewed strongly emphasized their desire to do the right thing despite potential legal exposure. Lawyers who seek to avoid legal risk completely will be perceived as obstacles to effective disaster management and are likely to be marginalized within their teams. Furthermore, legal risks must be weighed against other forms of risk (e.g., to life, property, FEMA's reputation, political viability, ethics in the broader sense of the word, etc.) when giving advice. The old adage “desper­ate times call for desperate measures” captures the balancing act that FEMA leaders are called upon to undertake when making crucial decisions during and in the aftermath of disasters.

When it is (or may be) necessary to embark on a course of action fraught with legal risk, part of the lawyer's task is to look for ways of managing or mini­mizing these risks. For example, contemporaneous documentation (not only of the legal opinion but also of the situational imperatives and deliberative process behind the measure in question) may help to protect the leaders and lawyers involved. Formulating a viable exit strategy should also be part of the imple­mentation plan. What are the metrics? Are there objective standards in place? How will this be conveyed to the state, applicants, the public, and Congress?

Last but not least, it is imperative to exercise and apply judgment to the matter in question.¹⁶ Leaders (and other clients) told the Advice in Crisis investigators of their strong motivations to do the right thing during and after disasters. Leaders of good character, judgment, and intention often have an intuitive sense of what needs to be done in critical situations like disasters. Bases for such normative determinations may have to do with meeting the urgent needs of survivors, preventing disproportionate direct or collateral damage, or living up to fundamental norms of fairness. As stated succinctly by one veteran disaster lawyer interviewed by the Advice in Crisis team: “Is this for the greater good?” As in other areas of the law, it is necessary to ad­dress that question in two ways:

• Is this for the greater good in this situation?

• Is this for the greater good in terms of the precedent it would set and/or the incentive structure it would create?¹⁷

One aspect of exercising judgment is knowing when to seek different per­spectives, consult more experienced attorneys, or elevate a decision. Further complicating this exercise in judgment is the sense of urgency and attendant time compression associated with crises. Therefore, one important and recur­ring role decision makers will ask lawyers to play is helping to decide when “to ask permission” and when to seek “forgiveness.” It is unlikely that the lawyer will have the time and information necessary to thoroughly consider all the potential options and consequences associated with a particular decision during crisis operations. Emergency management lawyers must come to the table knowledge­able along with a strong ethical compass and readily accessible network for tech­nical “reachback” (e.g., to FEMAs OCC!). Without these capabilities, the lawyer will not be prepared to exercise and apply judgment effectively in crises. Finally, one of the most important dimensions of judgment is determining whether a particular solution is practically viable and can be implemented. While the law­yer may not be the only one around the table who can weigh in on the practical­ity or mechanics of implementation, lawyers may have highly relevant input to contribute on this point because of their legal expertise and general knowledge and experience. Disaster management, like politics, is the art of the possible.

Provision of Advice: Once the previous steps have been completed, lawyers will need to communicate the advice produced to clients and/or to the disaster management teams in which they are embedded. Doing so effectively requires adapting and packaging the advice in ways that are appropriate to the situation and the context in which the advice is being given, as explored in the socio-behavioral (GAIN) dimension above. Consider the following factors:

• Situation: Is the work taking place under crisis-like conditions, and what is the time frame involved? How much pressure is on the disaster manage­ment team and its leaders?

• Organizational context: What is the nature of the organizational context (headquarters, regional office, Joint Field Office, etc.) and the local culture?

• Venue and form: Is it most appropriate to convey this advice to a leader or other client in a one-on-one situation, at a senior staff meeting, at an all­hands meeting (generally not!), at a meeting with state and local officials, or some other forum? Should one deliver an oral or a written opinion? If written, will an informal email message suffice, or is a more formal written document necessary?

• Risk picture: Generally speaking, it is better to package advice in terms of alternative levels of risk associated with the option(s) in question rather than as a binary black-and-white (i.e., “you can or cannot go forward with a particular course of action”). However, in cases characterized by unacceptably high levels of legal risk (and not least when compensating humanitarian imperatives are not part of the picture), wise leaders want their lawyers to be prepared to pull the emergency brake and express their objections in the strongest possible terms. Note that contemporaneous and comprehensive documentation is part of managing risk and likely to be of great value when difficult questions are subsequently asked—and criticism forthcoming—in the wake of the crisis or disaster.

• Leader/collaborator personalities: Clients vary greatly in their approach to processing information, open- versus closed-mindedness, big-picture versus detail orientation, familiarity/expertise with the relevant legal issues and modes of legal reasoning, ability to function in stressful environ­ments, and so on. The most effective disaster lawyers cultivate the ability to adapt to the personalities and leadership styles of their clients. Given the same problem and assessment of options, a lawyer might choose to do a three-minute nutshell brief to a big-picture and action-oriented leader but present the same material and results in a fifteen-minute briefing to a detail-oriented, reflective, and legally interested leader. In this sense, being articulate in the SALT sense described above is partly in relation to the person(s) to whom the advice is being delivered. As noted, provision of advice should be consistent with the SALT performance standards and be: Solution-oriented, Articulate, Legally Sufficient, and Timely.

Finally, lawyers can and often should play a role in developing or review­ing messaging/external affairs guidance pre- and post-decision. For example, in response to the devastating April 2011 tornados that struck Alabama and Mississippi, FEMAs OCC worked in conjunction with the White House, with FEMA leadership at headquarters and in the field, and with program staff on developing a streamlined private property debris removal plan called #Opera­tionCleanSweep. OCC also assisted the external affairs and program staff on press releases and fact sheets. Furthermore, OCC engaged in gathering data for lessons learned from the project. Despite occasional tensions between lawyers and crisis communication professionals (such as public or external affairs officers) over balancing transparency, responsibility-taking (and pro­tection of organizational brands), and limiting legal exposure when things have gone wrong, heedful interrelating among lawyers and communicators tends to pay significant dividends.

Swedish Civil Contingencies Agency/Swedish Defense University Crisis Legal Advisers Initiative

In this section we describe a parallel initiative that developed in Sweden in the period from roughly 2014 to 2019. The Swedish initiative had roots in several intersecting streams of activity. One was a large-scale European Union U 7th Framework Program (called “AniBioThreat”) focusing on the challenges of coping with animal-borne diseases in the European context. One of the key findings of the project was a need to strengthen expert networks (including the legal dimension) in order to support leaders in crisis situations. This project led to the creation of a multiagency legal advisers network focusing on bioterror­ism in 2012. A second key stream of activity was the ongoing societal security/ homeland security (broadly defined to include emergency management) sci­ence and technology collaboration between the United States (Department of Homeland Security's Science and Technology Directorate) and Sweden (Swedish Civil Contingencies Agency). One of many collaborative projects and initiatives in this constellation was a project examining methods for better preparing strategic leaders (and their advisers) for the rigors of crisis manage- ment.¹⁸ This work also served to highlight the need to prepare not only leaders but also key crisis management collaborators (such as legal advisers and cri­sis communication experts) to work together effectively under highly stressful conditions. Third, building on the AniBioThreat results and vivid experiences from major crisis events—such as the Swedish forest fires of 2014 as well as subsequent events such as the Ebola outbreak in West Africa, the migration crisis, and several incidents involving terrorism—there was growing awareness of the need to to prepare and better connect lawyers serving in national gov­ernment agencies and regional governments. As a result, the chief of the legal division at the Swedish Civil Contingencies Agency (Torkel Schlegel) and other leaders in the government, legal, and crisis-management communities (e.g., Per-Ake Martensson) took steps to develop a broader network connecting legal advisers with potential roles in crisis and emergencies. These developments set the stage for exploring the relevance of the FEMA AIC concept to Sweden. Somewhat surprisingly for some, it turned out that the AIC methods addressed general issues of crisis lawyering that largely transcended the legal, cultural, and political-administrative differences between Sweden and the United States.

A series of scholar-practitioner workshops were held in Sweden to explore questions parallel to those that drove the AIC project. Swedish lawyers were brought together to discuss their experiences of working under crisis condi­tions, as well as to what extent traditional Swedish legal education prepared them for crisis lawyering. With the partial exception of specialized operational lawyers from the Swedish military and police, the consensus was that tradi­tional legal education and legal career paths in Sweden did not adequately pre­pare lawyers to support leaders and contribute effectively to multidisciplinary teams in crisis situations. In addition, many of the Swedish lawyers found that the AIC framework not only provided guidance for crisis situations but also was conducive to improving lawyers' performance, problem-solving ability, and client relations in other situations where gaps between decision maker inten­tions and legal conclusions can emerge. Furthermore, it was noted that lawyers were often not included in crisis teams or crisis staff organizations—despite the fact that the work of these bodies often involve navigating complex legal issues.

Similarly, Swedish leaders and crisis communication experts were asked about their experience of working with lawyers in crises and emergencies and what they wanted and needed from their lawyers in such extreme situations. The results of the workshops were startlingly similar to the AIC findings. Leaders had mixed experiences in working with lawyers, and lawyers were perceived as po­tential liabilities as well as potential assets in crisis management teams. Swedish leaders wanted their lawyers to be prepared and have a deep and well-grounded understanding and awareness of the situation and leaders' concerns; to be con­vincing, accessible, and collaborative and social, creative, and flexible and able to keep up in fast-paced situations; to have the stamina to participate over the course of a prolonged operation or mission; to be able to tolerate uncertainty; to be able to cope with and manage risk; to be proactive, well-informed about the law and their organizations, loyal and trustworthy, competent, pragmatic, and problem-solving; and to be able to pull on the emergency brake if needed.

The key findings of the Swedish workshops were as follows:

• The quality of crisis legal services delivered to Swedish leaders varies con­siderably across lawyers and domains, and many government lawyers are ill-prepared and -equipped to cope with crisis conditions.

• Swedish government lawyers have a significant need for supplementary training to improve their ability to participate in crisis management efforts.

On the basis of these exploratory activities in 2015, the Swedish Civil Con­tingencies Agency asked the Swedish Defense University in late 2015 to col­laborate in developing an interactive pilot Legal Advisors Course, targeting lawyers working in civilian agencies, the defense sector, and county govern­ments. With active support from FEMA (which provided materials and ex­pertise), a combined team of experts from the legal division of the Swedish Civil Contingencies Agency (authors Schlegel and Carlberg), and the Swedish Defense University (Stern, Martensson, and Marika Eriksson, an experienced practitioner of military operational law) developed a four-day Crisis Legal Advisors course culminating in a major scenario exercise.

In the initial delivery, FEMA AIC training materials were used exten­sively. Participants benefited greatly from remote participation by former chief counsel of FEMA Brad Kieserman (who gave a much-appreciated video briefing) and the presence of his Swedish counterpart Torkel Schlegel (who participated in the entire workshop). The feedback from the initial delivery was highly positive from the participants and the Swedish Civil Contingen­cies Agency. The SOAP and GAIN modules (briefly described above) were particularly well received. The original PREP module was perceived by some participants as more FEMA-specific and less relevant to participants who were unlikely to become involved in field deployments. Some participants expressed a strong preference for teaching materials in Swedish and portray­ing more familiar roles and agency contexts.

The course—which has consistently received rave reviews from participants—has been incrementally and iteratively revised from year to year. Additional teaching cases and exercise materials in Swedish and grounded in Swedish political-administrative settings have been developed, including an innovative multiprofessional exercise design in which cells of lawyers practice working in multiprofessional teams alongside seasoned crisis leaders and cri­sis communications professionals. The PREP module and associated activities have been reworked for greater relevance to those who may experience crises in their own offices or buildings across town. That being said, the crisis events of recent years (e.g., the large-scale wildfires in Sweden in 2018) have created a number of situations in which Swedish lawyers have been thrust into situ­ations in which “field lawyering” in relatively remote locations at home and abroad have been required, reinforcing the relevance of the PREP module as originally formulated as well.

Partly stemming (as noted above) from the early work in building a crisis legal advisers' network, the Swedish Crisis Legal Advisors Course has over the course of five deliveries contributed to the further extension of such networks and the development of a broader community of practice and the institu­tionalization of good practices with regard to crisis lawyering in Sweden. For example, on October 26, 2016, the Swedish Association of County Boards (www.lansstyrelsen.se) created a mutual legal support network connecting lawyers from the various counties across the country. Tellingly, the coordi­nating group for the network (officially the Collaboration Group for Legal Support in Crisis) was code-named “Lst SALT,” explicitly referencing the performance standards propagated in both the US and Swedish legal advice in crisis projects. The recent emphasis has been on revitalizing the Swedish Total Defense concept, civil defense, and active preparations for coping with a broad spectrum of potential crisis contingencies, including various forms of hybrid warfare and military hostilities.

Conclusions

Crises are tough tests of the ability of societies, organizations, and professionals to adapt to severe and highly stressful working conditions. Lawyers—not least government lawyers—have a key role to play in guiding crisis response and recovery. Crises place extraordinary demands on lawyers and on the leaders they serve and the other professionals with whom they need to collaborate. The FEMA project described above labeled the interaction between lawyers and decision makers in the context of disaster operations “Advice in Crisis.” This is a phrase that can be interpreted in different ways. The more direct mean­ing focuses on the challenge of developing and communicating legal advice in extreme situations. The second interpretation refers to the loss of professional legitimacy that can occur when lawyers tasked to support crisis leaders and teams are not ready to provide the legal services so urgently needed to inform and guide decision-making and problem-solving in disasters and other forms of crisis. Such lawyers—who may be very capable in steady-state transactional or litigation settings—find themselves facing a crisis within a crisis as they fail to rise to the occasion and meet the expectations of their leaders and teammates.

In the first part of the chapter, we describe a good practice framework and in-service training approach designed to help lawyers succeed in crisis lawyer­ing and avoid finding their advice (and their professional credibility) in cri­sis. However, while the US Legal Advice in Crisis project was well received by FEMA leadership and the Office of Chief Counsel and reportedly has had a lasting and positive impact,¹⁹ it remained an open question as to what extent these findings and frameworks were relevant and potentially applicable outside of the FEMA context.

In the second part of the chapter, we describe an exploration of the rel­evance and deployment of a localized version of the Advice in Crisis frame­work in a non-US setting. Initially, there was some reason for skepticism regarding how well the framework would travel. Sweden has a very different legal framework (with roots in the Napoleonic Code), as well as very different political-administrative structures, cultures, and legal educational traditions compared to the United States. However, despite these important differences, the similarities in challenges facing leaders and lawyers in crisis proved more fundamental and—with significant adaptation and localized elaboration—the Swedish Crisis Legal Advisors' framework has proved helpful in improving the crisis preparedness of government agencies at national and regional levels and of more than a hundred government lawyers and counting.

While it would be risky to assume that the challenges facing U.S. and Swedish government lawyers and the tool kit of interactive instructional de­signs and good practices assembled via the US and Swedish Legal Advice in Crisis projects can be directly exported to other highly developed (and other) countries, the results of these pilot efforts do strongly suggest that further ex­ploration, adaptation, and refinement of the AIC framework in other national or international organizational contexts is both warranted and promising.

Furthermore, the authors of this chapter also look forward with anticipa­tion to comparing the results of the FEMA Advice in Crisis project and the Swedish Crisis Legal Advisors project with the findings of the other chap­ters in this volume exploring legal advice in crisis in a wide variety of other government-, corporate-, and nonprofit-sector settings.

NOTES

1 The following section draws heavily upon three previous FEMA AIC publica­tions. Eric Stern et al., Advice in Crisis: Leaders, Lawyers and the Art of Disaster Management, in Homeland Security Handbook: Strategic Guidance for a Coordinated Approach to Effective Security and Emergency Management (David G. Kamien ed., 2012); Eric Stern et al., Advice in Crises: Towards Best Practices for Providing Legal Advice Under Disaster Conditions, FEMA Disaster Operations Legal Resource 53-56 (2011); Eric Stern et al., How to Collaborate with Lawyers in Crisis, Emergency Management (2012), www.emergencymgmt.com/ templates/gov_print_article?id = 142351215. With regard to the sections on the FEMA AIC project, we would like to acknowledge very important contributions to the AIC effort by Gregory Saathoff, MD, Mary Ellen Martinet, Patrick Walsh, Adrian Sevier, Rachael Bralliar, Elisabeth Renieris, and Dr. Christopher Holstege. Thanks also to numerous colleagues at the Swedish Defense University, the Swedish Civil Contingencies Agency, the Swedish Armed Forces, the Swedish National Board of Health, and several Stockholm Region Fire and Rescue Services, among others.

For a full list of FEMA AIC interviews, see Stern et al., Advice in Crises.

Arjen Boin, Paul ‘t Hart, Eric Stern & Bengt Sundelius, The Politics of Crisis Management: Public Leadership under Pressure (2nd ed. 2017). For a detailed exploration of the implications of these conditions for crisis lawyering, see Stern et al., Advice in Crisis.

Stern et al., How to Collaborate.

The description of the model is drawn from id. at 716-18.

For a more detailed treatment of the GAIN module, see id. at 718-26.

See, e.g., Beyond Groupthink (Paul ‘t Hart, Eric K. Stern & Bengt Sundelius eds., 1997); Cass R. Sunsteen & Reid Hastie, Wiser: Getting Beyond Groupthink to Make Groups Smarter (2014).

See Gary J. Edles, Assessing Who Is the Client in the Government Context, 10 Fall Admin. & Reg L. News 31 (2005); P.E. Salking, Beware: What You Say to Your (Government) Lawyer May Be Held against You—The Erosion of Government Attorney-Client Confidentiality, 35 Urb. L. 283 (2003).

See Stern et al., How to Collaborate, 726-32.

Cf. Ben W Heineman Jr., Lawyers as Leaders, 116 Yale L.J. 266-71 (2007). See infra, the discussion of GAIN above; cf. John R. Boyd, Destruction and Creation (1976).

Malcom Gladwell, Blink: The Power of Thinking Without Thinking (2005).

Ian I. Mistro & Abraham Silvers, Dirty Rotten Strategies: How We Trick Ourselves & Others Into Solving the Wrong Problems Precisely (2010).

Ralph L. Keeney, Value-Focused Thinking: A Path to Creative Decision Making (1992); Ian I. Mitroff & James R. Emshoff, On Strategic Assumption-Making: A Dialectical Approach to Policy and Planning, 4 Academy of Mgmt. Rev. 1-12 (1979).

Henry Mintzberg et al., The Structure of Unstructured Decision Processes, 21 Admin. Sci. Quarterly 246-75 (1976).

Stanley A. Renshon & Deborah W. Larson, Good Judgment in Foreign Policy: Theory & Application (2003).

Ward Farsnworth, The Legal Analyst: A Toolkit for Thikning About the Law (2007).

Eric Stern, Designing Crisis Management Training and Exercises for Strategic Leaders (2014), www.diva-portal.org.

See e.g., remarks by Tom Balint, FEMA Associate Chief Counsel for Resilience­Preparedness, at University of Albany, Albany Law, “Crisis Lawyering” Panel, October 2018.

14