Memorandum from Lisa Wood, Chair, ABA Standing Comm. on Legal Aid and Indigent Defendants, to Fin. Comm., Bd. of Dirs., Legal Servs. Corp. 2 (June 2, 2014) (reporting a “trend toward involuntary self-representation” and collecting statistics).
Jessica K. Steinberg, In Pursuit of Justice? Case Outcomes and the Delivery of Unbundled Legal Services, 18 Geo. J. on Poverty L. & Pol’y 453, 453 (2011); Expanding Access to Justice, Strengthening Federal Programs: First Annual Report of the White House Legal Aid Interagency Roundtable, White House Legal Aid Interagency Roundtable 9 (2016) [hereinafter Expanding Access to Justice], http://www.justice.gov/atj/page/file/913981/download [http://perma.cc/92BA -TYAE].
The rules change that made the Attorney for Short Calendar program lawful in Connecticut took effect in 2016, one month prior to the program’s launch. See infra note 44 and accompanying text.
This Note focuses on litigation. In transactional work, by contrast, limited-scope representation has long been uncontroversial. See Rochelle Klempner, Unbundled Legal Services in New York State Litigated Matters: A Proposal To Test the Efficacy Through Law School Clinics, 30 N.Y.U. Rev. L. & Soc. Change 653, 654 (2006) (“Outside the courtroom, unbundled legal services are commonplace, as a client may seek a lawyer’s advice before negotiating an agreement, or ask a lawyer to draft a document based upon an agreement reached without the lawyer’s assistance, or bring an agreement prepared by an opposing counsel to the lawyer for review. In each of these scenarios the lawyer performs a discrete legal task instead of handling the entire matter. The concept is far less established and common in the litigation context.”).
See id.; see also D. James Greiner et al., The Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future, 126 Harv. L. Rev. 901 (2013); Steinberg, supra note 5.
On occasion during the study period, after ASC, the Mortgage Foreclosure Litigation Clinic agreed to represent an ASC client on a full-scope basis.
The result is statistically significant (p < 0.001). However, this finding cannot be controlled for selection bias as robustly as the findings concerning motions decided on the day of the program. See infra Section IV.C.
I do not claim to be a disinterested commentator. As a Student Director in the Mortgage Foreclosure Litigation Clinic, I led the program’s implementation—organizing and attending meetings with judges and administrative personnel, drafting our internal documents and protocols, and conducting trainings for clinic students. This provided me with unique insights into the creation and operation of limited-scope representation programs. I was able to observe the program, including dozens of in-court arguments by pro se homeowners and by limited-scope advocates. And I was able to gather data and measure the program’s effectiveness from its inception.
Richard A. Corwin, Ethical Considerations: The Attorney-Client Relationship, 75 Tul. L. Rev. 1327, 1328 (2001) (“[I]t was not until 1878, when the ABA was founded in Saratoga Springs, New York, that any association attempted to speak with one voice for the profession.”). The Association of the Bar for the City of New York was founded just eight years earlier. About Us, New York City Bar, http://www.nycbar.org/about [http://perma.cc/RCK2-9JJJ].
Alfred S. Konefsky, The Legal Profession: From the Revolution to the Civil War, in 2 The Cambridge History of Law in America 68, 75 (Michael Grossberg & Christopher Tomlins eds., 2008) (“Through their active participation in the founding of the nation, lawyers had worked hard to institutionalize the insights of republican theory as well as to situate themselves as public representatives of it.”).
E.g., David R. Papke, The Legal Profession and Its Ethical Responsibilities: A History, in Ethics and the Legal Profession 29, 35 (Michael Davis & Frederick A. Elliston eds., 1986) (noting that influential lawyers like George Sharswood of Philadelphia, whose writings formed the basis for the American Bar Association’s first Canons, asserted “that professional morality was entirely compatible with arguing any and every case”).
See, e.g., Code of Prof’l Ethics Canon 15 (Am. Bar Ass’n, Proposed Official Draft 1908) (“The lawyer owes ‘entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability,’ to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied.”).
Id. (“In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense.”).
Model Rules of Prof’l Conduct pmbl. ¶ 2 (Am. Bar Ass’n 2016). Some have recently objected to the word “zealous,” emphasizing that lawyers’ obligations to their clients are circumscribed by other ethical rules and broader moral considerations. See, e.g., Allen K. Harris, The Professional Crises—The “Z” Words and Other Rambo Tactics: The Conference of Chief Justices’ Solution, 53 S.C. L. Rev. 549, 568-74 (2002). Nevertheless, these objections do not alter the modern thrust of legal ethics, as evinced by the opening words of the Model Rules: “A lawyer, as a member of the legal profession, is a representative of clients . . . .” Model Rules of Prof’l Conduct pmbl. ¶ 1 (Am. Bar Ass’n 2016).
Still, even before introducing the idea of limited-scope representation, this “traditional” model is complicated in modern times. Theodore Schneyer identifies five categories of people to whom a lawyer owes client or client-like duties: (1) prospective clients, (2) quasi-clients (e.g., his client’s ward), (3) nonclients with confidential relationships (e.g., members of a client trade organization that furnish information to that organization), (4) secondary clients (new clients whose interests are subordinated to old ones), and (5) primary clients. See Theodore J. Schneyer, Searching for New “Particles” in the Law of Lawyering: Recent Developments in the Attribution of “Clienthood,” 1 J. Inst. Study Legal Ethics 79, 79 (1996).
See Occupational Employment and Wages, May 2016, Bureau Lab. Stat. (Mar. 31, 2017), http://http://www.bls.gov/oes/current/oes231011.htm [http://perma.cc/6X7N-SKM7] (indicating that the metropolitan area containing New York City has more than twice the national average concentration of lawyers: 8.94 per thousand jobs).
Expanding Access to Justice, supra note 5, at 9 (citing FY 2017 Budget Request, Legal Servs. Corp., http://www.lsc.gov/media-center/publications/fy-2017-budget-request [http://perma.cc/G4VF-Z28B]).
Paul Kiel, So Sue Them: What We’ve Learned About the Debt Collection Lawsuit Machine, ProPublica (May 5, 2016, 7:57 AM), http://www.propublica.org/article/so-sue-them-what -weve-learned-about-the-debt-collection-lawsuit-machine [http://perma.cc/HKY5 -NZUN].
Expanding Access to Justice, supra note 5, at 9 (citing FY 2017 Budget Request, Legal Servs. Corp., http://www.lsc.gov/media-center/publications/fy-2017-budget-request [http://perma.cc/G4VF-Z28B]).
See Gideon v. Wainwright, 372 U.S. 335 (1963). Though the right to criminal defense counsel is long-established, criminal public defenders face crises of their own. See generally John D. King, Symposium, Lamentations, Celebrations, and Innovations: Gideon at 50, 70 Wash. & Lee L. Rev. 835, 835 (2013) (“No observer of the criminal justice system today would argue that the right to appointed counsel works well. As the country’s criminal justice system has exploded in size and scope in the half century since Gideon, the systems of indigent criminal defense have failed entirely to keep pace.”).
See, e.g., George Schatzki, The Survival of Legal Services for the Poor in Connecticut, 70 Conn. B.J. 313, 313 (1996) (“Chief Justice of the Connecticut Supreme Court Ellen Ash Peters . . . began by pointing out that the rationale of [Gideon] made as much sense in the civil arena as it did in Gideon’s own context, a criminal case. That reasoning was self-evident: without recourse to competent legal assistance, legal rights are an empty shell. Legal assistance is essential to alleviate human misery on a micro-scale; to protect individuals from being evicted unlawfully from their homes, to assure that a marriage dissolution is accomplished with equity and concern for human needs, or to defend individuals’ rights from overreaching by the powerful or from indifference of administrators.”).
For instance, New York City is implementing a program to provide all low-income New York City tenants with free legal representation in eviction proceedings by 2022. See N.Y.C., N.Y., Administrative Code §§ 26-1301 to -1305 (2017); Mayor de Blasio Signs Legislation To Provide Low-Income New Yorkers with Access to Counsel for Wrongful Evictions, City of New York (Aug. 11, 2017), http://www1.nyc.gov/office-of-the-mayor/news/547-17/mayor-de-blasio-signs -legislation-provide-low-income-new-yorkers-access-counsel-for [http://perma.cc/TF7N -C2GS] (“[Mayor de Blasio said,] ‘New York City will be the first city in [the] country to ensure anyone facing an eviction case can access legal assistance thanks to this new law. New Yorkers should not lose their homes because they cannot afford a lawyer and stopping wrongful evictions from happening makes both ethical and economic sense.’”).
See, e.g., First Annual Report, Access to Justice Comm’n, Conn. Judicial Branch (Oct. 12, 2012), http://www.jud.ct.gov/committees/access/ATJ_AnnualReport.pdf [http://perma.cc/S4L5-5XXR] (providing a list of recommendations to the Judicial Branch). In its second recommendation, the Commission encouraged limited-scope representation as one response to access to justice concerns: “The Judicial Branch should continue to work with bar groups on limited scope representation proposals, which would both make lawyers more affordable to litigants currently unable to afford any legal representation and increase the number of lawyers volunteering for pro bono service in key aspects of cases.” Id. at 7.
Sometimes, limited-scope representation can occupy a gray area in the middle, as when an attorney ghostwrites but does not sign a client’s pleading or motion. This Note is primarily concerned with limited-scope advocacy in which the attorney’s identity is known to all parties. As other observers have noted, ghostwriting is an ethically contentious form of limited-scope representation. See, e.g., Fern Fisher-Brandveen & Rochelle Klempner, Unbundled Legal Services: Untying the Bundle in New York State, 29 Fordham Urb. L.J. 1107, 1116-17, 1117 n.73 (2002) (describing the practice of ghostwriting and collecting cases where judges have chastised lawyers for ghostwriting); Jona Goldschmidt, In Defense of Ghostwriting, 29 Fordham Urb. L.J. 1145 (2002) (arguing that ghostwriting should be permitted in certain circumstances); John L. Kane, Jr., Guest Editorial, Debunking Unbundling, 29 Colo. Law 15, 15-16 (Feb. 2000) (arguing against ghostwriting); Salman Bhojani, Comment, Attorney Ghostwriting for Pro Se Litigants—A Practical and Bright-Line Solution To Resolve the Split of Authority Among Federal Circuits and State Bar Associations, 65 SMU L. Rev. 653, 679 (2012) (recommending that courts “require[e] ghostwriting attorneys and pro se litigants to disclose that the legal document was ‘prepared with the assistance of counsel,’” without disclosing the attorney’s identity); Blake George Tanase, Note, Give Ghosts a Chance, 48 Ga. L. Rev. 661 (2014) (same).
See Model Rules of Prof’l Conduct r. 1.2(c) (Am. Bar Ass’n 2002) (permitting limited-scope representation, when reasonable, with a client’s informed consent).
Molly M. Jennings & D. James Greiner, The Evolution of Unbundling in Litigation Matters: Three Case Studies and a Literature Review, 89 Denv. U. L. Rev. 825, 826 (2012). Jennings & Greiner examine precursors of limited-scope representation in three states—Colorado, Massachusetts, and Alabama—through conversations and interviews with members of the bar involved in each state’s “unbundling” movement:
[I]n all three states, unbundled representation had been actively practiced, in the context of litigation matters, by legal aid providers (joined in some cases by pro bono attorneys) years before a recognizable movement toward mainstreaming of unbundling began. In some instances, these legal assistance programs were highly visible, in that they included providing representation to eligible clients in the hallways outside of courtrooms, in mediation sessions, and even in court colloquies and motion arguments.
Id. Nevertheless, all agreed that “the lessons drawn from [such] efforts were limited” because of a disconnect between legal services and pro bono programs on the one hand and private attorneys, judges, and leaders of the bar on the other. Id. at 827. “[T]he previous experiences of those in legal services and pro bono programs were not considered sufficient to persuade.” Id.
Jennings & Greiner also note that in all three states, an important step in the development of limited-scope representation was judges’ willingness to cede control over whether an attorney could withdraw. Allowing limited-scope attorneys to withdraw as of right was an essential step in all three states. Id. So too in Connecticut.
See, e.g., Jennings & Greiner, supra note 36, at 826 (noting that in the three studied states, limited-scope advice was offered for “years before a recognizable movement toward mainstreaming of unbundling began”).
It’s reasonable that additional duties should attach to the attorney who represents a client on court papers or in courtroom appearances. For instance, Connecticut’s rule that such representation be limited purposively, not financially or temporally, protects all parties—the client, the opposing party, and the court—by preventing a limited-scope representation from ending unexpectedly (e.g., through the exhaustion of a fee).
See Brenda Star Adams, Note, “Unbundled Legal Services”: A Solution to the Problems Caused by Pro Se Litigation in Massachusetts’s Civil Courts, 40 New Eng. L. Rev. 303, 304-05 (2005) (“Arizona and Minnesota have set up self-service centers in several of their courthouses to deal specifically with pro se litigants. These centers provide unbundled legal services catered to the states’ poor, uneducated, and disadvantaged self-represented litigants.” (citations omitted)).
Here is a typical announcement:
[A]ny of you who are self-represented . . . Connecticut Fair Housing is here as well as the Yale Law Clinic. There are students and the attorneys here. They may be willing to take your case . . . . [I]t is a volunteer program on their end. What I’m going to ask that you do when I call your case, if you would like to take advantage of the program, please let me know.
Foreclosure Calendar Call, Judicial District of New Haven (Conn. Sup. Feb. 29, 2016) (announcement of clerk) (transcript on file with MFL).
See Volunteer Lawyer for the Day Program–Housing, N.Y. State Unified Ct. Sys. (Oct. 13, 2013), http://www.nycourts.gov/courts/nyc/housing/vlfd_housing.shtml [http://perma.cc/XB4A-BJNF]; Lawyer for the Day Programs in Housing Court, Mass. Jud. Branch (2017), http://www.mass.gov/courts/programs/legal-assistance/lfd-hc.html [http://perma.cc/MC4L-HFWX]; see also, e.g., Alicia M. Farley, An Important Piece of the Bundle: How Limited Appearances Can Provide an Ethically Sound Way To Increase Access to Justice for Pro Se Litigants, 20 Geo. J. Legal Ethics 563, 582-83 (2007) (describing the use of limited-scope representation in Washington, D.C. landlord-tenant disputes); Greiner et al., supra note 9, at 913 (“Despite the prevalence of such programs, to our knowledge there has been no rigorous evaluation of the effect limited assistance has on the clients or the court systems those programs are intended to serve.”).
See, e.g., Kane, supra note 34, at 16 (“Proponents claim that unbundling legal services is a cost-reducing method of providing access to justice. In this context, however, ‘access’ to the justice system is more accurately described as ‘insertion’ into it. It is ludicrous to suggest that in the present system, a layperson armed with a few discrete sticks from the advocate’s bundle can emerge from the trial thicket unscathed or that others will not be put to unnecessary expense.” (citation omitted)).
It is true that limited-scope representation may set litigation in motion, slowing down cases regardless of the merits. But such a delay may be necessary to vindicate the legal rights of the poor. After all, “uncontested” does not mean “legally sound.” If the pro se party in these cases has a valid claim or defense, a delay could provide the time to mount a legal defense that vindicates a legal right. Further, even in a case where the pro se party will not win on the merits, a delay may harm private litigants but serve the public interest. The spillover effects from having both parties represented reach beyond the merits of the case to the ways in which symmetrical negotiations can facilitate optimal outcomes. For example, tactics that admittedly delay the proceedings might incentivize parties to bargain and reach a mutually agreeable result, like modifying or reinstating a mortgage. This is consistent with Connecticut’s expressed public policy, which favors mutually agreeable resolutions that avert foreclosure. See Conn. Gen. Stat. § 49-31(k)(7) (2016) (“‘Objectives of the mediation program’ means[, inter alia,] a determination as to whether or not the parties can reach an agreement that will avoid foreclosure by means that may include consideration of any loss mitigation options available through the mortgagee . . . .” (numbering omitted)).
Some have written about systems to address ethical challenges unique to limited-scope representation. For instance, Professor Struffolino described one jurisdiction’s approach to regulating limited-scope representation. Attorneys who completed field-specific training were placed on an online list of approved limited-scope advocates, increasing their visibility with potential clients. Only lawyers on the list had permission to unilaterally withdraw on completion of a limited-scope appearance; others had to request court authorization. Michele N. Struffolino, Limited Scope Not Limited Competence: Skills Needed To Provide Increased Access to Justice Through Unbundled Legal Services in Domestic-Relations Matters, 56 S. Tex. L. Rev. 159, 201 (2014).
Others have raised more fundamental ethical objections. See, e.g., Kane, supra note 34, at 16 (arguing that limited-scope representation is a “negation of the advocates’ essential role”); Michele N. Struffolino, Taking Limited Representation to the Limits: The Efficacy of Using Unbundled Legal Services in Domestic-Relations Matters Involving Litigation, 2 St. Mary’s J. Legal Malpractice & Ethics 166, 166 (2012) (“[T]he use of unbundled services in domestic-relations matters has caused difficulties for litigants, attorneys, and the courts. For these domestic-relations cases in particular, full service representation is crucial. To provide full satisfaction for their clients and to fulfill their ethical duty, domestic-relations attorneys must provide complete representation.”).
It is true that limited-scope representation is inconsistent with one traditionalist view of the lawyer’s role: that “[i]n the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense.” Code of Prof’l Ethics Canon 15 (Am. Bar Ass’n 1908). But for some people, like the clients of ASC, limited-scope representation is the only representation available. It is unrealistic to argue that limited-scope representation would deprive them of a “lawyer [who will] assert every such remedy or defense” when no such lawyer is forthcoming. Id.
See generally Jennings & Greiner, supra note 36, at 849-50 (providing an excellent bibliography of relevant articles).
See Steinberg, supra note 5, at 456 (“[T]he threshold question of the efficacy of unbundled legal aid has not been the focus of significant attention by scholars and practitioners. Very little is known about how unbundled aid affects clients and cases, and whether it advances justice—however one might define it—for low-income litigants. Despite rapid proliferation of unbundled legal services programs in every state across the nation, unbundling has rarely been subject to empirical analysis to test whether it is effective in producing outcomes that are more just or favorable than its recipients could otherwise have achieved on their own. To be sure, unbundling permits legal aid providers to provide assistance to thousands of additional low-income individuals. Yet, is the mere delivery of aid a success in and of itself? Even delivery of simple advice or brief services requires an enormous output of scarce attorney resources. Before states and the federal government standardize unbundled aid as the primary mechanism for meeting the vast legal needs of the indigent, it is critical to carefully assess how litigants armed with just ‘a little lawyering’ fare in court.”).
Jennings & Greiner, supra note 36, at 827-28 (“That is, no one knew whether the movement to legitimize unbundling in litigation matters (which has consisted primarily of making and advertising changes to ethical rules, judicial guidelines, and rules of civil procedure) had any serious effect on the way in which the private bar conducted business, on the number or percentage of litigants who self-represented in court hearings or during other phases of litigation, or on any discernible aspect of access to justice. Although some with whom we spoke cited [anecdotes], and some cited the value of easily-limited representation as a recruitment tool for pro bono groups, no one could point to (nor did our independent research unearth) a credible study or evaluation purporting to assess the effect of a statewide movement or of an individual program that offered unbundled representation.”).
Id. at 906. In fairness to Greiner, Pattanayak, and Hennessy, pursuing this second question using their randomized study design would likely have been unethical. As they explain: “[W]hen providing at least some (perhaps minimal) form of assistance costs little, and there is only a small chance that the assistance could have harmful side effects . . . there may be ethical concerns in studying the  question” that compares limited-scope representation to no representation. Id.
The same holds true for the ASC program. Before the program was launched, the organizers briefly considered such a randomized approach but dismissed it as unethical. Fortunately, features unique to ASC provide a convincingly close estimate of true randomization: a natural experiment in which those in the control group differ from those in the treatment group based only on which day the relevant motion happened to appear on the calendar. This Note’s experiment leverages that unique empirical baseline to test whether limited-scope representation makes a meaningful difference vis-à-vis no representation at all.
This Note also avoids a design limitation of the Greiner et al. study. The authors appear to categorize some litigants as having received limited-scope assistance, despite not having received any aid. Roughly 30% of the study participants never “attended an instructional clinic.” Id. Some of these participants were referred by judges; others approached one of the three practitioners involved in the study (or a paralegal) in the courthouse. Practitioners only “assisted an undetermined number of these litigants with filling out answer and discovery forms.” Id. Thus, an undetermined number of this 30% of study participants received no limited-scope assistance at all, but the authors nevertheless categorize them in the limited-scope assistance group.
Id. Of the three clinics each week, one was located at the courthouse and two were not. For the courthouse clinics, tenants were required to sign documents indicating that they were not clients. For the other two clinics each week, tenants were required to sign a limited-scope retainer. It does not appear that this resulted in any substantive difference in the services offered. See id.
Specifically, recipients of unbundled legal services fared better than unrepresented tenants at retaining possession, id. at 483 tbl.1, days until move out if not retaining possession, id. at 484 tbl.2, and tenant’s payment to landlord, if any, id. at 486 tbl.4. But recipients of unbundled legal services were more likely than unrepresented tenants to have agreed to pay the landlord. Id. at 485 tbl.3.
Specifically, recipients of traditional representation retained possession far more often, id. at 483 tbl.1, achieved more days until move out if not retaining possession, id. tbl.2, and never agreed to pay the landlord money, id. tbl.3.
Steinberg acknowledged that “the clinic screened cases to ensure they were pedagogically appropriate for students to manage.” Id. at 479; see also id. at 479 n.119 (“[I]f the Clinic determine[d] a case [wa]s fully lacking in merit during the course of representation, the client would be counseled accordingly.”).
On the one hand, seeking out a housing clinic might correlate with initiative; this might suggest that those who attend such a clinic would do better than others. On the other hand, seeking out a clinic might correlate with being a repeat player, such as someone who has already undergone a prior eviction; this might suggest that those who attend such a clinic would do worse than others. In any event, the point is that Professor Steinberg’s groups were not randomized; there are a host of confounding variables that could distinguish those who attended the clinics and those who did not.
Clients are asked to complete anonymous exit surveys after being represented by ASC, see infra Section IV.E, and in response to the question, “How did you hear about [ASC]?”, nearly every client chose “announcement in court.” Since clients were not aware of ASC in advance, they could not have strategically timed their motions to try to get them to calendar on an ASC day. Occasionally, ASC clients who needed to return were advised by ASC volunteers on how to strategically time their motions so that their next appearance would be on an ASC day, but this does not impact this study because such people had already come to ASC once and so would be classified as ASC clients regardless. See supra note 59 and accompanying text.
See Evaluation of the Van Nuys Legal Self-Help Center: Final Report, UCLA L. Sch. Empirical Research Grp. 1 (Aug. 30, 2001), http://www.courts.ca.gov/partners/documents/Final_Evaluation_Van_Nuys_SHC2001.doc [http://perma.cc/ALV8-9MRJ].
In addition to these quantitative studies, others have taken a qualitative approach. For example, one study examines a pilot attorney for the day program in New York City Housing Court. It concludes that the program was effective based on interviews, focus groups, and a review of the case files of the 50 clients involved, but it does not provide any control group. Fern A. Fisher et al., Volunteer Lawyer for a Day Project Report: A Test of Unbundled Legal Services in the New York City Housing Court, Off. Admin. Judge Civ. Ct. City N.Y. et al. 1-2 (Feb. 2008), http://www.courts.state.ny.us/courts/nyc/housing/pdfs/vlfdreport_0208.pdf [http://perma.cc/YDH8-MBUT].
See generally 1 Denis R. Caron & Geoffrey K. Milne, Connecticut Foreclosures: An Attorney’s Manual of Practice and Procedure (5th ed. 2011) (discussing Connecticut foreclosure law and practices).
Successful mediation sessions generally result in the lender reviewing the homeowner for some alternative to foreclosure, such as a loan modification. Naturally, a modification benefits the homeowner. Less intuitively, it may benefit the lender as well. Often, when the homeowner has a steady stream of income, a lender is better off agreeing to a modification with lower monthly payments than foreclosing on a home and selling it at a steep discount. Typical modification formulae take the lender’s interest into account and only permit modifications when the modification is expected to be at least as good for the lender as foreclosure would be.
For example, the federal Home Affordable Modification Program (HAMP) applied a net present value (NPV) test. See Making Home Affordable, Net Present Value (NPV) Calculator, U.S. Dep’t Treasury & U.S. Dep’t Housing & Urb. Dev., http://www .makinghomeaffordable.gov/get-answers/pages/get-answers-tools-NPV.aspx [http://perma.cc/53TC-BXPZ] (“For the Home Affordable Modification Program . . . mortgage companies/lenders compare the NPV of the mortgage with a HAMP modification to that of the mortgage left ‘as is.’ If the NPV with the modification is higher than, or within a specified range of, the NPV of the mortgage without the HAMP modification, HAMP servicers are required to provide the HAMP modification for eligible mortgages (subject to investor restrictions).”); see also 12 U.S.C. § 5219a (2012) (requiring the use of NPV and authorizing the creation of the web-based calculator and the promulgation of the methodological documents cited supra); Making Home Affordable, Home Affordable Modification Program: Base Net Present Value (NPV) Model v7.0 Model Documentation, U.S. Dep’t Treasury & U.S. Dep’t Housing & Urb. Dev., http://www.hmpadmin.com/portal/programs/docs/hamp_servicer/BaseNPVModelDocumentationv7.pdf [http://perma.cc/PK5V-VPTH] (providing a detailed explanation for the model used).
HAMP was launched alongside the Troubled Assets Relief Program in 2009, when many homeowners’ payments had become unaffordable due to the sub-prime lending crisis. HAMP was allowed to sunset at the end of 2016. Stacy Cowley, Prevention Returns to the Unknown, N.Y. Times (Jan. 25, 2017), http://www.nytimes.com/2017/01/25/business/dealbook /foreclosure-prevention-mortgage-lending.html [http://perma.cc/X5LS-73CJ]. In 2017, it was replaced with the Flex Modification Program. See Fact Sheet: Fannie Mae Flex Modification Fannie Mae (Dec. 14, 2016), http://www.fanniemae.com/content/fact_sheet/fanniemae -flex-modification-fact-sheet.pdf [http://perma.cc/PP4Z-D97B].
Office of the Chief Court Adm’r., Foreclosure Mediation Program: Report to the Banking Committee of the General Assembly, Conn. Jud. Branch 47 & tbl.35 (2017) [hereinafter FMP Report], http://www.jud.ct.gov/statistics/fmp/FMP_Report_bank_2017.pdf [http://perma.cc/4Q9F-JS8V].
FMP Report, supra note 85, at 46 tbl.34 (indicating that only 61% of cases completed mediation and that the remainder were terminated by the judge or the mediator).
Conn. Gen. Stat. § 49-31l(c)(4) (2017) (Petition for Reinclusion); see also Conn. Gen. Stat. § 49-31l(b)(3) (2017) (adopting a similar “good cause” standard for Petitions for Inclusion).
The case is stayed for eight months, as long as the case is in the FMP. Conn. Gen. Stat. § 49-31l(c)(6)(B) (2017). If mediation is terminated, the homeowner has fifteen days from that date to file an answer and special defenses. Id. Typically, defendants do not file an answer, so the court enters a default judgment against them. If the defendant does file an answer, the court decides liability on a motion for summary judgment. Trial is extremely rare. In reviewing more than twelve hundred court interactions on the property short calendar, I identified no foreclosure case that went to trial.
The court has discretion to set either a sale date or a law day. Conn. Gen. Stat. § 49-24 (2017). In my experience, a sale is the norm when a property has equity—i.e., when the value of the property is greater than the total amount owed by the homeowner. A sale date is required when there is a federal tax lien. 28 U.S.C. § 2410(c) (2012).
For simplicity, I refer to a singular law day, but there are often multiple law days. When referring to the law day, I always mean the first law day, which is the homeowner’s law day. This is the homeowner’s last chance to retain the property by paying off the entire mortgage. Subsequent law days essentially offer other commercial entities with an interest in the property (e.g., a bank that holds a second mortgage) the opportunity to purchase the property by paying off all senior claims (e.g., the first mortgage).
That said, ASC volunteers have, on occasion, offered such a compelling case that a judge refers the case to mediation and marks “off” indefinitely the motion for judgment. See infra Section IV.A.2.
Pro se homeowners are able to file these motions, and frequently do. The judicial branch provides a pre-printed form on which homeowners may explain why they need additional time. A free online guide by the Connecticut Fair Housing Center provides advice on the form, see Representing Yourself in Foreclosure: A Guide for Connecticut Homeowners, Conn. Fair Housing Ctr. 16 (8th ed. 2013), http://www.ctfairhousing.org/wp-content/uploads/CFHC -ForeclosMan-Repr8-R1.pdf [http://perma.cc/428D-JSAW], and the clerk’s office helps explain the procedural requirements. In New Haven, the Motion to Extend may be filed as late as the law day itself. The New Haven court agrees to hear these motions as “write-ons,” adding them to the short calendar and hearing them that same day. The accessibility of the pre-printed forms, the willingness of clerks to explain the meaning of the law day, and the New Haven court system’s practice of permitting them to be argued as write-ons are all essential to ASC, since ASC usually does not intervene until the parties have already filed these motions and have appeared in court to argue them.
Title to the property vests the day after the last law day if no party has exercised the equity of redemption, so there is no delay for an appeal period after the law day. Therefore, the judicial order that constitutes an appealable final judgment is the order entering the judgment of strict foreclosure, or the last ruling on a Motion to Extend, whichever is later. This means that if a judge denies a Motion to Extend, she must nevertheless extend the law day by at least twenty days to allow the appeal period to run so that this order can be appealed before title passes. See First Conn. Capital, L.L.C. v. Homes of Westport, L.L.C., 966 A.2d 239, 249 (Conn. App. Ct. 2009) (refusing to allow approval of a sale during an appellate stay, even one created by defendant’s own motion, noting that “[a]s presently enacted . . . our rules of practice permitted the perpetual motion machine employed by the defendant in the present case”). To curb abuses, after the judge denies a third Motion to Extend, there are limitations on the requirement that the judge extend the law day further, though these provisions are rarely necessary. See Connecticut Practice Book § 61-11(g) (Comm’n on Official Legal Publ’ns 2017) (providing that, except when the motion is uncontested or the defendant certifies under oath that she has good cause, “no automatic stay shall arise upon the court’s denial” of a Motion to Extend, if it has already denied two such motions by the defendant).
Though it forms the basis for this mandatory twenty-day extension, the statement that law days are final is subject to exceptions. See, e.g., New Milford Sav. Bank v. Jajer, 691 A.2d 598, 603 (Conn. App. Ct. 1997) (permitting the retroactive modification of a foreclosure judgment to correct a clerical error by the plaintiff). Title may be retroactively restored when the court lacked personal or subject matter jurisdiction. This occurred in the one ASC case during the study period that MFL later took on in a full-scope capacity. See Webster Bank, N.A. v. Grella, No. NNH-CV16-6059927-S (Conn. Super. Ct. Apr. 17, 2017), http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NNHCV166059927S [http://perma.cc/FL2S-N93D] (granting motion to open and vacate judgment, without written opinion, after evidentiary hearing regarding whether defendant had been served). Title may also be restored when equity so requires, as when a plaintiff failed to provide the defendant with a court-ordered notice but claimed it had done so, see Wells Fargo Bank, N.A. v. Melahn, 85 A.3d 1, 4 (Conn. App. Ct. 2014), or when the foreclosure judgment was premised on a default judgment entered after a clerk’s error allegedly caused an appearance form not to be docketed. See Fla. Capital Bank Mortg. v. Nunley, No. NNH-CV16-6059999-S (Conn. Super. Ct. Oct. 27, 2016), http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NNHCV166059999S [http://perma.cc/T6EQ-TE6C]. In the latter case, the judge restored title after a law student’s argument at ASC. See generally Bank of N. Y. Mellon v. Caruso, No. NNH-CV12-6031454-S (Conn. Super. Ct. Aug. 21, 2015), http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NNHCV126031454S [http://perma.cc/3KLC -RQ95] (discussing legal requirements for restoration of title after law day).
There are certainly exceptions. Relative to other areas of law, motions in foreclosure cases often turn on the facts and on considerations of equity, so prepared and articulate homeowners can persuade a judge. Indeed, the relative accessibility of foreclosure law is one reason why a limited-scope representation program with student participants is effective in this area. See infra Part V.
For example, ASC volunteers are respectful of opposing counsel’s time. Most foreclosure matters are handled by repeat players. These attorneys will be at the courthouse for several hours and are not inconvenienced by arguing cases out of order. But some cases involve opposing counsel with only a single matter on that day’s calendar. ASC handles these cases first.
The only situation that comes to mind in which ASC volunteers would decline to provide any advice at all is the vanishingly rare situation in which a would-be client has already retained an attorney, the attorney did not show up in court, and that fact escaped the clerk’s notice so the person was nevertheless asked whether he wished to speak with the ASC volunteers.
Therefore, although the ASC volunteers take the position that no attorney-client relationship was formed, the provision of advice may generally be conceptualized as “unbundled” legal services at least as individualized and detailed as what was provided in the Steinberg study and the Greiner et al. study. See supra Part I; see also Greiner et al., supra note 9, at 917-18; Steinberg, supra note 5, at 480.
Before launching, ASC emphasized to the regularly sitting foreclosure judges that a decision not to represent someone could be made for myriad reasons and should not be taken as an indication that the case lacks merit.
The procedure described above was altered in a few ways on days when Connecticut Fair Housing Center (CFHC) attorneys, rather than MFL students and faculty, were present (or on days when MFL and CFHC were both present). The process was slightly more efficient for CFHC, since its attorneys can make decisions about representation and litigation strategy without needing to consult with a supervisor. A second difference was that CFHC attorneys exhibited a tendency to stretch the limited-scope representation format, keeping their limited-scope representations open for a longer period of time. For example, CFHC attorneys occasionally filed additional documents after the ASC day, or returned on a future day to argue a related motion; MFL volunteers sometimes did this, as well, but it was rare. This tendency may illustrate the extent to which the traditional full-scope, attorney-client model is embedded in our legal culture. It may also lead to better outcomes for those who CFHC represents, though the sample size is too small to draw any conclusions: excluding work by an attorney who was both a CFHC and MFL employee, CFHC was involved in only three of the thirty-one ASC days during the study period.
In addition to reviewing transcripts for control group days, I reviewed transcripts for a few ASC days to confirm the accuracy of the ASC program notes used to group homeowners into Client, Advice, Declined, and No Show.
To be more precise, I considered a case to be a “win” for the homeowner if the case reached resolution without the homeowner’s equity of redemption being extinguished. The equity of redemption is extinguished when a law day passes, or when a sale is approved by the court.
Time in lawful possession was measured as follows: for a Motion for Judgment or a Motion to Reset, the number of days from the judge’s order until the law day or sale date; for a Motion to Extend, the number of days from the old law day or sale date to the new law day or sale date; and for a Motion to Stay Ejectment, the number of days from the judge’s order until the stay expired.
This is a box-and-whisker plot. The “box” encloses the middle fifty percent, from the lower quartile to the upper quartile. The horizontal line through the middle of the box is the median. The small x is the average. The “whiskers” represent the range, with outliers not depicted.
When comparing raw numbers, as here, tests for statistical significance are based on a single-factor analysis of variance. When comparing proportions, tests for statistical significance are based on a z-test.
This result remains statistically significant, even after robust controls for selection bias. See infra Section IV.C.
In that case, the plaintiff had erroneously requested strict foreclosure (a law day instead of a sale date), and the judge in denying the motion noted that the “[p]laintiff may file the appropriate Motion for Foreclosure by Sale.” Order, JPMorgan Chase Bank, Nat’l Ass’n v. Hedvig, No. NNH-CV-15-6055626-S, Docket No. 107.10, http://civilinquiry.jud.ct.gov /DocumentInquiry/DocumentInquiry.aspx?DocumentNo=9520573 [http://perma.cc/7MDL-2MZA].
This calculation excludes temporary deferrals, in which Motions for Judgment were merely marked “over” to a later week. This happened for a variety of reasons—e.g., the plaintiff’s attorney was waiting for paperwork or had a scheduling conflict—and was not generally attributable to advocacy. Clients were not significantly more likely to receive these temporary deferrals than Non-Clients.
This category includes one partial victory—an interaction in which the court limited relief to only one mediation session.
Intriguingly, during the study period, the court never once denied a mediation-related request during an interaction with an ASC advocate, though the court failed to rule in a few such cases. Some ASC volunteers choose to strategically “withdraw” requests for mediation in appropriate circumstances. This accounts for some of the decisions that were never ruled on. Since the study period ended, the court has denied some of ASC’s mediation-related motions.
This excludes nine motions that were never ruled on and four that were not ruled on from the bench.
In a gloomier light, the result is troubling. It shows, to return to the epigraph, that “the mere truth won’t do . . . . You must have a lawyer.” Dickens, supra note 1, at 659. When even a limited-scope attorney makes a significant difference in the outcome of a motion, it is troubling that many indigent people lack counsel.
As discussed in the Appendix, under my definition a homeowner “loses” when the equity of redemption is extinguished and “wins” when the case terminates without it being extinguished. For these calculations, two cases are omitted from the sample because a clerical error (e.g., listing the wrong year in the law day) makes it unclear whether title validly passed to the plaintiff.
This finding can be controlled for selection bias, albeit not as robustly as the findings in Section IV.A. See infra Section IV.C. An additional caveat worth mentioning is that ASC clients have significantly more cases still pending (26%, as compared to 14% for all other cases; p<0.01). Perhaps ASC’s win rate will go down as some of these cases reach a final disposition. Still, based on the data available, ASC clients win significantly more often.
One might wonder how this finding can be squared with ASC volunteers’ frequent reliance on the FMP to improve client outcomes. The answer is that ASC volunteers seek to place their clients in mediation when they have a realistic shot at retaining their home. However, most FMP participants are not placed into the program in this way. As discussed in Section III.B, residential homeowners can unilaterally request mediation, so long as they do so within fifteen days of the return date of the lawsuit against them, regardless of whether mediation has
a chance at success. Conn. Gen. Stat § 49-31l(b)(2). Therefore, while some homeowners on the margin (including many ASC clients) do benefit from the FMP, many others request mediation without any realistic chance at success.
On the three ASC days when there were no Yale student volunteers—when CFHC attorneys were the only volunteers present—homeowners were not provided with exit surveys.
There was one troubling comment, which leaves some ambiguity about whether this homeowner fully understood the limited-scope nature of the representation: “This volunteer attorney help[ed] me so much, without them I don’t know what to do they were such a big help to me. Its seem God send them to me. I hope they can continue help me to save my home. Thanks so much.” (emphasis added).
See, e.g., Farley, supra note 46, at 569 (citing reports that clients believe that in-court representation is what they need most).
Citibank v. Quinones, Superior Court Case Look-up, St. Conn. Jud. Branch (May 31, 2017), http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=NNHCV136036657S [http://perma.cc/CF36-8X94].
See Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970) (“The fundamental requisite of due process of law is the opportunity to be heard . . . . The opportunity to be heard must be tailored to the capacities and circumstances of those who are to be heard.”).
This is due, in part, to the fact that such laws are interpreted inconsistently with their purposes. See Nathan Nash, Solange Hilfinger-Pardo & James Mandilk, Comment, The Tarnished Golden Rule: The Corrosive Effect of Federal Prevailing-Party Standards on State Reciprocal-Fee Statutes, 127 Yale L.J 1068, 1083-84 (2018).
See Greiner et al., supra note 9, at 918; Steinberg, supra note 5; Evaluation of the Van Nuys Legal Self-Help Center: Final Report, supra note 76, at 1.
My intuition that certain judges are more susceptible to certain types of arguments is in slight tension with the finding, see supra Section IV.D, that the identity of the judge does not significantly influence the outcome of the motion. But the two can be reconciled. For example, it may be that judges’ rulings are comparable on average, while nevertheless varying in certain categories of cases (e.g., the first judge is more likely to be lenient for a family with children and the second is more likely to be lenient for an elderly homeowner, but these differences average out).
E.g., Conn. Gen. Stat. § 49-31(k)(7) (2018) (“‘Objectives of the mediation program’ means[, inter alia,] a determination as to whether or not the parties can reach an agreement that will avoid foreclosure by means that may include consideration of any loss mitigation options available through the mortgagee.” (numbering omitted)); see also supra note 84 (describing federal modification programs).
There are thirteen judicial districts, organized geographically. See About Connecticut Courts: Organization of the Courts, St. Conn., Judicial Branch, http://www.jud.ct.gov/ystday /orgcourt.html [http://perma.cc/XZ7Q-WWLR].
The short calendar also includes a handful of exotic property cases, such as suits for partition of a parcel, though I do not include such cases in my set.
Appearing requires filing a one-page form providing contact information for the court. In many cases, homeowners do not file appearances. A defendant must file an appearance before filing any other document, so a failure to file an appearance indicates a lack of participation in the case.
In a process that frequently trips up pro se homeowners, the movant must mark a motion “ready” online or by calling the clerk’s office on the Tuesday through Thursday before the relevant short calendar. Motions to Extend filed on the law day are permitted to go forward, regardless of whether they have been marked properly. Such motions are nevertheless captured in my set because they become write-ons, which the clerk retroactively marks for the homeowner. For other motions, especially Petitions for Reinclusion, a homeowner sometimes files the motion, fails to mark it “ready,” but nevertheless appears in court. And on some such occasions, the opposing counsel is in court and the homeowner is allowed to proceed anyway. In this rare circumstance, such cases might have slipped through my sample because on the short calendar printouts the relevant motion was not marked “ready.” However, most would still have been caught, for one of two reasons. First, in these situations, usually the reason the homeowner is in court despite not marking is because she received notice of a different motion, which has been marked “ready,” triggering inclusion in my set. Second, on ASC days, if the person requested assistance, she made it into my set through my reviewing volunteers’ notes. Because of these two safeguards, it is unlikely that many such motions were not included.
The printouts included appearances as of the date they were printed in mid-February 2017. This means that the set may not include a motion if the motion was argued pro se by a homeowner who later retained an attorney, and that later attorney filed her appearance in lieu of the homeowner’s pro se appearance. However, based on this study and a discussion with practitioners with more than a decade’s experience representing foreclosure defendants in Connecticut, this under-inclusiveness is negligible because attorneys rarely file appearances in lieu of their clients. This makes sense: as long as the self-represented appearance is on file, the homeowner will receive a copy of all filings in the case. Also, a graceful exit is easier; if counsel later were to file a Motion for Permission to Withdraw Appearance, the attorney could exit, with the judge’s permission, without leaving her client with no appearance on file.
In rare cases, filing an appearance in lieu of one’s client might be warranted: for instance, (1) when a limited-scope appearance attorney switches to a full-scope appearance and wants to emphasize that fact; or (2) when a client expresses confusion or annoyance at receiving court notices, especially in cases of extensive motions practice. Some such cases may have been excluded from the study set.
For instance, when a plaintiff-lender filed a Motion to Extend—or a Motion to Open and Vacate the Judgment—this motion was generally excluded as nonadversarial. This frequently occurs when the parties have successfully negotiated an alternative resolution, or when mediation or out-of-court discussions are progressing effectively towards such a resolution. Plaintiffs Motions to Open Judgment were included in the data set, however, if title had already passed. Restoring the equity of redemption requires the consent of all appearing parties, not only the plaintiff, so I presumed that all such motions were potentially adversarial.
This decision regarding which classes of motions to exclude tracks ASC volunteers’ approach in deciding whom to represent. Motions for summary judgment were excluded because they are fact-bound, and fact-bound motions do not lend themselves to limited-scope advocacy. The limited time available is generally insufficient to adequately familiarize oneself with the entirety of the pleadings, and without at least such familiarity it is difficult to make an argument about the facts. This removed from the set one ASC case from very early in the program’s existence in which a volunteer represented a homeowner in opposing summary judgment.
Commercial motions were excluded because they, too, would require too much time for ASC to have gotten involved. A few other unusual motions were excluded because, though a handful might have benefitted from ASC assistance, these were too few to create generalizable data.
Though I reviewed privileged documents, all references herein to specific cases rest on publicly available information.
To be specific, the 397 interactions in the initial set but excluded from the final set were as follows. For 260, at least one natural-person defendant had an attorney for the entire case (e.g., because Divorced Spouse One filed a pro se appearance; though the case was included in the initial set, it was excluded after review of the docket because Divorced Spouse Two had an attorney). Sixty involved motions that, on further inspection, were not the sort of motions in my set (e.g., the motion was uncontested, fact-bound, etc.). For 40, though the homeowner was pro se for part of the case, he had an attorney on the relevant date. Sixteen cases were inaccessible, suggesting a clerical error or that the case had been sealed. Ten involved homeowners who filed pro se appearances at some point but did not have pro se appearances filed by the date of the interaction. Seven were included on the short calendar in error, or at least never appeared to go forward. Four had been transferred to a different judicial district.
See St. Conn., Jud. Branch, http://www.jud.ct.gov [http://perma.cc/ZMB7-H6LG]. To access the filings, use the Civil Case Locator on the left side of the judicial website and enter the case’s docket number.
The only example of this in the sample were two dismissals for lack of personal jurisdiction, based on improper service of process. ASC volunteers spotted the issue in both instances.
Generally, the plaintiff withdrew the action based on an alternative resolution like a loan modification. Often, mediation facilitated this resolution.
For smaller suits, like when the plaintiff was suing on a water lien or tax lien, given sufficient time, the homeowner was often able to satisfy the judgment by paying the entire amount. When this failed, another defendant (usually the mortgagee) often agreed to pay the small amount owed on behalf of the homeowner, tacking it on to the mortgage.
Cases were classified in this category when the law day had passed, plus an additional three months—or when the sale had been approved and title had passed, plus an additional two months—without any indication that the defendant remained in the property.
Cases were classified in this category when the law day had passed or the sale was approved and became final; the plaintiff or buyer was issued an execution of ejectment by the court; and either (a) another month had passed without indication that the defendant remained in the home, or (b) the execution of ejectment was returned satisfied by the sheriff, indicating that the sheriff personally removed the defendant. Note that even in these cases, actual bodily ejectment was quite rare, occurring in only two cases in my sample.
Very rarely, a commercial defendant allowed the homeowner’s law day to pass and then redeemed by paying off all superior liens on the commercial defendant’s own law day. In these cases, title passed to the redeeming defendant, the equity of redemption was extinguished, and the homeowner had to leave the home. Accordingly, such cases count as losses for the homeowner.
These few cases were waiting rulings by the Appellate Court. No defendants in the sample sought certification by the Connecticut Supreme Court.
Cases were classified in this category when the sale date had passed but title had not yet passed to the buyer, either because the sale had not yet been approved, or because the twenty-day appeal period had not yet run. In such a case, though unlikely, the homeowner may still retain the home by, for instance, filing a bankruptcy petition.
Cases were classified in this category when a judgment of foreclosure had been entered but the law day or sale date had not yet passed. In such a case, there was still a chance that the defendant would retain his home. Because of the frequency with which loans are modified after judgment, judgment is not a reliable indicator that title will pass.
These cases went to judgment, but prior to the law day or sale date the homeowner declared bankruptcy, staying the case.
In these cases, the plaintiff had filed a motion for judgment of strict foreclosure, or a motion for judgment of foreclosure by sale, but the judge had not yet ruled on the motion. Note that if the motion was more than three months old, I disregarded it unless a party had recently filed a “reclaim,” placing the motion on another short calendar.
One might say that these cases were in limbo. There was no entry of judgment, and there were no pending motions. (If a pending motion was more than three months old, it was disregarded, unless the motion was set for argument.) Often, these cases were in mediation or involved negotiations outside of court that might result in a modification or other resolution favorable to both parties.
Cases were classified in A-1 if, during the study period, they were ever represented by ASC. This permits one to measure whether a single ASC interaction has an effect on the case as a whole; thus, it does not matter how many non-A-1 interactions a person has in the study period. The same rationale applies to the other “A” categories.
The decision whether to group a case into B or C was arbitrary. This did not matter, though, because ultimately, the data did not illustrate any significant difference between cases in B versus cases in C, so I merged them in the analyses in the body of this Note. This lack of a significant difference means that those who appeared in court on non-ASC days after the program was launched did about as well as those who appeared in court prior to ASC’s launch.