Attorney for the Day: Measuring the Efficacy of In-Court Limited-Scope Representation.

Author:Mandilk, James G.
 
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NOTE CONTENTS INTRODUCTION 1831 I. BACKGROUND: THE RISE OF LIMITED-SCOPE REPRESENTATION 1834 II. PRIOR STUDIES ON THE EFFICACY OF LIMITED-SCOPE REPRESENTATION 1840 III. THE ATTORNEY FOR SHORT CALENDAR PROGRAM 1848 A. The Motions Argued at ASC 1848 B. A Typical Day at ASC l853 IV. THE EFFICACY OF LIMITED-SCOPE REPRESENTATION AT ASC 1855 A. Limited-Scope Representation at ASC Improved Client Outcomes on That Day's Motion. 1858 1. ASC Won Clients Significantly More Time in Their Homes. 1858 2. ASC Clients Were Significantly More Likely To Have the Judge Defer Ruling on a Motion for Judgment. 1862 3. ASC Volunteers File, Argue, and Win Mediation-Related Motions More Often Than Pro Se Homeowners. 1864 B. ASC Clients Stayed in Their Homes Significantly More Often. 1865 C. The Benefits of ASC Remain Even After Controlling for Selection Bias. 1867 D. Other Independent Variables Do Not Correlate with Significantly Different Outcomes. 1873 E. ASC Enhanced the Fairness of the Process and Helped To Make Homeowners Feel Heard. 1874 V. IMPLICATIONS FOR LIMITED-SCOPE REPRESENTATION 1876 A. In-Court Limited-Scope Representation Should Be Permitted 1877 B. Clinics Should Consider Limited-Scope Representation 1878 CONCLUSION 1881 APPENDIX: RESEARCH METHODOLOGY 1883 "But the mere truth won't do.... You must have a lawyer." --Dr. Woodcourt, CHARLES DICKENS, BLEAK HOUSE (1) "I felt much better not being alone today." -Anonymous ASC Client, Exit Survey (2) INTRODUCTION

When Franklin O'Neil came to court, much of his body was encased in plastic. (3) He was undergoing treatment for eczema, and at the same time, he was fighting to save his home. Mr. O'Neil filed an appearance shortly after the lawsuit began, but due to a clerical error it was never recorded. The court defaulted him for failing to appear, and by the time he came to court in October 2016, the bank had taken title to his home and was about to evict him. In a last-ditch effort, he filed a four-sentence, handwritten motion asking the court to reopen the judgment. But Mr. O'Neil couldn't afford counsel. When he walked into court, he thought he would need to face the judge, and the bank's lawyer, alone.

Like Mr. O'Neil, millions of American litigants are unable to afford counsel in civil cases. (4) Legal aid clinics and pro bono attorneys are sharply limited in the number of people they can effectively represent. (5) In response to these trends, clinics are increasingly turning to limited-scope representation, in which attorneys represent clients for only a portion of a case. While limited-scope appearances respond to a pressing need for legal representation, they are new (6) and somewhat controversial. (7) Commentators have questioned whether such a small dose of legal advocacy makes a difference for clients. (8)

This Note focuses on the effectiveness of limited-scope representation. In doing so, it fills a scholarly gap left by existing empirical research. Prior to this Note, there has been little published quantitative assessment of the efficacy of limited-scope representation. The few academics to write on the topic, including a small number with empirical studies on out-of-court limited-scope representation, (9) have expressed skepticism as to whether it leads to better outcomes for clients. This Note is the first publication to quantitatively assess in-court limited-scope representation, and it is the first to find that limited-scope representation improves client outcomes.

This study covered more than twelve hundred foreclosure-related motions that were heard at the New Haven Superior Court short calendar hearings from October 2015 through January 2017. The short calendar hearings were weekly sessions during which the court addressed all pending motions in foreclosure cases except those motions that were complicated enough to merit their own scheduled hearing. On about half of the days when these short calendars took place, all homeowners who arrived in court without counsel were invited by the court clerk to speak with volunteers from the Attorney for Short Calendar program ("ASC"), a pro bono initiative run by the Mortgage Foreclosure Litigation Clinic at Yale Law School (now known as the Housing Clinic) and the Connecticut Fair Housing Center. All who requested help from ASC received at least advice, and most received in-court limited-scope representation. Even for those represented in court, the attorney-client relationship generally lasted for no more than three hours. (10)

To measure the program's efficacy, I reviewed the dockets, the orders, and, when necessary, the underlying filings for all relevant motions scheduled for argument on a day during the study period. Cases were excluded if the defendant never filed an appearance or was represented by a traditional, full-scope attorney. I also read dozens of roll call transcripts, which recorded whether parties were present for each case, to assemble a control group of cases from non-ASC days. This control group and the large sample sizes at issue allowed the data to be refined to control for selection bias. (11)

Those data show that when the judge ruled on short calendar motions, he or she awarded clients represented in court by the Attorney for Short Calendar program 48.3 more days in their home, on average, as compared to pro se homeowners. (12) Furthermore, the benefits of this small dose of representation persisted: when the case reached final disposition, often months later, ASC clients were more likely to win the case--that is, to remain in their home. (13) Homeowners who received in-court ASC representation ultimately kept their homes in 51.8% of cases. By contrast, the success rate for pro se homeowners that never had in-court limited-scope counsel was only 28.6%. (14) In these cases, limited-scope representation was a net benefit for homeowners, which suggests that this novel form of representation might alleviate some of the systemic inequities in legal representation.

Given the potential of limited-scope representation and the crisis of adequate legal counsel, legislatures and courts in states that prohibit in-court limited-scope representation should modify their laws. Such representation should be permitted whenever a limited-scope attorney can ethically represent his client, following the Rules of Professional Conduct. Likewise, legal aid clinics nationwide should consider limited-scope representation when trying to most efficiently deploy their resources. (15)

This Note begins by discussing limited-scope representation's place in American legal history and its recent rise in Part I. Part II reviews the existing literature on limited-scope representation, summarizing procedural, ethical, and substantive concerns. That Part focuses especially on the few quantitative studies that have been conducted on the efficacy of limited-scope representation. Part III summarizes the aspects of Connecticut foreclosure law that are most relevant to ASC's limited-scope representation and then describes the day-to-day operation of ASC. Part IV provides empirical conclusions. Part V offers recommendations to legislatures and judicial rules committees. By focusing on the features of the ASC that may make its variety of limited-scope representation particularly effective, that Part also offers advice to clinics interested in adopting the ASC model.

  1. BACKGROUND: THE RISE OF LIMITED-SCOPE REPRESENTATION

    Limited-scope representation seems unusual today because it is assumed that an attorney will represent her client for the entirety of a case. But limited-scope representation is consistent with long-standing principles of legal ethics. In early America, to the extent that lawyers agreed on any ethical underpinning for the profession, (16) "a lawyer's primary responsibility was assumed to be to the community and society at large." (17) This public-service model was motivated, in part, by lawyers' prominence in politics. (18)

    In the nineteenth century, lawyers' conception of their ethical responsibilities gradually evolved, as the profession's importance to industry protected it against populist forces. (19) By 1908, when the ABA adopted the Canons, the old public-service model had been eclipsed by a new theory of lawyers' ethics in which a lawyer's primary duty is to his client. (20) This model emphasized the virtues of zealous advocacy. (21) Current rules of legal ethics continue to center on an attorney's duties to her client. Specific requirements of legal ethics are couched within a more general ideal: "As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." (22)

    In any individual case, the primacy of client service is sensible. (23) Writ large, however, the current model for the attorney-client relationship has failed to live up to that earlier ethical principle--that lawyers serve the needs of the public. Today, an estimated 75 to 80% of civil litigants represent themselves. (24) The need is acute across the country, even in large cities with higher concentrations of lawyers. For instance, although New York City has more than twice the national average concentration of lawyers, (25) "99% of New York City tenants in eviction cases were self-represented." (26) As another example, among all debt collection cases in New Jersey's lower level court in 2013, 97% of defendants were unrepresented. (27) And in Hawaii, a 2017 report noted that "96% of tenants in landlord-tenant cases and 80% of homeowners in foreclosure cases do not have legal representation." (28) Because of resource constraints, legal aid organizations must turn away about half of those who seek their help. (29) The dearth of representation in civil cases is alarming.

    In contrast to criminal cases, needy litigants in civil matters have no right to counsel. (30) This is true even in life-altering civil cases: domestic violence matters that pose imminent bodily harm, public benefits cases that...

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