Page 92 - Impact: Collected Essays on Expanding Access to Justice

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a number of levels, and most importantly in improving outcomes for those litigants represented through the program .61
Foreclosure Settlement Conferences
Another form of limited scope representation is representation for purposes of settlement conference in foreclosure cases . In the wake of the Great Recession and its foreclosure crises, New York State instituted mandatory settlement conferences as the first step in mortgage holders pursuing foreclosure litigation .62 Further, the courts agreed to allow attorneys to put in limited scope appearances to represent foreclosure litigant defendants for purposes of these settlement conferences only .
Representation in mandatory settlement conferences provides an effective means to resolve some foreclosure cases without the need for full litigation . Attorneys have taken advantage of this . Dramatically, this has led to an increase of representation to 61 percent of defendants in settlement conferences, up from 33 percent in 2011 .63 Litigated foreclosure cases require extensive resources and time commitments, given that foreclosure cases in New York last on average close to three years,64 making limited representation for settlement conference purposes only an attractive alternative .
Alternatives to full representation in Practice
As discussed above, there have been a wide variety of programs instituted in New York State, and in particular in New York City, to expand access to justice in ways that provide less than the traditional full representation . Just as seeking the right to counsel in certain limited types of cases does not diminish the argument or necessity for seeking this right for other types of cases, so too the provision of less than full representation for some clients does not diminish the argument that full representation should be provided in those types of cases in the future .
Former Chief Judge Lippman, with his programs and in his writing, has advocated for such an incrementalist approach while recognizing the benefits of full representation .65 Under this approach, the courts, in partnership with the legal services community and the bar more generally, pursue a wide range of initiatives that allow us to “incrementally move closer to a civil Gideon .”66 Similarly, in California, the Model Equal Justice Act also takes the approach of providing for less than full representation in certain cases as a way to provide equal justice .67
61 See office of The adminisTraTiVe Judge of The ciVil courT of The ciTy of new york eT. al., VolunTeer lawyer for a day ProJecT rePorT: a TesT of unbundled ciVil legal serVices in The new york ciTy housing courT (2008), available at http:// www.nycourts.gov/courts/nyc/housing/pdfs/vlfdreport_0208.pdf.
62 See hon. Mark C. Dillon, The Newly–Enacted CPLR 3408 for Easing the Mortgage Foreclosure Crisis: Very Good Steps, but Not Legislatively Perfect, 30 Pace l. reV. 855, 856 (2010).
63 See hon. lawrence k. marks, 2015 rePorT of The chief adminisTraTor of The courTs 5, available at https://www. nycourts.gov/publications/pdfs/2015ForeclosureReport.pdf.
64 See N.y.s. dePT. of financial serVs., rePorT on new york’s foreclosure Process (2015), available at http://www.dfs. ny.gov/reportpub/fore_proc_report_052015.pdf.
65 See Lippman, supra note 27, at 1587-88.
66 Id. at 1587.
67 See cal. commission on access To JusTice, The PaTh To eQual JusTice: a fiVe-year sTaTus rePorT on access To JusTice in california 6 (Oct. 2002), available at http://www.calbar.ca.gov/LinkClick. aspx?fileticket=QhMjgCPh4gg%3D&tabid=216.
Impact: Collected Essays on Expanding Access to Justice