Comments on the Proposed Amendment of the New York Code of Judicial Conduct re. Judge’s Role in Facilitating the Ability of Unrepresented Litigants to Have Their Matters Fairly Heard
This statement was adopted by the NYCLA Board of Directors at its regular meeting on March 11, 2013.
The Administrative Board of the Courts (“Administrative Board”) has approved for public comment the following proposed amendment of section 100.3 of the New York Code of Judicial Conduct (“A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently”) by adding a new section (B) (12):
It is not a violation of this Rule for a judge to make reasonable efforts to facilitate the ability of unrepresented litigants to have their matters fairly heard.
The proposed amendment results from a recommendation by the Task Force to Expand Access to Civil Legal Services and is based on ABA Model Judicial Code Rule 2.2. According to the Task Force, 25 states have adopted similar language.
The NYCLA Task Force on Judicial Selection, co-chaired by Hon. Margaret J. Finerty and Susan B. Lindenauer, considered this proposed new rule at its February 22 meeting and voted, with one member opposing, to recommend its adoption as an important first step in clarifying the role of judges in accommodating unrepresented litigants. The NYCLA Civil Court Practice Section, cochaired by Mitchell B. Nisonoff and Rachel A. Siskind, also reviewed the proposed new rule and recommended its adoption for the same reason. Both groups noted the importance of the Administrative Board issuing guidelines after adoption of the rule to serve as a resource for judges. NYCLA has attached its Report on Best Practices for Judges in the Settlement and Trial of Cases involving Unrepresented Litigants in Housing Court, more fully described below, for consideration by the Administrative Board in the development of implementing guidelines.
In 2004, NYCLA convened a conference on the New York City Housing Court at which participants recommended reforms in a number of areas, including the need for civil legal services and for guidelines for judges in their handling of cases involving unrepresented litigants. As about 98 percent of the tenant litigants in Housing Court are unrepresented, this was a critical Issue for the Task Force on the Housing Court empanelled after the conference. In December 2006, the NYCLA Board adopted the Task Force’s Report on Protocols for judges in the Settlement and Trial of Cases Involving Unrepresented Litigants in Housing Court, which included best practices designed to assist judges but not limit judicial discretion. The Appendix to this Report (attached), entitled Background Memo on Judicial Ethics: The Role of Judges in Settlement and Trial of Cases Involving Unrepresented Litigants, was co-authored by two distinguished ethicists, Russell Engler and Stephen Gillers. The authors concluded: “This memorandum provides ample authority for the proposition that judges may play an active role in handling cases involving unrepresented litigants to avoid forfeiture of rights and allow unrepresented litigants meaningful access to the courts”
In August 2008, the House of Delegates of the American Bar Association adopted a resolution proposed by NYCLA that included a modified version of the Report described above, entitled Best Practices for judges in the Settlement and Trial of Cases Involving Unrepresented Litigants in Housing Court (attached) and that noted that the best practices should be implemented within the discretion of each judge and to the limit of existing resources. The resolution further included the important statement that the Best Practices were not intended to supersede efforts to promote and expand pro bono legal service programs or a funded right to counsel. The Best Practices Report emphasized that although the Best Practices were designed with a specific court in mind, the New York City Housing Court, they were applicable to civil courts in general.
In 2010, a New York State Bar Association Special Committee to Review the Rules of Judicial Conduct proposed the following rule: A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially. In its comments on the proposed rule, NYCLA recommended the following additional language: It is not a violation of this Rule for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.
Recent reconsideration of the NYCLA proposal by the Task Force on Judicial Selection led to the recommendation that NYCLA should support the Administrative Board’s proposed rule as it is unrealistic to burden judges with a more stringent standard. The language in the Administrative Board’s proposed rule clarifies, but does not circumscribe, the role of judges when litigants are unrepresented.
Therefore, NYCLA supports adoption of the proposed rule provided that the Administrative Board promulgate guidelines for judges. NYCLA submits its Best Practices Resolution and Report, adopted both by NYCLA and the American Bar Association in 2008, as a model for such guidelines.
BACKGROUND MEMO ON JUDICIAL ETHICS:
THE ROLE OF JUDGES IN SETTLEMENT AND TRIAL
IN CASES INVOLVING UNREPRESENTED LITIGANTS
by Russell Engler and Stephen Gillers
This memorandum examines a range of authorities in demonstrating that an active role of judges in the New York City Housing Court in the settlement and trial phases of their cases involving unrepresented litigants is consistent with the strictures of judicial ethics. Part I discusses the relevant Canons of Judicial Ethics. Part II discusses court decisions generally applying those Canons, identifies specific contexts in which the active judicial role is mandated and examines relevant New York authority regarding settlements in New York City Housing Court. Part III summarizes recent law review articles and other commentary calling for judges to play an active role in cases involving unrepresented litigants and explaining how the active role is consistent with the governing Canons of Ethics and caselaw. Part IV discusses the growing trend across the country toward the more active role of courts generally, and judges specifically, in cases involving unrepresented litigants, as reflected in resolutions from the Conference of Chief Justices and Conference of State Court Administrators, the Best Practices recently proposed by the American Judicature Society and State Justice Institute, and the Guidelines for state court judges adopted in Massachusetts in 2006.
- The Canons of Judicial Ethics
The Canons of Judicial Conduct provide only general guidance to judges handling cases involving unrepresented litigants. As with other cases, Judges are required to uphold the Integrity and Independence of the Judiciary (Canon 1) and Avoid Impropriety and the Appearance of Impropriety (Canon 2). The concept of avoiding the appearance of impropriety is intertwined with the concept of carrying out judicial responsibilities with Integrity, Impartiality and Competence. (Canon 2A, including Comment ). Canon 3 requires Judges to perform their duties Impartially and Diligently, These concepts include the obligation to be “patient, dignified and courteous,” and to perform judicial duties without bias or prejudice; the failure to do so undermines the fairness of the proceeding (Comments [11 & ).
The text of the Canons and Commentary provides little direct guidance as to how active or passive a judge may, or must, be in handling cases involving unrepresented litigants. In the words of one set of authors trying to provide guidance as to appropriate judicial techniques:
In sum, the Canons of Judicial Ethics require judges to remain fair and impartial and to maintain the appearance of fairness and impartiality, but give no further guidance about the meaning of those terms when unrepresented persons appear in court.
Moreover, our understanding and application of the basic notions embedded in the judicial canons change over time. When the American Bar Association announced in 2003 the appointment of a Joint Commission to Evaluate the Model Code of Judicial Conduct, the ABA President observed: “Judicial ethics are not static…. It has been 12 years since the ABA took a good, hard look at the code….” What is appropriate, or necessary, in 2006 in a particular context might be different from what was generally accepted 15 years ago, even without amendment to the relevant Canons.
- Case Law and Statutory Authority
- Decisions Generally Discussing the Role of the Judge
The cases interpreting the judicial role where unrepresented litigants are involved draw from the basic principles reflected in the Canons, requiring that judges remain impartial and neutral, while being fair and providing justice. Some cases interpreting these basic principles emphasize that unrepresented litigants must play by the same rule as represented parties, and caution that the judge may not play the role of advocate or attorney for the unrepresented litigant. Others suggest that judges must provide some measure of assistance to the unrepresented litigant to avoid a miscarriage of justice.
“Uncertainty among trial judges about how to treat self-represented litigants is understandable given the mixed signals sent by appellate courts.” Some commentators have organized the cases into competing visions of “strict” or “liberal” approaches in cases involving unrepresented litigants, with the strict approach emphasizing that unrepresented litigants will be treated no differently from represented ones, and the liberal approach urging trial judges to ensure fairness and therefore make reasonable accommodations for unrepresented litigants that do not prejudice the opposing party. Other commentators attempt to reconcile the decisions, reading the cases to hold that courts should be lenient to both attorneys and self-represented litigants when appropriate to promote the goal of deciding cases on the merits, or synthesizing the holdings into a series a propositions, with the results varying based on whether “soil” or “hard” procedural bars, such as vacating defaults in contrast to statute of limitations, are at issue, but still with a goal of producing consistent outcomes for represented and unrepresented parties.
An effort to draw lessons from the cases is complicated further by two problems in analysis, First, the cases tend to recycle general language, without regard to the context or facts of the case. As a result, language uttered in the context of a criminal proceeding, where there is a constitutional right to appointed counsel, or an extreme case involving a vexatious plaintiff, is applied to other fact patterns without any analysis as to whether it is appropriate to do so. Thus, while one synthesis above focuses on the nature of the accommodation at issue, other relevant factors relate to the court, the nature of the proceeding and the understanding and capabilities of the litigants. Second, although most cases settle, the published decisions tend to focus on the judge’s role in either construing pleadings or conducting trials, providing very little guidance to daily tasks that occupy the attention of judges in many civil cases.
Over 25 years ago, one court concluded that “[t]he proper scope of the court’s responsibility to a pro se litigant is necessarily an expression of careful exercise of judicial discretion and cannot be fully described by specific formula.” As with the judicial canons, the governing cases fail to provide a clear vision of how active or passive judges should be. Yet, despite the range of decisions, the words of one Illinois Appellate Court continue to ring true:
The heavy responsibility of ensuring a fair trial in…a situation [involving a pro se litigant] rest[s] directly on the trial judge. The buck stops there…. In order that the trial proceed with fairness… the judge finds that he must explain matters that would normally not require explanation and must point out rules and procedures that would normally not require pointing out.
- Small Claims Courts, Administrative Agencies and Problem-Solving Courts
Precedent from Small Claims Courts, administrative agencies and, more recently, the so- called “Problem-Solving Courts,” serves as an important reminder that impartiality does not require passivity on the part of judges. Like other judges, Small Claims Court Judges must remain impartial. Yet, Small Claims Court judges typically are also required to conduct trials in a manner best suited to discover the facts and secure substantial justice, assisting the litigant with the presentation of material, questions of law and the procedures to be followed.
Administrative Law Judges (ALJ’s) in Social Security, welfare and unemployment benefits cases must also remain impartial. Yet, in Social Security cases, the ALJ’s have a “basic obligation to develop a full and fair record,” which “rises to a special duty when an unrepresented claimant unfamiliar with hearing procedures appears before him.” “To satisfy this special duty, the ALJ must ‘scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.’” The obligation for administrative judges to provide extensive assistance to litigants extends beyond Social Security law, to areas such as welfare and unemployment benefits cases.
More recently, an array of “Problem-Solving Courts,” such as Drug Courts, Mental Health Courts, Domestic Violence Courts and Community Courts, have emerged in New York and across the country, creating new challenges—and modified roles for the judges who preside in those courts. In discussing New York’s experiment with the new courts, Chief Judge Judith Kaye discussed the interplay between the active judicial role and the need to remain impartial:
Gauging the fairness of problem-solving courts is a far more challenging task. … Does it shake the foundation of the adversarial system or compromise courts’ ability to make fair and impartial decisions? ….
It should be clear that a judge’s engagement with drug court defendants in no way diminishes or obscures the court’s responsibility at all times to retain the role of impartial, independent decisionmaker and guardian of legal rights.
Whatever differences may exist between the Housing Courts and contexts of Small Claims Courts, administrative agencies and Problem-Solving Courts, the larger principle remains that judges may, and in certain contexts must, be active in assisting litigants without compromising impartiality.
- Stipulations in New York City Housing Court
Decisional law in New York City housing cases allows judges to exercise their discretion to vacate stipulations that are unduly harsh or one sided, particularly where an unrepresented litigant waives important rights. Relief may be granted to prevent injustice, upon a showing of good cause. A party’s lack of representation at the time of entry into the stipulation is a significant factor to be considered in determining whether good cause exists to vacate the stipulation. Unfairness includes a pro se tenant’s failure to assert a substantial defense to the landlord’s claims in the proceeding, particularly where substantial prejudice results.
If the controlling authority provides for the vacatur of one-sided, unfair and unduly harsh stipulations where unrepresented litigants are involved, the judges necessarily should not be approving such stipulations in the first place. Thus, a 1997 Administrative Notice (AN LT-10), applicable to the Housing Court, advised that “[n]o stipulation in which any party is pro se should be approved by the Court unless the Judge is convinced that a pro se litigant understands the terms of the stipulation and an allocution is conducted on the record.” The same Administrative Notice also provided that “[t]he judge should also ascertain if a pro se litigant’s claims or defenses are adequately addressed prior to so ordering any stipulation,” and that review of stipulations by court attorneys “should be in addition to the allocution.”
- Understanding the Resistance to the Active Role
Before turning to the recent commentary that increasingly calls for a more active role for judges, it is important to acknowledge the resistance to that notion that emerges from some cases, reports and anecdotes. The New York County Lawyers’ Association’s Report from its October 2004 Conference captures the concern of the working group that judges not “cross the line” into advocacy, that they remain “evenhanded while performing a more active role,” and that the more active role be “consistent with the duty of impartiality.” These concerns mirror language in some cases warning that the judge may not play the role of advocate or attorney for the unrepresented litigant, practice law on their behalf or give legal advice. Other objections to the more active role expressed by judges include the opinion that assisting unrepresented litigants amounts to giving them a “free lunch,” that some unrepresented litigants will try to use their unrepresented status to a tactical advantage, and that steps to assist unrepresented litigants will increase the likelihood that they choose to bypass counsel even when they have the means to retain counsel. Supporters of the more active role worry that “judges who undertake more active oversight of pro se cases may face problems with reappointment”
Each of these points deserves consideration in any initiative designed to support the more active role. However, not all of the concerns are rooted in concerns of judicial ethics. The concerns about litigants attempting to manipulate the system, bypass counsel and obtain a free lunch are policy considerations; whether they even are factually correct or, where valid, describe the exception rather than the rule in Housing Court, might be explored should the factual issues alarm those in a position to make policy. The concern from supporters about individual judges seeking reappointment is a strategy decision, and one that can be addressed by the adoption of protocols, removing the decision to play the active role from isolated judges.
The remaining concerns, while related to judicial ethics, relate to the interpretations of the general notions articulated in the canons and caselaw regarding impartiality, neutrality and partisanship. They merit serious attention in considering the implementation of the active role, but they raise no additional issues of judicial ethics from the ones fleshed out above. The question remains whether, and how, the active role can be implemented in a way that is consistent with the fundamental duties of impartiality and neutrality. The next two sections discuss recent authority supporting the conclusion that not only may the active judicial role be performed in an impartial manner, but that the failure to perform the active role might yield a partial system that is biased against unrepresented litigants.
Over the past decade, a growing number of scholars have articulated the position that the need for judges to be impartial and fair requires them to play a more active role where unrepresented litigants are involved. The landmark volume, Meeting the Challenge of Pro se Litigation, produced in 1998 by the American Judicature Society (AJS) and State Justice Institute (SJI), reported a wide range of practices among judges and the absence of general policies guiding the judges; the Report’s recommendations included that “judges should provide reasonable assistance to self-represented litigants in the courtroom and states should adopt judicial protocols to guide judges assisting self-represented litigants. Professor Engler argued in an article published in 1999 that because the buck stops with the judge, and the judge bears the heavy responsibility for presiding over a fair proceeding, “the judge … must be as active as necessary to ensure that the legal system’s promise of fairness and substantial justice is not frustrated by the litigant’s appearance without a lawyer.” Dr. Jona Goldschmidt’s 2002 article rejects the notion that impartiality should be equated with passivity, and urges judges to be far more active in the adversary process. Writing on the same topic, Richard Zorza wrote that his
core thesis is that our focus on the appearance of judicial neutrality has caused us improperly to equate judicial engagement with judicial nonneutrality, and therefore to resist the forms of judicial engagement that are in fact required to guarantee true neutrality.
Professor Deborah Rhode urges courts to assist unrepresented litigants as part of the goal of providing access to justice. Professor Russell Pearce of Fordham urges a model of the judge’s role closer to the inquisitorial system, if that is what is required to provide access to justice for those without counsel:
Rather than serving as a passive umpire, judges should be active umpires responsible for remedying process errors that would deprive the court of relevant evidence and arguments and that would ensure informed consent to settlements.
Beyond the commentary in law review articles, extensive guidance also appears in the 2005 publication of the AJS and SJI, titled Reaching Out or Overreaching: Judicial Ethics and Self Represented Litigants. The document offers guidance at all stages of the proceeding, including explaining the process, instructing self-represented litigants regarding procedural actions, asking questions and handling evidence. The underlying premises of the recommended practices are that 1) the judge is more than a mere arbitrator, referee or moderator; 2) the judge can control the orderly presentation of evidence; 3) cases should be decided on the merits; and 4) the rules of procedure should work to do substantial justice. The document concludes:
Without raising reasonable questions about impartiality, judges should exercise discretion:
■ To make equitable, procedural accommodations
■ To provide self-represented litigants reasonable opportunity to have cases fully heard.
- Resolutions, Best Practices and Guidelines
The more active role of the judge at trial and in the settlement process is consistent not only with the growing body of scholarly opinion that has emerged over the past decade, but with recent resolutions that generally call on the courts to insure meaningful access for unrepresented litigants in civil cases. In 2000, the Conference of State Court Administrators (COSCA) addressed the general question of the obligation to assist unrepresented litigants as follows:
The threshold question in determining how to respond is whether the courts have an obligation to address the needs of self-represented litigants at all. The answer should be yes.
The following year, the Conference of Chief Justices (CCJ) promulgated Resolution 23, titled “Leadership to Promote Equal Justice,” which resolved in part to “[r]emove impediments to access to the justice system, including physical, economic, psychological and language barriers….” In 2002, the CCJ and COSCA jointly issued Resolution 31, resolving that “courts have an affirmative obligation to ensure that all litigants have meaningful access to the courts, regardless of representation status.”
Beyond the general language in the resolutions, specific guidance regarding settlement and at trial appears in the proposed Best Practices published by the AJS and SJI in Reaching Out or Overreaching Regarding settlement, the Best Practices advise judges to encourage, but not coerce, settlement or mediation. Once a settlement is presented to the court for approval, judges should “engage in allocution to determine whether the self-represented litigant understands the agreement and has entered into it voluntarily”; this process includes determining “that any waiver of substantive rights is knowing and voluntary.”
Regarding hearings, the Best Practices first advise pre-hearing practices that include explaining the process and ground rules, explaining the elements and the burden of proof, explaining the kinds of evidence that can and cannot be considered, and trying to get all parties to agree to relaxed rules of procedure so the hearing can proceed informally. At the hearing itself, the proposed Best Practices advise judges to question witnesses when the facts are confused, undeveloped or misleading, follow the rules of evidence generally but use discretion and overrule objections on technical matters, not allow counsel to bully or confuse self-represented litigants and take other steps necessary to prevent obvious injustice.
The most recent guidance comes from the comprehensive Guidelines promulgated by Massachusetts in 2006. The Massachusetts Guidelines constituted the first new set of state guidelines protocols to appear in a decade, with Minnesota’s Protocols having been promulgated in 1996. The Minnesota Protocols focus exclusively on the hearing process, providing ten procedures for hearing officers to follow, including explaining the process, explaining the elements, explaining the burden of proof and the kinds of evidence that can and cannot be presented, and asking questions to obtain general information.
The Massachusetts Guidelines apply to all phases of the court’s operation. While the Guidelines, which are advisory, apply to all the courts in the state, the drafters recognize that the “issues and challenges presented by self-represented litigants may vary in different court departments” and judges, therefore “are encouraged to use the Guidelines in a way that best suits the needs of their court and the litigants before them.” Regarding pre-hearing interaction, the Guidelines encourage judges to make reasonable efforts to insure litigants understand the trial process, and authorize judges to explain the elements of claims and defenses as they would to a jury. At trial, judges may provide self-represented litigants with the opportunity to meaningfully present their cases, and may ask questions to elicit general information and obtain clarification; where all parties are self-represented, judges may have the parties stipulate to proceed informally. Finally, in approving settlements:
Judges should review the terms of settlement agreements, even those resulting from, ADR, with the parties. Judges should determine whether the agreement was entered into voluntarily. If there are specific provisions through which a self-represented litigant waives substantive rights, judges should determine, to the extent possible, whether the waiver is knowing and voluntary.
The Commentary provides that when assessing whether a waiver of substantive rights is “knowing and voluntary,” the judge may consider how the phrase is used
in the context of informed consent, i.e., the agreement by a person to a proposed course of conduct after receiving adequate information and explanation about the material risks and. reasonably available alternatives to the proposed course of conduct.
- Recognizing the Limits of the Active Role
While compelling authority supports the principle that Housing Court judges may, and should, be performing their roles more actively to maintain the court’s impartiality, it does not follow that there are no limits to the active role. It remains critical for judges to avoid taking steps that favor one side over the other, that put the judge in the role of lawyer or advocate for one side, and that prejudice one side or reflect partisanship for one side, whether represented or not. For these reasons, the New York County Lawyers’ Association’s Report from its October 2004 Conference acknowledged “the importance of the judge remaining evenhanded while performing the more active role in pro se cases….” The Massachusetts Guidelines, while fleshing out the more active role for judges, cautions that “[t]his does not mean that a judge must become a lawyer for a self-represented litigant.” The Guidelines capture the importance of explanations as a tool for judges performing the active role without appearing to favor one side:
To avoid the appearance of partiality, judges should explain that the questions are being asked to clarify testimony and that they should not be taken as any indication of the judge’s opinion of the case. This is particularly important in cases involving one self-represented litigant and one represented party.
Trainings and other forms of guidance for judges become crucial tools to assist judges in employing techniques that allow for the more active role without the appearance of partiality. These points underscore the important role that perception plays in our sense as to what it means to be impartial, allowing us to recognize a growing trend toward accepting the more active role as an important component of maintaining impartiality.
The more routine [the more active] practices become, in all cases involving self-represented litigants and indeed most cases involving individual litigants regardless whether represented, the more likely they will be accepted and the less likely they might be construed as evidence of partiality.
This memorandum provides ample authority for the proposition that judges may play an active role in handling cases involving unrepresented litigants to avoid forfeiture of rights and allow unrepresented litigants meaningful access to the courts. For the most part, however, the authority speaks in terms of the discretion afforded to individual judges to play the active role. Simply restating the extent of an individual judge’s discretion, however, will not respond to the problems currently facing the New York City Housing Court, as reflected in the New York County Lawyers’ Association’s recent Report 0n the New York City Housing Court. Those problems included:
1) the lack of information available to pro se’s about their legal claims or defenses, compounded by their difficulties in “negotiating the system” to articulate or present such claims; and
2).inconsistent or insufficient protocols for the Court’s oversight of cases in which pro se’s have represented adversaries.
Unless and until the Court adopts and enforces protocols providing for an active role for the judge both at trial and in approving settlements, the problems will persist.
New York County Lawyers’ Association
14 Vesey Street
New York, NY 10007
(212) 267-6646 · Fax: (212) 406-9252
NEW YORK COUNTY LAWYERS’ ASSOCIATION
This Resolution was adopted by the American Bar Association at its Annual Meeting on August 11, 2008.
RESOLVED, That the American Bar Association adopts the Best Practices for Judges in the Settlement and Trial of Cases Involving Unrepresented Litigants in Housing Court, dated August 2008, as guidelines for jurisdictions to adapt as needed for use in reviewing stipulations for the settlement of cases and for use in other proceedings to help ensure that unrepresented litigants have a meaningful understanding of the terms of a settlement or alternatives to settlement; and it is further
RESOLVED, That it is intended that these Best Practices be implemented within the discretion of each individual judge and to the extent possible given limits of existing resources; and it is further
RESOLVED, That these Best Practices are not intended to supersede efforts to promote and expand pro bono legal service programs and a funded right to counsel in Housing Court proceedings.
New York County Lawyers’ Association
14 Vesey Street
New York, NY 10007
(212) 267-6646 · Fax: (212) 406-9252
BEST PRACTICES FOR
JUDGES IN THE SETTLEMENT AND TRIAL OF CASES INVOLVING UNREPRESENTED LITIGANTS IN HOUSING COURT
This Report was adopted by the American Bar Association at its Annual Meeting on August 11, 2008.
This Report was approved by the Executive Committee of the New York County Lawyers’ Association at its regular meeting on April 22, 2008.
Court systems around the United States are faced with an increasing number of unrepresented litigants in civil cases. Often these litigants cannot afford to pay for legal representation, even though their cases may have serious economic and other consequences for themselves and their families. In Housing Court, unrepresented tenants may be evicted, a “devastating and traumatic experience, particularly for low-income tenants… who are displaced into a housing market that has virtually no housing that is affordable to them.”
Providing representation for people facing eviction, often called civil Gideon, would clearly benefit those who cannot afford an attorney to represent them in housing proceedings. Advocates seeking enactment of legislation providing a right to counsel, as well as funding for programs to support that right, argue that “[fundamental fairness, the constitutional rights to due process and equal protection of the law, and sound policy all require recognition of a right to counsel….”
Until state and municipal legislatures enact a civil right to counsel and provide appropriations to finance it, court systems should develop mechanisms for promoting the fair, equitable and consistent treatment of unrepresented litigants. A substantial body of literature supports best practices to ensure that unrepresented litigants have a meaningful opportunity to be heard. There is a growing trend around the country toward a more active role for judges in cases involving unrepresented litigants. Many jurisdictions and associations of judges and court administrators have recommended an enhanced role for judges in dealing with unrepresented litigants, and have recognized that such a role is fully consistent with the canons of judicial ethics.
To provide a resource for the New York City Housing Courts, where 90 percent of the tenants appear without an attorney and the same percent of landlords are represented by counsel, the New York County Lawyers’ Association’s (NYCLA) Task Force on the Housing Court studied the problem* reviewed court procedures and directives from the administrative judge, surveyed Housing Court judges to obtain their views about unrepresented litigants’ experiences, and produced a report.
These Best Practices, excerpted from the report, provide for an active role for judges, both in approving settlements and conducting trials, so that unrepresented litigants will better understand their rights, the court procedures and the results of the proceedings. These Best Practices have two parts, one for the allocution of stipulations (Best Practices for Housing Court Judges for Allocution of Stipulations of Settlement Involving Unrepresented Litigants) and one for trials/hearings (Best Practices for Housing Court Judges for Motions and Trials/Hearings Involving Unrepresented Litigants). In addition to the Best Practices submitted for adoption by the ABA, the report included a background memo on judicial ethics by Professors Russell Engler and Stephen Gillers.
The full report, along with other Task Force reports on the Housing Court, is available at http://www.nycla.org/siteFiles/News/News59_2.pdf.
Judicial Ethics: Role of the Judge in Cases Involving Unrepresented Litigants
Because the Best Practices contemplate an active role for judges in dealing with unrepresented litigants, NYCLA asked two ethics experts, Russell Engler, Professor of Law and Director of Clinical Programs, New England School of Law in Boston, and Stephen Gillers, Vice Dean and Professor of Law, New York University School of Law in New York City, to examine the Canons of Judicial Ethics and case law applying the Canons, as well as law review articles and reports of national and state judicial organizations commenting on the proper role of judges in cases involving unrepresented litigants. In their report, Professors Engler and Gillers found that an active role for judges at trial and in the settlement process “is consistent not only with the growing body of scholarly opinion that has emerged over the past decade, but with recent Resolutions that generally call on the courts to insure meaningful access for unrepresented litigants in civil cases.” They concluded that there was “ample authority for the proposition that judges may play an active role in handling cases involving unrepresented litigants to avoid forfeiture of rights and allow unrepresented litigants meaningful access to the courts.” Their report also recognized the need, which we propose here, for guidelines to assist judges in playing an active role while avoiding the appearance of partiality or partisanship for one side.
Use of the Best Practices
The Best Practices for Judges in the Settlement and Trial of Cases Involving Unrepresented Litigants in Housing Court are guidelines that can be adapted and implemented by civil courts in any jurisdiction, regardless of whether there is one court handling all civil matters, including landlord-tenant disputes, or a separate Housing Court as there is in New York City within the Civil Court. Until the unrepresented are represented by attorneys, the Best Practices may be used by judges to improve access to justice for people who cannot afford an attorney and to enhance the administration of justice for court systems confronting the proliferation of litigation involving the unrepresented.
The Best Practices recommend that the judge in housing cases review all stipulations to which an unrepresented litigant is a party to try to ensure that the unrepresented litigant understands and agrees with the terms of the stipulation, and understands alternatives to settlement, including the right to a trial. The Best Practices are designed to assist the Housing Court judge in explaining the process in stipulations and other proceedings and to help ensure that the unrepresented litigant has the opportunity to be heard. These Best Practices are not a script that would limit the sound discretion of the judge. It is understood that there are concerns that limited resources may pose difficulties in implementing the Best Practices, They are intended to be implemented within the discretion of each individual judge and to the extent possible given the limits of existing resources. Accordingly, the failure of a judge to comply with each specific in the suggested Best Practices shall not constitute independent grounds for the filing of an ethics complaint against that judge, whose actions remain subject to review pursuant to the canons and case determinations of the highest court in judge’s state.
BEST PRACTICES FOR JUDGES IN THE SETTLEMENT AND TRIAL OF CASES INVOLVING UNREPRESENTED LITIGANTS IN HOUSING COURT
- BEST PRACTICES FOR HOUSING COURT JUDGES FOR ALLOCUTION OF STIPULATIONS OF SETTLEMENT INVOLVING UNREPRESENTED LITIGANTS
These Best Practices are recommended to provide guidelines to assist Judges in reviewing stipulations that are entered into where at least one of the parties is unrepresented. The Best Practices recommend that the Judge review all stipulations to which an unrepresented litigant is a party to try to ensure that the unrepresented litigant understands and agrees with the terms of the stipulation, and understands the alternatives to settlement, including a right to trial. The Best Practices also recommend that prior to approval of a stipulation to which an unrepresented litigant is a party, the Judge should ascertain whether the unrepresented litigant’s claims or defenses are adequately addressed. These Best Practices are not intended to be mandated detailed scripts or to limit judicial discretion to adapt allocutions to particular cases and litigants. Instead, they are intended to provide Judges with useful guidelines for conducting allocutions.
- General Procedures
- Explain the Purpose of the Court Appearance:
At the beginning of every allocution, the Judge should explain the purpose of the appearance before the Judge. The Judge may explain that:
- the Judge will review the proposed stipulation of settlement to try to make sure that the parties understand and voluntarily agree to its terms;
- a settlement is a voluntary agreement to resolve the case and, therefore, a party is not required to agree to settlement terms requested by the other party;
- if either party does not wish to agree to the terms of the settlement, the party has a right to trial at which a Judge (or a jury, if the parties have a right to a jury trial) will decide the parties’ claims and defenses.
- Explain the Process:
- At the beginning of every allocution, the Judge should also explain that the Judge will hear first from the petitioner (or, if the petitioner is represented, the lawyer for the petitioner), because the usual practice is to hear first from the party who brought the case, and the Judge will then hear from the respondent. The Judge should further explain that each party will have the opportunity to bring to the Judge’s attention any problems with the stipulation or any claims, defenses or other issues that the party wishes to address, and that each party will also have the opportunity to ask questions.
- If the other side is represented by an attorney, the Judge should explain the adversarial nature of the proceeding. In particular, the Judge should explain that the attorney for the opposing party does not work for the Court and is responsible for representing the interests of the party that the attorney represents, not the interests of the unrepresented litigant. The Judge should explain that the lawyer for the other side may not advise the unrepresented litigant, other than to suggest that the unrepresented litigant secure independent counsel. The Judge should also explain that the unrepresented litigant is not required to agree to the terms suggested by the lawyer for the other side.
- Use Plain Language:
The Judge should conduct the allocution in plain language and explain, in plain language, the meaning of the terms that are included in the stipulation.
- Invite Narrative:
In order to ascertain whether the unrepresented litigant understands and agrees to the terms of the stipulation, and whether the claims or defenses of the unrepresented litigant are adequately addressed, the Judge should not merely ask questions that call for a yes or no answer. Rather, the Judge should ask open-ended questions and invite the unrepresented litigant to speak in narrative form. The Judge should ask the unrepresented litigant to explain the substance of the stipulation in her/his own words.
- Provide a Reasonable Opportunity to Obtain Counsel:
At the first court appearance in the proceeding, the Judge should confirm that the unrepresented litigant understands the right to seek to retain an attorney. The Judge should insure that the unrepresented litigant understands her/his right to request an adjournment to seek an attorney and, if an adjournment is requested for this purpose, should provide the litigant with a list of free legal services, if needed.
If a litigant proceeds without counsel and it appears at any point during an allocution that the litigant wishes to obtain counsel, the court should give the litigant an opportunity to do so if the court appearance is the first in the case or if the litigant has not previously requested an adjournment; otherwise, the Judge should determine whether the request is reasonable, taking into account the number of prior appearances, the complexity and/or seriousness of the claims or defenses, and any prior requests for adjournments to obtain counsel.
- Address Language Barriers:
The Judge should be attentive to language barriers experienced by unrepresented litigants and should provide qualified interpreters for unrepresented litigants who are not fully fluent in English or who are hearing impaired.
- Address Mental Incapacity:
If the Judge has reason to believe that the unrepresented litigant may be suffering from a mental impairment, the Judge should take appropriate steps to determine whether such an impairment exists and, if so, to obtain appropriate assistance for the litigant. The Judge should not allocute a stipulation until the appropriate assistance is obtained.
- Maintain Courtroom Decorum:
The Judge should maintain courtroom decorum, taking account of the effect it will have on everyone in the courtroom, including unrepresented litigants. The Judge should ensure that proceedings are conducted in a manner that is respectful of all participants, including unrepresented litigants.
- Explain the Alternatives:
The Judge should insure that the unrepresented litigant understands the alternatives to signing a particular agreement suggested by the opposing party and the alternatives to signing any agreement, (i.e., the unrepresented litigant understands that (s)he is not required to agree to the term(s) proposed by the opposing party, and that (s)he has a right to trial if (s)he does not wish to sign an agreement).
- Allocuting the Particular Provisions of the Stipulation
- Ascertain Whether the Unrepresented Litigant Understands and Agrees to the Stipulation:
- In determining whether the unrepresented litigant understands and agrees to the terms of the stipulation, the Judge should not merely ask a general question to this effect, but should ascertain whether the litigant understands her/his specific obligations under the stipulation, as well as the consequences of failure to meet such obligations.
.Another way to inquire as to the unrepresented litigant’s understanding of the stipulation is for the Judge to summarize the unrepresented litigant’s specific obligations under the stipulation and to ask the litigant whether s/he understands that this is what the stipulation provides for. If this approach is used, the Judge should still ask open-ended questions in order to determine whether the unrepresented litigant understands and agrees to the terms of the stipulation.
- Whatever approach is used, the Judge should explain in plain language the meaning and effect of legal terms in the stipulation, including enforcement remedies such as the judgment and warrant, and other provisions that may have a significant impact on substantive rights, such as waiver of claims or defenses and provisions involving attorney’s fees.
- In order to determine whether the stipulation is voluntary, the Judge should ask whether the unrepresented litigant is agreeing to the stipulation of her/his own free will, and/or whether anyone has forced or pressured the unrepresented litigant to agree to the stipulation.
- In order to determine whether an agreement is understood, the Judge should also undertake specific questioning on issues that commonly arise, such as the amount of rent owed or the deadlines for payment.
- Ascertain Whether the Unrepresented Litigant’s Claims or Defenses Have Been Adequately Addressed by the Stipulation:
- The Judge should ask an open-ended question, calling for a brief narrative, to ascertain whether the unrepresented litigant has any claims or defenses that have not been addressed by the stipulation, or any questions about the stipulation or other matters relevant to the case.
- In all cases, prior to “so ordering” a stipulation, the Judge should determine whether a hazardous violation exists at the premises; if such violation exists, the Court should require that the stipulation provide for correction of the violation and for an enforcement remedy in the event of non-compliance.
- BEST PRACTICES FOR HOUSING COURT JUDGES FOR MOTIONS AND TRIALS/HEARINGS INVOLVING UNREPRESENTED LITIGANTS
These Best Practices are not intended to be mandated detailed scripts or to limit judicial discretion to adapt practices during motions and trials/hearings to particular cases or litigants. Instead, the Best Practices are intended to provide Judges with useful guidelines.
- General Procedures
- Use plain English and minimize the use of complex legal terms in written materials, when conducting court proceedings, and when explaining court procedures and the other matters described below.
- Be attentive to language barriers experienced by unrepresented litigants. Judges should take the necessary steps to provide qualified interpreters to unrepresented litigants who are not fully fluent in English or who are hearing impaired.
- Where possible, give all instructions and explanations to unrepresented litigants in writing as well as orally, as oral instructions may not be remembered when the litigant leaves the courtroom.
- Verify that the party is not an attorney and that the party understands that s/he has a right to be represented by an attorney if s/he can retain one. Provide information regarding possible attorney representation by Legal Services, Legal Aid or other pro bono representation to litigants who cannot afford an attorney.
- Determine whether the unrepresented litigant is opting to proceed without an attorney because s/he chooses to proceed unrepresented or because s/he has not been able to retain counsel from Legal Services, Legal Aid or other pro bono entities. Explain the risks and difficulty of self-representation to an unrepresented litigant who is able to retain counsel, but chooses to proceed unrepresented.
- Whenever possible, provide the unrepresented litigant with a copy of the Judge’s written motion rules and procedures sufficiently in advance of argument on a motion so the unrepresented litigant has an opportunity to review them prior to oral argument on the motion
- Ask the unrepresented litigant about her/his understanding of the issue(s) before the Court, particularly if the unrepresented litigant is the movant, rather than relying solely on the represented party’s articulation of the issue(s) and facts.
- Explain the process that will be followed in hearing the motion and confirm that each side understands the process.
- Unless undue prejudice will result that cannot otherwise be mitigated, or unless otherwise prohibited by law, permit the unrepresented litigant to interpose oral, rather than written, opposition to the other side’s motion.
- Explain the elements that the person making the motion must meet in order to get the relief s/he seeks and the elements that the person opposing the motion may have to meet to avoid an order in the movant’s favor, and confirm that each side understands the elements and burdens.
.If possible, the list of elements should be provided in advance in writing in a check-list format given by the Judge or the court attorney, or by directing the unrepresented litigant to a resource center, if available.
- Explain that the Judge may ask each side some questions during argument, but that such questioning should not be interpreted to indicate that the Judge agrees with either party.
- Questioning by the Judge during argument should be directed at obtaining information from each side necessary for the Judge to decide the motion and should be done in a way that does not create an appearance of partiality or of advocacy for one side.
- Whenever possible, the motion should be decided and an order prepared immediately upon the conclusion of the motion so that the order can be served on the parties while they are still in Court and its terms explained to the unrepresented litigant, including what, if anything, the order requires her/him to do, when, the consequences of not doing those things, and what the unrepresented litigant may be able to do if s/he cannot comply with Court’s order.
- Prior to Trials/Hearings
- Inquire whether the unrepresented litigant understands the issues that will be involved at the trial/hearing and what s/he will have to demonstrate in order for the landlord to get a judgment or for the tenant to avoid a judgment.
- Provide the unrepresented litigant with trial preparation materials prepared and/or distributed by the Court or posted on its website or refer the unrepresented litigant to a resource center, if available.
- Inquire whether the unrepresented litigant has the evidence s/he will need for the trial/hearing and, if not, explain to her/him how to obtain such evidence. If production of evidence requires a judicial subpoena, refer the unrepresented litigant to the court attorney for assistance in having the subpoena issued and for an explanation regarding the process for service of the subpoena and how documents will be produced pursuant to the subpoena.
- Unless undue prejudice to the other side will result that cannot otherwise be mitigated, adjourn the trial/hearing to a date sufficient for the unrepresented litigant to obtain necessary evidence and witnesses, and to review trial preparation materials.
- If possible, provide the unrepresented litigant with a copy of the written trial/hearing rules and procedures of the Judge to whom the case will be referred for trial/hearing.
- Trials and Hearings
- Inquire regarding the matters set forth above at C, 3-5, and take appropriate action unless undue prejudice to the other side will result that cannot otherwise be mitigated.
- Explain the process that will be followed in the trial/hearing and verify that each side understands the process. If possible, the list of elements should be provided in advance in writing in a check-list format given by the Judge or the court attorney, or by directing litigants to a resource center, if available.
- Explain the elements of the case and verify that each side understands the elements. Elements that have been stipulated to or not raised in a pleading (where required to be so raised) may be omitted.
- Explain that the party bringing the case has the burden to present evidence in support of the relief s/he seeks and verify that the parties understand the burdens.
- Explain that the Judge may ask each side some questions during the trial/hearing, but that such questioning should not be interpreted as indicating that the Judge agrees with either party.
- The Judge should encourage the parties to conduct the trial/hearing in as informal a manner as possible to facilitate the unrepresented’s ability to participate fully in the proceeding. The Judge should follow the rules of evidence that go to reliability, but use discretion and overrule objections on technical matters, such as establishing a foundation for introducing documents and exhibits and the form of questions or testimony. However, the Judge should explain that some evidence may be given greater weight and that evidence that is not based on direct personal knowledge or is in some other manner determined to be unreliable may be given lesser or no weight.
If evidentiary objections are not waived:
- Explain the kinds of evidence that may be presented and the procedure for admitting exhibits and inquire whether the parties understand the kinds of evidence that can be admitted.
- Explain the limits on the kind of evidence that can be considered and inquire whether the parties understand the limits.
- Require that the objector provide the unrepresented litigant with sufficient information regarding the grounds of her/his objections so that the unrepresented litigant can cure the defect, if possible.
- Explain the foundational facts that must be established by the unrepresented litigant in order to make her/his evidence admissible.
- Ask questions of the unrepresented litigant or her/his witness to determine whether the evidentiary defect can be cured.
- Explain the reason for any evidentiary ruling.
- Take measures to avoid undue prejudice to the unrepresented litigant from otherwise inadmissible evidence regarding the essential elements of the case.
- Allow the unrepresented litigant to testify in narrative and limit as much as possible evidentiary objections during the narrative unless undue prejudice to the rights of the other party would result. Under FRE 611(a), adopted in many state jurisdictions, narrative testimony is permitted as a means of making “the presentation effective for the ascertainment of the truth.”
- Questioning by the Judge during the trial/hearing should be directed at obtaining information from each side necessary for the Judge to decide the issue(s) raised at the trial/hearing and should be done in a way that does not create an appearance of partiality or of advocacy for one side. Asking an unrepresented litigant what s/he wants to tell the court about the landlord’s claims is generally inadequate to elicit sufficient information. Accordingly, it may be necessary for the Judge to ask open-ended questions regarding specific elements of the landlord’s claims or the unrepresented tenant’s defenses or counterclaims to assist the unrepresented litigant in articulating the elements of her/his claims, defenses or counterclaims.
- Whenever possible, the trial/hearing should be decided and a judgment/decision prepared immediately upon the conclusion of the trial/hearing so that the judgment/decision can be served on the parties while they are still in Court and its terms explained to the unrepresented litigant, including what, if anything, the judgment/decision requires her/him to do and when, the consequences of not doing those things, and what the unrepresented litigant may be able to do if s/he cannot comply with the Court’s judgment.