January 31, 2011

TRAINING FOR TOMORROW: Doing Good to Train Well

Training new lawyers in interviewing, counseling, and negotiation is a costly process and in many contexts, there are few opportunities for new lawyers to work with clients. While we often think of pro bono programs as offering younger lawyers a chance to develop professional habits of public service, these programs can also help meet a firm's or organization's core training objectives: they supply relatively rare opportunities for lawyers to develop the complex skills needed to work with clients.

In 2008 there were approximately 10,000 mortgage foreclosure complaints filed in the city of Philadelphia. This number was indicative of the nationwide epidemic facing Americans everywhere. We are living in extraordinary times requiring extraordinary measures, and in 2008, Philadelphia's First Judicial District took measures to address this crisis: the Philadelphia Mortgage Foreclosure Diversion Program.

This program is centered on informed, professional negotiation. It rests on the theory that if you bring homeowners and lenders face to face, and give the homeowners professional representation to level the negotiating playing field, deals can be struck and houses saved. The action takes place each Thursday in courtroom 676 City Hall where court regulations require all cases involving residential owner-occupied properties to be noticed for a conciliation conference before the property can be put up for sheriff's sale. The foreclosure complaint served on the homeowner includes a case management order scheduling a conciliation conference and instructions directing the homeowner to contact the Save Your Home Philly Hotline, which sets up an appointment with a local housing counselor. The housing counselor assists the homeowner in gathering necessary financial information that is given to the attorney for the plaintiff. Both parties then attend the conciliation conference on a designated Thursday where they attempt to negotiate a resolution.

It is here that the volunteer lawyers--and real training opportunities for newer lawyers--comes in. On the spot, volunteer lawyers are paired with homeowners and housing counselors and told who lender's counsel is. The volunteer will work with the client and housing counselor to understand the facts, come to a negotiation strategy, and then conduct the negotiation with lender's counsel that same afternoon.

Inexperienced lawyers do not enter these negotiation opportunities cold. Rather, they are first trained in the basic concepts of mortgage foreclosure law, negotiation, and the specifics of the Diversion Program. The Philadelphia Bar Association's pro bono arm, Philadelphia Volunteers for the Indigent Program (VIP), requires 3.5 hours of training before an attorney may represent homeowners in the Diversion Program. This free training is conducted by a VIP staff attorney, a volunteer attorney, and a housing counselor and, once the lawyer assists clients at least twice after the training, he or she receives 3.5 hours of free Continuing Legal Education credits.

The program also helps newer lawyers develop their skills through a robust mentoring program. New volunteers can choose to shadow an experienced volunteer during their first visits to court and, in addition, there are always both VIP staff and a legal services lawyer in the courtroom to offer assistance to volunteers as needed. The housing counselors also have a wealth of knowledge about homeowners' circumstances and the various programs designed to help them and work with the volunteer attorney to assist homeowners. This information becomes part of the substance of volunteer's negotiation strategy.

At the conclusion of the negotiation conference, the volunteer lawyer and plaintiff's lawyer will report the outcome of their negotiation and a court order will be entered to reflect that outcome. The range of possible solutions, and therefore the breadth of negotiating possibilities, is enormous. Resolutions can be a lender forbearance, a stay of the sale, a settlement of the entire action, a loan modification, a loan reinstatement, payment plans, and in some instances, a "graceful exit." The latter refers to those instances where the homeowner vacates the property voluntarily, usually in exchange for help from the lender with resettlement expenses or a delay of the sheriff's sale.

Often the case will not be resolved at the first conference and, while it is not required, many volunteer lawyers will follow the case through several conferences to a resolution. This provides additional opportunities to develop client-centered professional skills and gives the volunteer lawyer an even better sense of the professional service commitments of the profession. Since the inception of the program, VIP volunteers have provided over $1.5 million in free legal services to distressed homeowners and their families.

Resolutions, when finally reached, are not resolutions of hypothetical, simulated negotiation problems; rather, these resolutions follow negotiations involving real people threatened with loss of their homes. There is very little available to most younger lawyers that will bring home the sense of professional responsibility and professionalism that representing clients in these cases provides.

The Diversion Program has been touted as the first effort by bench and bar in the country to do something in the wake of the financial crisis and has become the national model contacted daily by others. Substantively, the program is without a doubt a success in saving many homeowners from losing their housing. But its success reaches beyond the numbers of homes saved. As a model for training lawyers in working with live clients, the program has many of the elements of clinical legal education, an experience unavailable to young lawyers once they have graduated from law school. Its legacy will, of course, be one of reduced homelessness, protected families, and saved neighborhoods. But it will also be one of producing a generation of better trained younger lawyers who have early on developed a taste for the power of pro bono work to change the quality of peoples' lives, including their own.