On a warm summer’s evenin’, on a train bound for nowhere . . . is a dispute over insuring a stranger’s life

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Gambling

I know it is a little obvious, but I couldn't write a post about gambling without using lyrics from "The Gambler." Fortunately, the case this post discusses — Sun Life Assurance Co. of Canada v. U.S. Bank National Association — is anything but obvious. Sun Life involved gambling on another person's life but not in a Deer Hunter, Russian roulette kind of way. In Sun Life, the U.S. Court of Appeals for the Seventh Circuit addressed the enforceability of an insurance policy that insured a stranger's life.

In Sun Life, Judge Posner began his decision by discussing the common law principle that "forbids a person to own an insurance policy that insures someone else's life unless the policy owner has an insurable interest in that life." A wife can have an insurable interest in her husband's or children's lives, a creditor can have an insurable interest in a debtor's life, but "you cannot own an insurance policy on the life of a stranger who you happen to know is in poor health and likely to die soon." The reason is that, by doing so, you are essentially gambling on another person's life, and gambling contracts are generally unenforceable as a matter of public policy. 

Continue reading “On a warm summer’s evenin’, on a train bound for nowhere . . . is a dispute over insuring a stranger’s life”

Free Speech In Condos and Co-Ops: Round III Goes To The Resident

by:  Peter J. Gallagher (@pjsgallagher)       

It is not quite Ali-Frazier or even Gatti-Ward, but the New Jersey Supreme Court just delivered its third opinion in the past seven years regarding the free speech rights of residents in common interest communities (condos and co-ops). In Dublirer v. 2000 Linwood Avenue, Owners, Inc., the Court ruled that a resident who was a regular critic of the co-op's board of directors had the right to distribute leaflets under apartment doors throughout the building. (We previously wrote about the Appellate Division decision that the Supreme Court reviewed on appeal – look here.) The Court held that the co-op's "House Rule" purportedly banning all soliciting and distributing of written materials, including the resident's leaflets, was an unconstitutional abridgment of his free speech rights. In doing so, the Court clarified the standard that should generally be applied when evaluating similar issues — which arise frequently in common-interest communities — and described the types of restrictions that could be adopted without infringing on the free speech rights of residents.

Continue reading “Free Speech In Condos and Co-Ops: Round III Goes To The Resident”

When, If Ever, Can Judges Be Social Media “Friends” With Attorneys?

by: Peter J. Gallagher (@pjsgallagher)

Please check out a recent article I wrote for law360.com on whether judges can be “friends” with attorneys on Facebook or other social media without running afoul of the relevant ethics rules. Here is the opening paragraph:

“Social media has become a part of most lawyers’ personal and professional lives. The same is true for many judges. However, it is still not clear when, if at all, it is appropriate for a judge to be “friends” with a lawyer on social media, particularly when that lawyer appears regularly before the judge. While it is certainly true that, as some courts and ethics committees have observed, social media is fraught with peril for judges, no uniform rule has emerged on the issue. Some jurisdictions prohibit judges from being ‘friends’ with any lawyer who appears regularly before them, while others donot prohibit the practice unless the social media ‘friendship’ also implicates one of the canons of the Code of Judicial Conduct. The latter seems to be the better approach, but it has not been universally adopted and it is not clear that it ever will be.”

Check out the rest of the article here.

“Judges Think I Am Awesome!” Third Circuit Approves Use Of Judicial Endorsement on Lawyer’s Website

by: Peter J. Gallagher

In an interesting First Amendment decision issued yesterday, he U.S. Court of Appeals for the Third Circuit struck down a New Jersey attorney-advertising guideline that banned attorneys from including judicial quotations in their advertising unless the full judicial opinions appeared in the advertisement.

In Dwyer v. Cappell, an attorney, Andrew Dwyer,  included several favorable quotations from judicial opinions on his firm’s webpage, including one where a judge, in the context of a fee application, noted that the attorney was “a fierce, if sometimes not disinterested advocate for his clients,” who had “molded the case to the point where it could be successfully resolved.” The judge who wrote that opinion asked Dwyer to remove the quotation from the website. When Dwyer refused, the judge contacted the Committee on Attorney Advertising.

After meeting with Dwyer and receiving submissions from him on the issue, the Committee proposed an attorney-advertising guideline, and solicited public comment on it, that would have banned attorneys from including quotations “from a judge or court opinion (oral or written) regarding the attorney[s’] abilities or legal services.”  Dwyer submitted a comment objecting to the proposed objection as an unconstitutional ban on speech. Nonetheless, three years later, the New Jersey Supreme Court approved an amended version of the guideline that banned attorneys from using quotations from judicial opinions in their advertisements, but allowed them to advertise using the full text of judicial opinions in which those quotations appeared. The comments to the proposed rule explained that it was designed to avoid confusing the public into believing that a judge was endorsing a specific attorney, something that is prohibited under the Rules of Professional Conduct.

 

Continue reading ““Judges Think I Am Awesome!” Third Circuit Approves Use Of Judicial Endorsement on Lawyer’s Website”

“Signs, Signs, Everywhere Signs:” New Jersey Supreme Court Holds That Homeowners’ Associations Cannot Ban Political Signs

by:  Peter J. Gallagher 

It is an issue we have reported on before (here), but yesterday the New Jersey Supreme Court ruled that homeowners’ associations may not entirely ban homeowners from displaying political signs.  In Mazdabrook Commons Homeowners' Association v. Khan, the New Jersey Supreme Court held that homeowners' associations are allowed to impose reasonable content-neutral rules (e.g., regulating the size, number, and location) of signs, but cannot ban them outright and cannot, even under the guise of reasonable content-neutral rules, “distinguish among different types of political signs.”  This decision is obviously important to community associations, but also has a broader impact because it reiterates the New Jersey Supreme Court’s belief that individual rights identified in the New Jersey Constitution are protected, not against abridgment by the government, but also by certain conduct from private entities. 

 Jude Wefing, sitting by assignment from the Appellate Division, was the lone dissenter.  She criticized the majority for both reaching the constitutional issue in the first place, and for its decision on that issue.  In connection with the former, Judge Wefing noted that the dispute between the parties centered primarily on fines related to the homeowners’ growing of a “rose vine” over the homeowners’ association’s objections about the size and placement of the “vine.”  (In a footnote, Judge Wefing noted that she referred to the offending plant as a “rose vine” only because the majority did so, even though “[a] rose is a shrub, not a vine,” and thus “the plant in question must have been a climbing rose.”)  As a result, the record regarding the issue with the political signs was too sparse, in Judge Wefing’s opinion, to justify reaching the broader constitutional issue. 

When it came to the substantive issue, Judge Wefing parted with her colleagues on a more fundamental level:

My colleagues rightly note our nation’s and our state’s commitment to a free and vigorous debate of public questions. I have no quarrel with that commitment; I embrace it. In my judgment, however, individuals are equally entitled to seek shelter from political debate and division. If a group of individuals wish to live in a common-interest community that precludes the posting of signs, political or otherwise, and have agreed freely to do so, and there is no showing of overreaching or coercion, I would adopt the principles enunciated in [the] dissent in the Appellate Division, that these mutually-agreed upon covenants ran with the land, were reasonable, and were enforceable.

Based on these principles, Judge Wefing concluded: “Some may question the choice to avoid political controversy; I simply recognize the right to make that choice.”