“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.

 

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Not A Holder In Due Course? Not Necessarily A Standing Problem

by:  Peter J. Gallagher

By now, all lenders have likely been faced with at least one situation where a borrower alleges that the lender lacked standing to sue on a note because the lender was not the holder of the note. While New Jersey courts have largely eliminated this defense, at least in the post-judgment context (see here), a recent decision from the Appellate Division reminds us that a lender can have standing to sue even when it is not a holder in due course.

In Lynx Asset Services, LLC v. Simon Zarour, National City Bank loaned defendant $190,000, and defendant executed a mortgage as security for the note. Thereafter, National City merged with PNC Bank. Sometime later, PNC Bank delivered the original note to Lynx Asset Services, LLC and issued an assignment of the note and mortgage, but did not indorse the assignment. Defendant eventually defaulted on the note and Lynx sued. Defendant admitted that he signed the note and mortgage and that he had stopped paying on the note. He nonetheless argued that Lynx lacked standing to sue because it did not have a signed assignment. The trial court rejected this claim, and the Appellate Division affirmed, holding that, although Lynx was not a holder in due course, it nonetheless had standing to sue on the note because it was a non-holder with the rights of a holder.

 

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