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.

 

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More Courts Reject Eleventh-Hour Attempts To Avoid Foreclosure Based On An Alleged Lack Of Standing

by:  Peter J. Gallagher

 Two more Appellate Division panels have refused to allow defendant's in foreclosure lawsuits to raise standing as an eleventh-hour defense.  As we previously reported — Changing Tide in Forclosure Litigation? Courts Taking Closer Look When Defendants Assert Lack Of Standing At Last Minute — there is now a clear trend against allowing defendants to stay silent in the face of a foreclosure lawsuit only to appear at the last minute, usually on the eve of a sheriff's sale, and seek to vacate final judgment based on an alleged lack of standing to foreclose.  Two recent Appellate Division cases continue to bring this point home. 

In IndyMac Bank FSB v. DeCastro, a residential borrower moved to vacate final judgment and dismiss the complaint 15 months after it was entered, arguing that he was not served with the complaint.  The motion was denied.  Defendant filed a second motion to vacate, arguing, for the first time, that the bank lacked standing to foreclose because it was not assigned the mortgage until after the complaint was filed.  This motion was denied as untimely and defendant appealed.  In an opinion, dated March 13, 2013, the Appellate Division affirmed.  In its decision, among other things, the Appellate Division rejected defendant's standing argument, noting: "[W]e have now made clear that lack of standing is not a meritorious defense to a foreclosure complaint."  Moreover, the Appellate Division held that defendant's standing argument was meritless "particularly given defendant's unexcused, years-long delay in asserting that defense or any other claim."  In arriving at this decision, the Appellate Division relied on many of the cases discussed in our prior post. 

Similarly, in WellsFargo Bank, N.A. v. Lopez, a different Appellate Division panel rejected another residential home owner's last-minute attempt to raise standing as a defense to the foreclosure complaint.  The facts in that case were a bit more egregious because the borrower contributed to the four-year delay between the entry of default and the filing of his motion to vacate by filing numerous bankruptcy petitions and seeking a stay to attempt to short sell the property.  Nonetheless, the Appellate Division affirmed the trial court's denial of the motion to vacate holding, among other things, that the lack of standing, even if true, was not a meritorious defense to a foreclosure complaint, particularly in the post-judgment context.  Again, the Appellate Division relied primarily on the cases included in our prior post.

Changing Tide In Foreclosure Litigation? Courts Taking Closer Look When Defendants Assert Lack Of Standing At Last Minute

by:  Peter J. Gallagher

In a series of recent decisions, New Jersey courts appear to be taking a stance against defendants raising, as a last-minute defense, that a party lacks standing to foreclose.  This is good news for lenders and their assignees, who, prior to these decisions, faced the prospect of proceeding to final judgment of foreclosure, only to have a party appear at the last minute, allege a lack of standing to foreclose, and send the process back to square one. 

The changing body of case law began with the Appellate Division’s opinion in Deutsche Bank Trust Company Americas v. Angeles, 428 N.J. Super. 315 (App. Div. 2013).  In that case, defendant failed to defend the action or assert a standing issue until two years after default judgment was entered and more than three years after the complaint was filed.  Id. at 316.  Interestingly, the Appellate Division acknowledged that defendant raised a valid concern about plaintiff’s standing to foreclose, but nonetheless refused to vacate final judgment.  In explaining its decision, the Appellate Division noted:

In foreclosure matters, equity must be applied to plaintiffs as well as defendants. Defendant did not raise the issue of standing until he had the advantage of many years of delay. Some delay stemmed from the New Jersey foreclosure system, other delay was afforded him through the equitable powers of the court, and additional delay resulted from plaintiff's attempt to amicably resolve the matter. Defendant at no time denied his responsibility for the debt incurred nor can he reasonably argue that [Plaintiff] is not the party legitimately in possession of the property. Rather, when all hope of further delay expired, after his home was sold and he was evicted, he made a last-ditch effort to relitigate the case. The trial court did not abuse its discretion in determining that defendant was not equitably entitled to vacate the judgment.

Id. at 320. 

 

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