A Practice Tip: When a Judge is Rendering an Oral Opinion, Don’t Interrupt and Call Him/Her “Corrupt”

Bascom Corporation v. Paterson Coalition for Housing, Inc., 2021 N.J. Super. Unpub. LEXIS 1846 (App. Div. Aug. 24, 2021). Periodically, our appellate courts offer lessons in “what not to do” or “how not to behave.” The Appellate Division did just that in this case.

The decision itself, a per curiam ruling by a panel consisting of Judges Fuentes and Firko, resulted from a foreclosure action. A final judgment of foreclosure was entered against defendant Paterson Coalition for Housing, Inc. (“PCH”). More than nine months after the entry of that judgment, and six months after a sheriff’s sale of the property at issue, PCH moved to vacate the final judgment of foreclosure. Meanwhile, the purchaser at the sheriff’s sale had “expended substantial funds to prepare the property for redevelopment.” The Chancery Division denied PCH’s motion to vacate. On appeal, the Appellate Division affirmed.

So far, a fairly ordinary ruling. But the final pages took a different turn, as the panel stated:

“We cannot conclude our analysis, however, without addressing an important and disturbing issue, the obstreperous conduct and disrespectful
demeanor displayed by PCH’s trial counsel to Judge Chiocca. To be clear, we are not referring to PCH’s appellate counsel. The record of the oral argument shows PCH’s trial attorney repeatedly interrupted Judge Chiocca as he was delivering his oral decision from the bench and intentionally ignored the many requests by both the Sheriff’s Officer assigned to the courtroom and by the Judge himself to stop interrupting his presentation of his ruling. The attorney finally stopped only when the Judge admonished him that ‘if you interrupt my rendering of the decision, I’m going to ask you to please leave.'”

The panel proceeded to quote the hearing transcript at length. Among other things, that transcript reflected that PCH’s trial level counsel exclaimed “Unbelievable. Unbelievable” as the judge was rendering his ruling. When the Sheriff’s officer asked him to remain quiet, the attorney asserted that the officer had threatened him. He then told the judge that the judge’s opinion was ‘extrajudicial” and that he had “trouble controlling [him]self when [he saw] the law being distorted to benefit parties that did wrong.” After more contentious remarks, counsel said “My point is you’re corrupt, that’s my point.” Not content with that, the attorney threatened one of the other attorneys in the case, saying “Whoa. Whoa. I’m coming after you, too, counsel.”

Citing potential violations of Rules of Professional Conduct 3.5 (c) (“A lawyer shall not . . . engage in conduct intended to disrupt a tribunal”) and 8.4(d) (“it is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice”), the panel referred the matter to the Office of Attorney Ethics for an investigation. The panel did so based on its obligation under Canon 3.15(b) of the Code of Judicial Conduct, which states that “[a] judge who receives reliable information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority.”

Besides the obligation imposed by the Code of Judicial Conduct, the panel explained that it saw the need to protect trial level judges, noting that “unlike the federal judges who serve in the Circuit Courts of Appeal, all of us in the appellate division are former trial judges. We are keenly aware of the pressures and inherent difficulties involved in the management of a courtroom. That is why we must support our colleagues at the trial level when events like the one we have described here undermine their dignity and disrupt the orderly administration of our trial courts.”

It is often difficult to listen to an oral opinion that counsel believes is wrong, even very wrong, remain silent, and then say (as is customary at the end of any court proceeding, win or lose) “Thank you, Your Honor.” This opinion reminds us of the importance of doing so.