P.M. v. N.P.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1947-12T2
P.M.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
June 17, 2015
v.
APPELLATE DIVISION
N.P.,
Defendant-Respondent.
____________________________________________
Argued March 26, 2014 – Decided June 17, 2015
Before Judges Fuentes, Simonelli and
Fasciale.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth
County, Docket No. FM-13-0759-06.
Edward Fradkin argued the cause for
appellant (Law Office of Edward Fradkin,
LLC, attorneys; Mr. Fradkin, on the briefs).
Amy Sara Cores argued the cause for
respondent (Cores & Associates, LLC,
attorneys; Ms. Cores, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
In this appeal, plaintiff-wife argues the Family Part Judge
who decided a number of post-judgment motions erred in denying
her application to recuse himself. Plaintiff claims the judge's
impartiality was tainted when his law clerk engaged in
employment discussions with and ultimately accepted an offer of
employment from the attorney who represents defendant-husband.
Plaintiff claims defendant's counsel discussed employment
opportunities with the judge's law clerk during the time in
which the judge was managing this contentious post-divorce
motion practice.
Plaintiff also alleges the law clerk is related to the
trial judge in some undisclosed degree of consanguinity, which
the judge refused to clarify despite plaintiff's counsel's
repeated requests. Despite the lack of specific details
concerning the law clerk's relationship to the judge, plaintiff
claims the law clerk accepted defense counsel's offer of
employment and began working with defense counsel at the
conclusion of her clerkship. Plaintiff points out that the
judge also continued to preside over this case and decide the
parties' outstanding post-judgment motions after the law clerk
was employed by defense counsel. Plaintiff argues the combined
effect of all these events created a conflict of interest or, at
the very least, an appearance of impropriety requiring the
judge's recusal.
Under these circumstances, plaintiff argues the trial judge
erred in denying her motion to vacate orders the judge entered
during the time his law clerk was engaged in employment
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discussions with defense counsel and after the law clerk began
working for defense counsel's firm. Alternatively, plaintiff
seeks a remand for the judge to develop a complete record
addressing the ethical issues raised and to make specific
factual findings and conclusions of law explaining the basis for
denying plaintiff's motion seeking his recusal from this case.
After carefully reviewing the record before us, we are
compelled to vacate the order denying plaintiff's motion seeking
the recusal of the trial judge and remand this matter for the
trial judge to make specific findings: (1) describing the
judge's specific familial relationship to his former law clerk;
(2) determining with particularity the timeframe of defense
counsel's employment discussions with the judge's law clerk; and
(3) stating the specific time defense counsel made an offer of
employment to the judge's law clerk. Building upon these
findings, the judge must then determine the extent to which the
law clerk's employment association with defense counsel created
an appearance of impropriety requiring his recusal under the
standards adopted by the Supreme Court in In re Reddin, 221 N.J.
221 (2015), DeNike v. Cupo, 196 N.J. 502 (2008), and Rule 1:12-2.
I.
The parties married in 1999, had three children, and
divorced in 2006. They have engaged in extensive and
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contentious post-divorce motion practice, resulting in numerous
court hearings followed by orders intended to dispose of the
issues raised by the parties. Both parties have also been
tenacious in their efforts. This is the third appeal this court
has decided concerning orders entered by the Family Part
adjudicating post-judgment motions.
In the first appeal, defendant challenged the decision of
the Family Part denying his motion to reduce his alimony and
child support obligations. P.P. v. N.P., No. A-1174-09 (App.
Div. Nov. 22, 2010) (slip op. at 1-2). We affirmed the Family
Part's decision to deny a reduction of defendant's support
obligation "for lack of sufficient and competent documentation
to establish a prima facie basis for a support modification.
However, with respect to the . . . enforcement order, we
remand[ed] for an ability-to-pay hearing." Id. at 2.
In the second appeal, plaintiff challenged an order
"restraining her from relocating within the state," and a
subsequent order "establishing parenting time." P.P. v. N.P.,
No. A-1246-10 (App. Div. Dec. 23, 2011) (slip op. at 1-2). We
affirmed the Family Part, concluding the judge's decision with
respect to the two issues raised by plaintiff was predicated on the
terms of the Property Settlement Agreement (PSA). Id. at 7-8.
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This third appeal relates back to our opinion disposing of
the first appeal, P.P. v. N.P., supra, No. A-1174-09, in which
we directed the trial court to conduct an ability-to-pay hearing
to determine defendant's ability to fulfill his support
obligations. On March 28, 2012, the trial court entered an
order withdrawing "with prejudice" defendant's request for the
ability-to-pay hearing and dismissed all outstanding issues we
directed the trial court to address on remand, "except" for
preserving "either party's right to seek legal fees[.]"
The record shows defense counsel transmitted this form of
order entered by the court as an attachment to a letter dated
March 26, 2012. In this four-page, single-spaced letter,
defense counsel described in detail her client's then financial
status and discussed findings allegedly made by a forensic
accountant concerning defendant's financial status. Defense
counsel also represented to the court that "plaintiff has been
sending police officers to the residence where the children are
residing to effect service. We would ask that this cease as it
is detrimental to the children's welfare."
Without the benefit of a sworn certification or other
competent evidence, defense counsel recounted negative comments
allegedly made by the forensic accountant against plaintiff and
discussed plaintiff's efforts to obtain discovery from
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defendant's fiancée and other third parties who may have had
knowledge of defendant's finances. Defense counsel also noted
her client's wishes to settle the outstanding support issues and
his "multiple efforts to try to resolve this matter." The
letter ended with the following statement:
As both parties have spent an offensive
amount of money on legal fees litigating
this issue, we feel that under the
circumstances one side must back down. We
see no end in sight. We are convinced that
the plaintiff is incapable of settling these
issues. While we believe that we would be
ultimately be [sic] successful in proving
that in 2009 our client did not have the
ability to pay, at this point this does not
justify the continued litigation costs.
Unfortunately, the plaintiff does not agree.
To that end the pending motion which
addresses the various inappropriate
subpoenas issued by the plaintiff is
withdrawn. Again, there is no subpoena
power post-judgment without a pending
hearing. We further submit that the
continued deposition of our client is no
longer proper under the circumstances. Thus
this allegedly emergent issue raised by the
plaintiff's counsel last week is moot.
Defense counsel's letter triggered an immediate response
from plaintiff's counsel. In his letter dated March 30, 2012,
plaintiff's counsel objected to defense counsel's unilateral
decision to communicate to the court and forgo a hearing that
plaintiff's counsel believed was ordered by this court's
decision to remand the issue of arrears to the trial court for a
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hearing. Plaintiff's counsel also objected to defense counsel's
characterization of the status of the forensic accountant's
efforts to ascertain an accurate and complete understanding of
defendant's financial status. Plaintiff's counsel again
indicated that defendant had misrepresented to the court in 2009
his financial ability to meet his support obligations.
Plaintiff's counsel asked the court to go forward with the
ability-to-pay hearing in order to establish the exact amount of
arrears. Counsel also took issue with defense counsel's
statement concerning the legal viability of plaintiff's
subpoenas and her disclosure and alleged mischaracterization of
settlement discussions. Plaintiff's counsel requested the court
to admonish defense counsel for claiming to have the authority
to cancel the hearing and informing third parties not to honor
or respond to plaintiff's subpoenas. Despite plaintiff's
counsel's efforts, the trial judge signed the form of order
submitted by defense counsel.
On April 20, 2012, plaintiff filed a formal motion seeking
to vacate the March 28, 2012 order. In a letter-brief in
support of the motion, plaintiff's counsel argued the order was
"improperly submitted" by defense counsel and "improperly
entered" by the court. Plaintiff's counsel particularly
emphasized that the manner in which defense counsel presented
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this order to the court violated established rules of procedure
codified in Rule 4:42-1, and made substantive representations
without competent evidence to support them.
Plaintiff's counsel also sought the trial judge's
disqualification pursuant to Rule 1:12-1. Counsel noted in his
certification that after he received the order signed by the
judge, he personally attempted to schedule a telephone
conference with the judge and defense counsel "in order to
express my position that the Order was improperly entered and
should be vacated." Plaintiff's counsel represented in his
certification that
[t]he phone conference was scheduled for
April 19, 2012 with Your Honor, but
unfortunately, that was cancelled by the
[c]ourt. At this point I was left with no
other choice but to file this application
due to my reasonable belief that I do not
believe that the plaintiff can receive a
fair and unbiased hearing before Your Honor.
Defendant filed a cross-motion asking the court to restrain
plaintiff from filing future motions seeking the recusal of the
trial judge and seeking sanctions "in the event that the
plaintiff files future recusal motions." Defendant also asked
the court to decide defendant's pending motion seeking an award
of counsel fees incurred in defending plaintiff's first appeal,
and to enter an order "restraining and enjoining counsel for the
plaintiff from sending correspondence to the court in this
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matter except without [sic] prior express permission or as part
of a properly filed pleading."
By order dated July 20, 2012, the trial judge denied
plaintiff's motions seeking: (1) the judge's recusal; (2) to
vacate the March 28, 2012 order; and (3) to compel defendant to
pay counsel fees incurred by plaintiff in the prosecution of the
motion. In the same order, the trial judge denied defendant's
cross-motion seeking to restrain plaintiff's counsel or impose
sanctions. However, the judge granted defendant's motion with
respect to counsel fees and awarded $11,500 as counsel fees
incurred in defending the first appeal. The judge also reserved
making a final determination "as to counsel fee awards for all
counsel fees associated with the discovery leading up to the
subsequent withdraw [sic] of [d]efendant's request for a plenary
hearing[,]" and directed both parties to submit a certification
of services. Finally, the judge determined defendant owed
plaintiff a total of $18,443.51 in unallocated arrears for child
support and alimony, including defendant's obligation "for the
entire month of June." The judge directed the probation
department to update its records accordingly and "adjust for any
payments made since then."
By letter dated August 7, 2012, addressed to the trial
judge, plaintiff's counsel raised what he characterized as "a
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very serious issue about whether pursuant to Rule 1:12-1 and
Canon 4 of the Code of Conduct for Judiciary Employees" the
judge should recuse himself from this case, possibly retroactive
to the previous orders entered in March and July 2012.
Plaintiff's counsel indicated that the judge's law clerk had
accepted a position with defense counsel's law firm.
Plaintiff's counsel sought discovery to ascertain when defense
counsel offered the position to the law clerk and whether the
law clerk "worked on any aspect of this matter" thereafter.
Plaintiff's counsel also claimed there was another basis
that may require the trial judge's recusal from the case:
I have been advised by a fellow lawyer that
Your Honor has a familial relationship with
[the law clerk]. If I have been incorrectly
advised then I apologize. However, if there
is a familial relationship between Your
Honor and [the law clerk] then pursuant to
Rule 1:12-1 and Canon 4 that [sic] Your
Honor should be recused from any matters
involving [defense counsel's] office
regardless of whether [the law clerk] worked
on those files. I ask that Your Honor
advise my office as to whether pursuant to
Directive 17-08 Policy on the Appointment of
Judges' Relatives to Judiciary Position
issued on December 2, 2008 by the Honorable
Glenn A. Grant, a request was made that
permitted you to hire [the law clerk]. For
these reasons as well it is respectfully
submitted that not only should Your Honor be
recused from this case, but that you should
sua sponte vacate the July 20, 2012 Order
that was entered in order to eliminate the
need for an appeal to be filed.
10 A-1947-12T2
Defense counsel responded to plaintiff's letter on August
13, 2012. In response to plaintiff's counsel's allegations
concerning the judge's law clerk, defense counsel stated that
the law clerk did not accept an offer of employment with her
firm until August 1, 2012. Defense counsel thus objected to
plaintiff's counsel's request for "'discovery' on this issue."
Defense counsel accused plaintiff's counsel of trying to
increase the cost of litigation. Defense counsel also
characterized plaintiff's counsel's concerns regarding a
possible conflict of interest involving the judge's law clerk's
employment with her law firm as "nothing more than an attempt to
attack this court directly." The record does not reflect that
the trial judge responded to either attorneys' letters.
On August 28, 2012, plaintiff filed a formal motion seeking
to disqualify the trial judge from continuing to decide matters
in this case. Plaintiff also petitioned the judge to vacate the
July 20, 2012 order under Rule 4:50-1. Plaintiff sought to
compel the trial judge "to provide discovery as to any and all
forms the [judge] filled out prior to hiring his 2011/2012 law
clerk . . . in accordance with Directive 17-08 Policy on the
Appointment of Judges' Relatives to Judiciary Position issued on
December 2, 2008 by the Honorable Glenn A. Grant." Plaintiff
also sought to compel defense counsel "to provide any and all
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information relating to [the law clerk]'s employment with her
firm, including but not limited to the date the offer for
employment was made and any email/written correspondence between
[defense counsel] and [the law clerk] concerning her possible
employment."
In her certification in support of the motion, plaintiff
claimed the judge was required to recuse himself from this case
pursuant to Rule 1:12-1 and Canon 4 of the Code of Judicial
Conduct for Judiciary Employees because during the time the
trial judge decided motions filed by the parties, his law clerk and
defense counsel were discussing the prospect of the clerk working
in defense counsel's firm at the conclusion of her clerkship.
Plaintiff alleged the law clerk had a familial relationship with
the trial judge. Therefore, the law clerk's employment
relationship with defense counsel's firm created an appearance
of impropriety and bias requiring the judge's recusal.
Defense counsel submitted her own certification in
opposition to plaintiff's motion. Paragraphs eight and nine of
defense counsel's certification addressed the issue of the law
clerk's employment:
I provide only the following
information for the purposes of establishing
that the hiring of [the law clerk] was done
in an appropriate and transparent manner.
Prior to interviewing [the law clerk], I
contacted the court and notified the court
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of my intention to do so and offer her a
position. I specifically indicated that the
Presiding Judge of the Family Part should be
consulted with regard to any real or
perceived conflict. This was done due to
the unusual number of cases that were
pending before this court at that time. It
is my understanding that the court did in
fact notify the Presiding Judge of the
situation and follow his guidance with
regard to same.
I should also note that [the law clerk]
interviewed with several other law firms
after being offered a position with my
office.
The trial judge heard oral argument on plaintiff's recusal
motion on November 27, 2012. The following exchange between the
trial judge and plaintiff's counsel addressed plaintiff's
concern regarding the judge's familial relationship to his
former law clerk:
THE JUDGE: Okay. And the information that
you received from your friend was that I'm
related to [the law clerk].
PLAINTIFF'S ATTORNEY: That was the
information I received. And I sent Your
Honor two letters before filing this
application and I received no response back
asking if that were the case. I had heard
that from a number of different people in
the courthouse. So we left, we had no
choice when I had no response to file an
application.
THE JUDGE: Okay. And your, the basis for
you filing the motion is that all of this is
in violation of Guideline B to Canon 4, as
well as the directive of the Honorable Glen
Grant, Directive 17-08.
13 A-1947-12T2
PLAINTIFF'S ATTORNEY: Well, I wouldn't say
that. The directive just dictates - - I
wouldn't say a violation of the directive.
I would say Canon 4 and the case law that's
cited in our brief, some of the Court Rules
as well.
THE JUDGE: Okay. And Canon 4 which you cite
in your brief provides the Guideline B, the
Canon 4 provides that immediate family, and
it's in quotations, shall include all
members and it goes on and on and on and on
and on.
Well, I've read that, I've read that
guideline and [the law clerk] does not fall
within that category as being related to me,
so.
PLAINTIFF'S ATTORNEY: Well it's my - - I
mean if Your Honor is saying she's not a
niece, a child of an aunt or uncle of yours,
a - - it's a big category. Niece - -
THE JUDGE: No, I read the category.
PLAINTIFF'S ATTORNEY: I doubt she's an aunt.
I would assume she's a niece or a cousin and
that's, it was my understanding that would
somewhere fall - - I mean if Your Honor is
saying that she is not a niece or a I guess
a cousin of yours, then it wouldn't fall in
that category.
But I don't know what, if there's some
familial relation, what other, I don't know
any other familial relations that there are.
THE JUDGE: Okay, well I'm saying that I've
read through Canon 4 and she doesn't fall
within that group outlined by Canon 4.
So I don't know what information your
attorney friend has provided to you. But
it's, it appears to be different from the
information I'm telling you right now.
14 A-1947-12T2
PLAINTIFF'S ATTORNEY: All right. Well, and
Your Honor the other thing was as well that,
my understanding [the law clerk] it's our
belief, worked on this case after she was
offered a job from [defense counsel].
THE JUDGE: Worked on it with me? In my - -
PLAINTIFF'S ATTORNEY: Yes, worked on the
recommendations for any recommendations she
had made that she was substantially involved
in this case in making - - and that's the
case law we cited.
THE JUDGE: Right, no, okay.
As this colloquy illustrates, the trial judge did not
provide plaintiff's counsel with a straightforward, clear
statement describing his familial relationship to his former law
clerk. Defense counsel was equally vague in her statements
describing when she first approached the law clerk to discuss a
possible employment relationship. Plaintiff's counsel made his
request for clarification of this timeline in the following
statement:
PLAINTIFF'S ATTORNEY: Your Honor, I'm
looking to find out when [the law clerk] was
offered, if she was offered, when she was
offered the job. What communications there
were between [defense counsel] and [the law
clerk]. And at that point in time, what
work [the law clerk] did [sic] on this case.
You know, it becomes a question of, again,
this is, we know August 1st [2012] is when
[defense counsel] says that's my soon to be
associate. But we don't know when the offer
was made. [Defense counsel] says in her
certification she contacted Your Honor about
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this. So I don't know when that contact
took place. Your Honor would know that.
And that Your Honor, - - I think it's
paragraph 8 of [defense counsel's] reply
certification. ["]Prior to interviewing
her, I contacted the Court and notified my
intentions to do so and offer her a
position.["]
And so, I don't know when this [c]ourt was
contacted. [Defense counsel] doesn't put a
date. I know Your Honor would be aware. So
this is even prior to the job being offered
to her. Was that May [2012]? Was it June
[2012]? What period of time? [Defense
counsel] doesn't tell us.
My client doesn't have a right to have,
doesn't have a right to be really concerned
that this person was who assisting Your
Honor, writing recommendations, reviewing
paperwork, had already been offered or been
discussions, negotiations with [defense
counsel] to get a job.
THE JUDGE: [Addressing plaintiff's
counsel], I think that your, but what you're
looking to do is go on a fishing expedition.
Because the order was written on July 20th
[2012]. According to [defense counsel] that
an offer was given on August 1st [2012].
And so I'm not going to let you conduct a
fishing expedition . . . [.]
At the conclusion of the argument, the trial judge asked
defense counsel to address the Supreme Court's holding in
Comparato v. Schait, 180 N.J. 90 (2004):
THE JUDGE: [Addressing defense counsel] let
me ask you this and you know we could be
here all day and tomorrow listening to the
facts of this case. But I'd really like for
you to focus on paragraph 4 of your
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certification where you say, where you refer
to the [Comparato] case . . . [.] The case
law clearly indicates that a wall must be
put up. And you hereby certify that a wall
has been created in our firm. Why don't you
tell me a little bit about that which would
alleviate any concerns the [c]ourt might
have.
DEFENSE COUNSEL: [The former clerk] doesn't
work on any files where there was a motion
that Your Honor heard. My understanding of
the way this works is because I was a former
clerk and this is the way it worked for me -
. . . .
THE COURT: Okay, what about [plaintiff's
counsel] in his one form of relief that he
is seeking, he's asking, compelling [defense
counsel] to provide any and all information
related to [the law clerk's] employment with
her firm, including but not limited to the
date of the offer, et cetera, et cetera, et
cetera. What do you have to say about that?
DEFENSE COUNSEL: My recollection and I did
talk to her about this one aspect of it,
because it doesn't have anything to do with
the substance of the case, is that I did not
make her the offer formally.
And I know that seems a little unusual. But
I will say on the record that when I
interviewed her, basically the offer that I
extended to her was, if you don't get
anything else, let me know. Because I liked
her. I wanted to have her in the office. I
thought she was a hard worker. I think she
was the hardest working law clerk that was
here all year.
THE JUDGE: So you don't think that
[plaintiff's counsel] is entitled to this
information is what you're saying?
17 A-1947-12T2
DEFENSE COUNSEL: No.
THE JUDGE: Okay.
By order dated November 27, 2012, the trial judge denied
plaintiff's motion: (1) to vacate the July 20, 2012 order; (2)
seeking copies of the forms the judge completed to hire the law
clerk for court-year 2011-2012 in accordance with Directive 17-
08; (3) to compel defense counsel to provide information related
to the hiring of the trial judge's law clerk, including the date
the offer of employment was made and any email or other written
communications between defense counsel and the law clerk
concerning her employment at defense counsel's firm; (4) to have
the judge recuse himself from this case; and (5) to transfer the
case to another judge.
II
Against this backdrop, plaintiff now appeals arguing the
trial judge committed reversible error when he denied her motion
to vacate the July 20, 2012 order because there is sufficient
evidence to infer his law clerk was engaged in employment
negotiations with defense counsel during the time the judge
entered this order. Plaintiff also urges us to remand the
matter to permit the trial judge to make the factual findings
and conclusions of law required by Rule 1:7-4(a).
18 A-1947-12T2
We will divide our analysis into three parts. The first
part relates to the law clerk's pre-employment negotiations and
activities with defense counsel while the trial judge was
involved in carrying out this court's directive to conduct an
ability-to-pay hearing and determine defendant's arrears with
respect to child support and alimony. The second part will
address the ethical implications to the trial judge once the law
clerk was formally employed by defense counsel. The third part
will address plaintiff's allegations concerning the trial
judge's familial relationship to his law clerk and the ethical
implications that arose once the law clerk accepted a position
with defense counsel's firm.
A
Rule 1:12-2 authorizes a party to file a motion seeking to
disqualify the judge presiding over the case. The motion for
disqualification must state the reasons supporting the moving
party's position, ibid., and must be made directly to the judge
presiding over the case. State v. McCabe, 201 N.J. 34, 45
(2010). The decision to grant or deny the motion for
disqualification rests entirely within the sound discretion of
the trial judge. Chandok v. Chandok, 406 N.J. Super. 595, 603
(App. Div.), certif. denied, 200 N.J. 207 (2009). However,
19 A-1947-12T2
"[w]e review de novo whether the proper legal standard was
applied." McCabe, supra, 201 N.J. at 45.
Pursuant to Rule 1:12-1(a), a judge is disqualified from
sitting in any matter if the judge "is by blood or marriage the
second cousin of or is more closely related to any party to the
action[.]" Under Rule 1:12-1(g), the judge is disqualified
"when there is any other reason which might preclude a fair and
unbiased hearing and judgment, or which might reasonably lead
counsel or the parties to believe so." Our Supreme Court has
recently adopted the following standard to assess whether a
judge's personal behavior creates an appearance of impropriety.
According to the Court, the judge must ask: "Would an individual
who observes the judge's personal conduct have a reasonable
basis to doubt the judge's integrity and impartiality?" In re
Reddin, supra, 221 N.J. at 223.
Here, the record shows defense counsel approached the trial
judge sometime before August 1, 2012,1 to apprise him of her
interest in hiring his law clerk. We do not know, however, when
that first contact occurred, where it took place, and what was
1
Plaintiff included in the appellate record a copy of defense
counsel's Facebook page dated August 1, 2012, in which defense
counsel stated: "Dinner — with [law clerk] [at] Asian Harbor.
In approximately 1 hour my soon to be new associate should be
here to shop for office furniture. [S]he finally said yes.
[O]nly one more month on my own and I will officially be 'we'
again. Of course[,] I'll still be the boss[.]"
20 A-1947-12T2
specifically discussed between the judge and defense counsel.
Moreover, given plaintiff's subsequent motion practice related
to this encounter, we can infer that this was an ex parte
meeting between defense counsel and the trial judge. Left
unaddressed, these issues raise troubling questions about the
propriety of defense counsel's unilateral access to the judge
during a period of time when the parties were engaged in active
and contentious motion practice. Under these circumstances, an
objective observer would have a reasonable basis to doubt the
judge's impartiality because the meeting between the judge and
defense counsel occurred without prior notice to plaintiff's
counsel and the topic of the encounter concerned an employment
opportunity for a confidential member of the judge's staff. See
In re Reddin, supra, 221 N.J. at 223.
Based on this record, we are compelled to remand this
matter for the judge to make specific findings describing the
law clerk's pre-employment activities with defense counsel. The
judge must make specific findings regarding the timing and
substance of defense counsel's employment discussions with his
law clerk, including whether the law clerk independently
notified the judge of her employment negotiations with defense
counsel as required by RPC 1.12(c). The judge must also
describe what duties the law clerk performed for him in
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connection with this case after defense counsel revealed her
interest in hiring his law clerk. Specifically, the judge must
determine whether the law clerk "substantially participated" in
the judge's decisions related to this case. In making this
determination, the judge should be guided by the factors
described by the Supreme Court in Comparato:
Whether such [substantial] participation has
occurred ultimately depends on the totality
of circumstances in a given case. Relevant
to the inquiry is whether the law clerk was
involved in the case beyond performing
ministerial functions or merely researching
general legal principles for the judge.
Conduct rising to the level of "personal and
substantial" participation would involve a
substantive role, such as the law clerk
recommending a disposition to the judge or
otherwise contributing directly to the
judge's analysis of the issues before the
court.
[Comparato, supra, 180 N.J. at 98-99.]
If the judge concludes the law clerk "substantially
participated" in any of the decisions he reached in this case
after defense counsel revealed to him her interest in hiring his
law clerk or after defense counsel revealed to the law clerk her
interest in hiring her, the judge is required to vacate any
orders entered during this time period and recuse himself from
further involvement in this case. See In re Reddin, supra, 221
N.J. at 223; R. 1:12-1(g).
22 A-1947-12T2
B
We next address plaintiff's allegations concerning the law
clerk's participation in this case after she was hired by
defense counsel's firm. The record in this respect is also
sparse and inadequate to conduct a meaningful appellate review.
The only evidence presented to the trial court with respect to
the law clerk's duties after she became an associate in defense
counsel's firm is contained in a certification submitted by
defense counsel in opposition to plaintiff's motion to
disqualify the trial judge. Paragraph 4 of this certification
states, in relevant part:
The Comparato case clearly indicates that
there is no conflict or ethical violation
created merely by a [law clerk] interviewing
with or accepting employment with a law firm
that appears before the [law clerk]'s judge.
Rather the case clearly indicates that a
"wall" must be put up and the [law clerk]
must be excluded from working on the file –
at the law firm. I hereby certify that such
a wall has been created in our firm.
Moreover, the court should note that in
Comparato, the trial court was not forced to
recuse itself either.
Defense counsel's proffer of the Supreme Court's holding
and analysis in Comparato is not correct because it fails to
address the absence of information concerning the law clerk's
involvement in the case during her clerkship. The plaintiff's
principal objection in Comparato was predicated on the notion
23 A-1947-12T2
that the clerkship allowed the former law clerk to acquire
information that the adversary firm "could have used or still
might use to its advantage, making it too late to employ a
screening mechanism." Comparato, supra, 180 N.J. at 99-100.
The Supreme Court rejected the plaintiff's application for
recusal because there was ample evidence in the record attesting
to the law clerk's activities during her clerkship as involving
primarily ministerial functions. Id. at 98-100.
Here, by contrast, the record does not contain any
description of the duties the law clerk performed for the trial
judge. Without this vital information, we are unable to
determine whether the trial judge erred in accepting defense
counsel's certification as well as her self-serving unsworn
representations at oral argument as sufficient evidence on this
critical point. On remand, after making specific findings
describing the law clerk's functions and duties during her
clerkship, the judge must then determine, based on competent
evidence, what measures defense counsel took to screen the law
clerk from any participation in this case. The restrictions
imposed on the law clerk in her capacity as defense counsel's
associate must be commensurate to the law clerk's duties during
her clerkship and must also be capable of removing any
appearance of impropriety. Comparato, supra, 180 N.J. at 98-99.
24 A-1947-12T2
C
We conclude our analysis by addressing plaintiff's claims
concerning the trial judge's familial relationship to his former
law clerk. Plaintiff argues that independent of any
prophylactic measures defense counsel may have taken or can take
to screen the law clerk from any involvement in this case, the
trial judge's familial relationship to the law clerk, now
defense counsel's associate, creates a per se conflict of
interest which requires the trial judge to disqualify himself on
his own motion.
Plaintiff's argument is predicated on the strict
proscriptions under Rule 1:12-1(b), which precludes a judge from
sitting in any case if the judge "is by blood or marriage the
first cousin of or is more closely related to any attorney in
the action. This proscription shall extend to the partners,
employers, employees or office associates of any such attorney
except where the Chief Justice for good cause otherwise
permits[.]" (Emphasis added).
Plaintiff also relies on Administrative Directive 17-08,
which describes the judiciary's policy on the Appointment of
Judges' Relatives to Judiciary Positions issued on December 2,
2008 by Judge Glenn A. Grant in his capacity as Acting
25 A-1947-12T2
Administrative Director of the Courts.2 The public policy
underpinning the Directive is succinctly stated under section
one: "No appointment of judges' close relatives to Judiciary
positions, with the exception of law clerk positions, may be
made without the prior approval by the Supreme Court, by
application through the Administrative Director's office."
(Emphasis added).
Section five of Administrative Directive 17-08 defines a
"Judge's close relative" as including the following categories
of familial status:
The judge's spouse, civil union partner, or
registered domestic partner;
The following relatives of the judge or the
judge's spouse, civil union partner or
registered domestic partner:
child or legal ward; parent, grandparent, or
grandchild; uncle or aunt; brother or
sister; nephew or niece; first cousin; or
the spouse, civil union partner, or
registered domestic partner of any of the
above.
[Id. at 4.]
2
Directive 17-08 is available on the judiciary's website.
Judiciary of the State of New Jersey, Policy on the Appointment
of Judges' Relatives to Judiciary Positions (Dec. 2, 2008),
available at
http://www.judiciary.state.nj.us/directive/2008/dir_17_08.pdf.
"Furthermore, administrative directives have the force of law."
R.K. v. D.L., 434 N.J. Super. 113, 130 n.7 (App. Div. 2014).
26 A-1947-12T2
The record shows plaintiff's counsel asked the trial judge
to disclose the familial relationship, if any, he had to the law
clerk he hired to serve during court-year 2011-2012. In response,
the judge indicated on the record that he had read "that
guideline" and concluded that the law clerk "does not fall within"
any of the specific categories outlined in Section five of
Administrative Directive 17-08. Despite plaintiff's requests for
the trial judge to identify the precise familial relationship he
had to his law clerk, the judge declined to do so.
Our Supreme Court recently admonished those of us who are
entrusted to serve as judges that:
[t]o the public, judges embody the court
system. As a result, their conduct -- both
on and off the bench -- can promote as well
as erode confidence in the Judiciary. For
that reason, the ethical principles that
guide judges' behavior extend not only to
the performance of their official duties but
also to their personal lives.
[In re Reddin, supra, 221 N.J. at 223.]
In DeNike, the Court stated the key question that must be
answered when a claim is made challenging a judge's impartiality
is, "[w]ould a reasonable, fully informed person have doubts
about the judge's impartiality?" DeNike, supra, 196 N.J. at
517. In In re Reddin, the Court modified this straightforward
query by adding what it characterized as "an element of
objective reasonableness." In re Reddin, supra, 221 N.J. at
27 A-1947-12T2
234. As framed by Chief Justice Rabner, "[t]o assess whether a
judge's personal behavior creates an appearance of impropriety,
[the question is] 'Would an individual who observes the judge's
personal conduct have a reasonable basis to doubt the judge's
integrity and impartiality?'" Ibid.
Here, the record reflects plaintiff's counsel asked the
trial judge a number of times to define the judge's familial
relationship, if any, to the person who worked as his law clerk
during court-year 2011-2012. At the time plaintiff's counsel
asked this straightforward question, the law clerk had finished
her one-year clerkship and was then employed as an associate in
defense counsel's firm. The record shows that in lieu of giving
a direct answer to this question, the judge stated, in essence,
a legal conclusion. Under these circumstances, we are satisfied
that an individual witnessing this exchange between the trial
judge and plaintiff's counsel would have a reasonable basis to
doubt the judge's impartiality. At best, the judge's response
appeared needlessly evasive; at worst, it was unacceptably
calculating. A judge's answer to a direct question seeking to
determine a basis for the judge's recusal must be candid,
honest, and straightforward, both in form and in fact. This is
the standard we apply to witnesses in a trial and to lawyers
before the bench. A judge's conduct in this respect must
28 A-1947-12T2
exemplify these virtues by dispelling any hint of impropriety or
gamesmanship. Unfortunately, the record of the judge's colloquy
with plaintiff's counsel concerning his familial relationship to
his law clerk only served to reinforce a sense of uneasiness,
giving credence to the perception that the judge's response was
incomplete in some unknown, yet possibly material fashion.
Matrimonial cases present particular and unique challenges
to the judiciary. These cases are often contentious because the
nature of the controversy strikes at the very core of one of the
most intimate of all human relationships. As our colleague
Judge Donald Collester, Jr. eloquently noted:
[S]omething . . . goes to the essence of
marriage and is probably best left to poets
rather than judges. It is the reason that
people do get married. For marriage changes
who you are. It gives stability, legal
protection and recognition by fellow
citizens. It provides a unique meaning to
everyday life, for legally, personally and
spiritually a married person is never really
alone. Few would choose life differently.
[Lewis v. Harris, 378 N.J. Super. 168, 220
(App. Div. 2005) (Collester, J.,
dissenting), aff'd in part, modified in
part, 188 N.J. 415 (2006).]
Given this exalted place marriage as an institution
occupies in our society, litigants embroiled in the legal
dissolution of their union are often emotionally traumatized.
They bring to these legal proceedings a deep sense of
disappointment and an element of distrust that is rooted in the
29 A-1947-12T2
nature of the dissolution itself. Our Supreme Court has
consistently recognized that judges who sit in the Family Part
have a great sensitivity to these concerns and bring a high
level of expertise to these emotionally fragile matters. See
N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553
(2014) (citing Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)).
We thus expect our colleagues who sit in this legally difficult
and emotionally demanding Part of the Chancery Division to be
especially mindful of the challenges associated with this
assignment.
On remand, the trial judge must provide a direct,
straightforward answer to plaintiff's question concerning the
familial relationship the judge has to the person who served as
his law clerk during court-year 2011-2012. Ultimately, the
answer to this question may serve to dissipate any reasonable
doubts regarding the judge's impartiality.
III
In Summary
We vacate the trial court's order denying plaintiff's
motion seeking his recusal pending the outcome of the hearings
the judge must conduct on remand. We thus remand this matter
for the trial judge to determine with particularity the
timeframe of defense counsel's employment discussions with the
30 A-1947-12T2
judge's law clerk, and the specific date defense counsel made an
offer of employment to the law clerk. The judge must also make
factual findings concerning the duties the law clerk performed
during her tenure in 2011-2012. The judge must state what
prophylactic measures he took to avoid any potential conflict of
interest after he learned defense counsel was interested in
hiring his law clerk. The judge must then determine the extent
to which the law clerk's employment association with defense
counsel created an appearance of impropriety requiring his
recusal under the standards adopted by the Supreme Court in In
re Reddin. Finally, the judge must describe his specific
familial relationship to the person who served as his law clerk
during the 2011-2012 court term.
Reversed and remanded. We do not retain jurisdiction.
31 A-1947-12T2