NJ Supreme Court Orders New Trial Due To Appearance of Impropriety Created by Retiring Trial Judge Negotiating Employment With Trial Counsel
In an important decision that provides guidelines for retiring judges seeking future employment in the legal profession, on September 24, 2008 the New Jersey Supreme Court ordered that a new trial must be conducted because of the appearance of impropriety created by a then soon-to-be retiring Chancery Court trial judge who, before the case had been concluded, began negotiating employment with an attorney appearing before him whose firm represented one of the litigants in the same case. DeNike v. Cupo (A-61-07, September 24, 2008).
In so ruling, the New Jersey Supreme Court reversed the decision of the lower court (Appellate Division) which had determined that the trial judge's conduct, although inappropriate, did not influence the outcome of the case because the trial judge already had issued his substantive rulings in several written opinions and that his remaining functions as the presiding judge in this case were "ministerial."
The NJ Supreme Court concluded that the public trust in the judicial system would be compromised in the absence of a new trial. Specifically, the NJ Supreme Court held:
Recognizing that the existing Rules of Professional Conduct and Code of Judicial Conduct do not specifically provide instructions for post-retirement employment discussions between judges facing mandatory retirement and private employers in the legal profession, the NJ Supreme Court offers the following guidelines:
1. Judges may not discuss or negotiate for employment with any parties or attorneys involved in a matter in which the judge is participating personally and substantially. If the subject is raised in any fashion, judges should put a halt to the conversation at once, rebuff any offer, and disclose what occurred on the record.
2. Judges who engage in retirement discussions while still on the bench - with attorneys who do not have a matter pending before them - must proceed in a way that minimizes the need for disqualification and upholds the integrity of the courts. To that end, judges should delay starting any discussions until shortly before their planned retirement, and should discuss post-retirement employment opportunities with the fewest possible number of of prospective employers.
3. Judges must disqualify themselves from matters involving parties or attorneys with whom they have discussed future employment, whether or not those discussions lead to a future relationship.
4. Judges should wait a reasonable period of time before discussing employment with an attorney or law firm that has appeared before the judge.
The NJ Supreme Court referred the matter to the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activities for their recommendations.
In so ruling, the New Jersey Supreme Court reversed the decision of the lower court (Appellate Division) which had determined that the trial judge's conduct, although inappropriate, did not influence the outcome of the case because the trial judge already had issued his substantive rulings in several written opinions and that his remaining functions as the presiding judge in this case were "ministerial."
The NJ Supreme Court concluded that the public trust in the judicial system would be compromised in the absence of a new trial. Specifically, the NJ Supreme Court held:
Judges must avoid actual conflicts as well as the appearance of impropriety to promote confidence in the integrity and impartiality of the Judiciary. Unfortunately, the negotiations between trial judge and lawyer in this case created an appearance of impropriety. Stated simply, the conduct here fell far short of the high standards demanded of judges and fellow members of the legal profession and had the capacity to erode the public's trust. Because any lesser remedy would allow reasonable doubts to linger about the fairness of the outcome of the case, the judgment of the Appellate Division is reversed and the matter is remanded for a new trial.Although there was no evidence that this respected trial judge acted out of actual bias in favor of the firm whom he was in the midst of negotiating terms of employment, the NJ Supreme Court was of the opinion that the appearance of impropriety generated by these employment negotiations and the prospect of a financial relationship between the law firm and the judge raises doubts about those decisions and the judge's impartiality in general.
Regrettably, from the standpoint of a knolwedgeable, objective observer, the brief negotiations toward the end of the litigation could reasonably have infected all that occurred beforehand. As a result, a full trial is required to restore public confidence in the integrity and impartiality of the proceedings, to resolve the dispute in particular, and to promote generally the administration of justice.
Recognizing that the existing Rules of Professional Conduct and Code of Judicial Conduct do not specifically provide instructions for post-retirement employment discussions between judges facing mandatory retirement and private employers in the legal profession, the NJ Supreme Court offers the following guidelines:
1. Judges may not discuss or negotiate for employment with any parties or attorneys involved in a matter in which the judge is participating personally and substantially. If the subject is raised in any fashion, judges should put a halt to the conversation at once, rebuff any offer, and disclose what occurred on the record.
2. Judges who engage in retirement discussions while still on the bench - with attorneys who do not have a matter pending before them - must proceed in a way that minimizes the need for disqualification and upholds the integrity of the courts. To that end, judges should delay starting any discussions until shortly before their planned retirement, and should discuss post-retirement employment opportunities with the fewest possible number of of prospective employers.
3. Judges must disqualify themselves from matters involving parties or attorneys with whom they have discussed future employment, whether or not those discussions lead to a future relationship.
4. Judges should wait a reasonable period of time before discussing employment with an attorney or law firm that has appeared before the judge.
The NJ Supreme Court referred the matter to the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activities for their recommendations.
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