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Judicial Conduct and Judicial Law Clerks

Every year the judiciary receives hundreds of clerkship applications from hopeful law students. Clerkships are highly coveted because they generally set an aspiring lawyer’s career on a fruitful path. A law clerk provides assistance to a judge in researching issues before the Court and in writing opinions. Unlike the court clerk and the courtroom deputy, both of whom are administrative staff for the court, a law clerk assists the judge in making legal determinations. Most law clerks are recent law school graduates.  Although times have changed, most law clerks obtain post-clerkship employment through the contacts they make with law firms during their clerkships. Impartiality becomes a concern when a law clerk’s future employer has matters pending before the law clerk’s judge.

In P.M. v. N.P., decided by the Appellate Division on June 17, 2015, defense counsel hired the law clerk of the trial judge who was presiding over matters defense counsel had pending before that judge. The plaintiff claimed that the “judge’s impartiality was tainted when his law clerk engaged in employment discussions with and ultimately accepted an offer of employment” from the defendant’s attorney during the law clerk’s employment with the judge. The plaintiff also argued that the law clerk was related to the judge in some fashion which the trial judge refused to disclose. The trial judge continued to preside over the case and decided post-judgment motions after the law clerk accepted employment with the defendant’s counsel.

Upon learning that the law clerk had accepted employment with the defendant’s counsel, the plaintiff’s counsel wrote to the trial judge inquiring as to when the law clerk accepted employment with the defendant’s counsel, when the law clerk was offered employment, and whether the law clerk worked on any aspect of the matter. The plaintiff’s counsel also noted that the familial relationship of the law clerk to the trial judge raised concerns of bias. The trial judge was not responsive to the plaintiff’s counsel’s letter. Consequently, the plaintiff filed a motion asking for the trial judge to recuse himself due to the conflict of interest and/or the appearance of impropriety under Rule 1:12-1, and Canon 4 of the Code of Judicial Conduct.  The judge denied that application. Thereafter, the plaintiff filed an appeal seeking to vacate the trial judge’s order denying his recusal.

Rule 1:12-1(a) provides that 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.” Rule 1:12-1(g) provides that the judge is disqualified “when there is any other reason which might preclude a fair and unbiased hearing and judgement, or which might reasonably lead counsel or the parties to believe so.” In other words, “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, 221 N.J. 221, 223 (2015).

As a result of the defense counsel’s Facebook post on August 1, 2012, wherein she stated that she was having dinner with her soon-to-be law clerk, that she was going shopping for office furniture with the law clerk, and stating that the law clerk finally said ‘yes’, the Appellate Division found that it could be inferred that defense counsel had approached the trial judge before August 1, 2012 to discuss hiring his law clerk. The Appellate Division stated that this raised concerns about the propriety of defense counsel’s unilateral access to the judge during a period when the parties were engaged in active and contentious motion practice that would lead an objective observer to have a reasonable basis to doubt the judge’s impartiality because the meeting between the judge and the defendant’s counsel occurred without prior notice to the plaintiff’s counsel and the topic of the encounter concerned an employment opportunity for a confidential member of the judge’s staff.

The Appellate Court vacated the trial court’s order denying plaintiff’s motion seeking the trial judge’s recusal pending the outcome of the hearings the judge must conduct on remand. On remand the trial judge must 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 pursuant to RPC 1.12 (c). In addition, the judge must describe what duties the law clerk performed for him in the matter after defense counsel revealed her interest in hiring his law clerk. If the judge determines that the law clerk “substantially participated” in any of the decisions reached in the matter after defense counsel revealed 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 the matter.

With regard to the law clerk’s participation in the case after she became an associate for defense counsel’s firm, after making specific findings describing the law clerk’s functions and duties during her clerkship, the judge must determine what measures defense counsel took to screen the law clerk from any participation in the case. The restrictions imposed in 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 v. Schait, 180 N.J. 90, 98-99 (2004).

Additionally, the Appellate Court found the trial judge’s refusal to define his familial relationship to the law clerk, created a reasonable basis to doubt the judge’s impartiality. The Appellate Court stated that “[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 fact.” On remand, the trial judge must provide a direct, straightforward answer to plaintiff’s question concerning the familial relationship the judge has to the law clerk.