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N.J. Supreme Court Imposes Restrictions on Job-Seeking Judges
New Jersey Law Journal
September 29, 2008
The New Jersey Supreme Court on Wednesday effectively banned discussions between judges seeking retirement jobs and lawyers appearing before them.
Judges may not talk about jobs with parties or attorneys in a matter in which the judge is participating "personally and substantially," Chief Justice Stuart Rabner wrote for the unanimous Court in Denike v. Cupo, A-61.
And if a lawyer brings up the subject, "judges should put a halt to the conversation at once, rebuff any offer, and disclose what occurred on the record," the court said.
The justices found that former Bergen County Superior Court Judge Gerald Escala committed the appearance of impropriety when he talked about a job offer with a Hackensack, N.J., lawyer while winding up a commercial dispute before him in 2006.
There was no evidence that the offer -- which Escala accepted two days after the case ended -- led to rulings in the firm's favor. But the court found that the relationship cast doubt on the integrity of the judicial process, and so vacated Escala's judgment and ordered a retrial.
"Unfortunately, the negotiations between trial judge and lawyer in this case created an appearance of impropriety," Rabner said. "Stated simply, the conduct here fell 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."
By all accounts, Escala was no different from legions of New Jersey judges who have lined up jobs in private practice during the weeks counting down to their mandatory retirement from the bench at age 70 or their resignation at an earlier age.
Thomas Herten, of Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, asked Escala in chambers on Jan. 24, 2006, whether he would consider joining the firm when he reached retirement age a month later, and the judge expressed interest.
The approach came just as Escala was winding up a three-year partnership dispute in which Herten represented Lawrence DeNike and James Keegan of Bendit Weinstock in West Orange, N.J., represented Michael Cupo.
The judge ruled after a five-day trial in March 2005 that Herten's client would pay for Keegan's client's interest in the company, but the question of how much remained.
In December 2005, Escala set a net amount of $436,682, but the quibbling over details continued after Herten's and Escala's January 2006 discussions about a job. On Feb. 1, 2006, the judge signed a final order which, in effect, denied a motion by Herten's adversary to award an additional amount of $98,530.
Two days later, Herten and Escala agreed in principle that the judge would join the firm, and he announced his plans at a retirement dinner that night.
Keegan cried foul.
He moved for a new trial in the case, which was transferred to Passaic County. Assignment Judge Robert Passero offered Keegan a chance to seek reconsideration of any issues and to question Herten and Escala on the record, but Keegan held out for an entire do-over.
Passero remarked that it would have been better if Escala had not discussed the job with Herten, but he denied the motion to vacate, and an appeals court affirmed the decision on grounds there was no evidence of a taint on the substance and no rule barring the job discussion.
There is now.
The Supreme Court ruled that while the entering of post-trial judgments may be ministerial in nature, they required Escala to be "substantially engaged" in the case.
Under Canon 3(C)(1) of the Code of Judicial Conduct, judges are required to disqualify themselves if their impartiality might reasonably be questioned. Rule 1:12-(f) requires disqualification in instances that could lead counsel or parties to have reasonable beliefs that fair and unbiased judgments are precluded.
In this case, the court concluded that "based on the timing of the negotiations toward the close of the case, an objective observer might reasonably wonder whether Judge Escala favored the Herten firm either consciously or unconsciously."
In ordering a full retrial, the court said: "Regrettably, from the standpoint of a knowledgeable, objective observer, the brief negotiations toward the end of the litigation could reasonably have infected all that occurred beforehand."
Here are the court's instructions for job-seeking judges and the lawyers who hire them:
• Don't have a discussion if the firm has a matter in which the judge is "participating personally and substantially."
• If the subject is raised, the judge should halt the conversation, rebuff any offer and disclose what occurred on the record.
• If the subject arises with an attorney who is not before the judge, the judge should still be wary. Judges should delay starting any discussions until shortly before their planned retirement, and keep such discussions to the fewest possible number of prospective employers.
• The safest course would be to wait until retirement before starting all job searches, but that's not required and it can be impractical.
In the federal courts, judges are required under Opinion 84 of the Committee on Codes of Conduct to wait for "the passage of a reasonable interval" of time before discussing jobs with firms that have appeared before them.
That opinion would be a good starting point for further study of the issue, the court said, and it commissioned such a study by two of its committees: the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activities.
Escala was a municipal judge in Bergen County from 1973 to 1991, when he started a 15-year career as a superior court judge. The Supreme Court called the conduct at the end of his career "a momentary slip in Judge Escala's unblemished tenure."
"That brief episode should not overshadow a lengthy, fine and dedicated career in public service," the court said. "But the standard of judicial conduct is necessarily high so that the integrity and independence of the judiciary may be preserved," the court said.
Keegan says the key issue on remand will be the valuation of his client's interest in the partnership, but he declines to quantify the difference between what the client wants and what he got in Escala's court.
Keegan suggests that Escala's conduct clearly constituted the appearance of impropriety under existing law and ethics rules, otherwise the court would have made the ruling prospective.
Even so, he says, "It's an important case because it gives guidance to judges seeking post-judicial employment and enunciates standards consistent with the promotion of public confidence in the judiciary."
