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Retrial for Case Involving Questions of Judicial Impropriety

By Sean T. Carnathan, Litigation News Associate Editor – December 11, 2008

In DeNike v. Cupo, the Supreme Court of New Jersey issued bright line rules for judges seeking post-judicial employment and law firms who recruit them. The court’s order of a full retrial to remedy the appearance of impropriety, despite finding no actual bias, is a warning to both bench and bar.

History of the Dispute
Shortly after a bench trial before a respected New Jersey state court judge, plaintiff’s counsel invited the judge to join his law firm after he reached mandatory retirement age, which was only a month away. The discussions continued and the judge eventually did join the firm.

In the meantime, and after the discussions between the plaintiff’s counsel and the judge had commenced, the defendant raised issues about the verdict of that bench trial. The defendant expressed concern over the applicable interest rate on the payments the court had awarded and contended he should receive a credit of $98,530 against the sum awarded. The plaintiff objected, and each party submitted a proposed order. The court essentially adopted the plaintiff’s proposed order with some modifications, thereby denying the defendant’s motion to credit him with $98,530.

When the defendant learned that the judge had joined the plaintiff’s law firm, he moved to vacate the judgment and requested a new trial. Both the trial court judge who reviewed the motion to vacate and the New Jersey Appellate Division affirmed the judgment entered, finding that only “ministerial” tasks remained after the employment negotiations began, and there was no violation of any canon of ethics.

DeNike v. Cupo
The New Jersey Supreme Court disagreed. In an opinion referring to both Rule 1.12 of the Rules of Professional Conduct for attorneys and Canon 3(C)(1) of the Code of Judicial Conduct, the court vacated the judgment. The supreme court rejected the conclusion that the issues in dispute required only ministerial acts by the trial court after employment negotiations commenced. It held that the circumstances were such that “a reasonable, fully informed person [would] have doubts about the judge’s impartiality.” The court concluded that “a full retrial is required to restore public confidence in the integrity and impartiality of the proceedings.”

“Judges are bound by different rules and a higher standard than lawyers,” observes Ann Marie Painter, Dallas, TX, cochair of the Section of Litigation’s Employment and Labor Relations Committee.

“The appearance of impropriety is not a lawyer issue under the rules of professional responsibility,” notes Painter. But it is clearly an issue lawyers need to consider when discussing employment with sitting judges.

The retrial remedy means that this misstep by plaintiff’s counsel and the judge hearing the case had a serious impact on the parties, who must now go through trial once more. Firms need to be sensitized to the appearance of impropriety standard and avoid “jeopardizing their client relationship by being too anxious” to hire a sitting judge, says Painter.

Judicial Conduct
“This is a very hot area,” says Penny White, Knoxville, TN, cochair of the Section’s Task Force on the Independence of the Judiciary. “The appearance standard garnered a lot of attention when the ABA rewrote the Model Code of Judicial Conduct,” she notes.

In connection with the 2007 revision of the Model Code of Judicial Conduct, the ABA panel initially recommended diluting the appearance standard. The underlying concern was that the standard was too vague and could lead to unfair judicial discipline. After widespread criticism from both bench and bar, however, the panel reinstated the obligation to avoid the appearance of impropriety in the new model code.

“It seems to me that the New Jersey Supreme Court got it right,” says White. “A judge who accepts the honor of judicial office must sacrifice. This is true in a number of contexts,” she remarks.

“Given the trust that we must place in our judicial officers, and the honor that the office should bestow upon them, the requirement that they forego lining up employment with a firm who has cases in which the judge is presently participating does not seem like much to ask,” White says.

In an interesting twist, the defendant recently filed a separate action against the law firm and partner who made the offer of employment to the judge, claiming they had “an obligation not to injure” him.

Keywords: DeNike v. Cupo, bright-line rules, post-judicial employment, Rules of Professional Conduct, Model Code of Judicial Conduct.

  • February 28, 2009 – Interesting review - well done ! A former Principal lecturer in the computer Industry, I am an unwitting and unsuccessful defendant in an unprecedented UK court ruling concerning Consumer Credit that has affected at least 300 Billions across the UK where the judges have removed statutory protection from debtors, to protect the banks. We allege a form of judicial impropriety is shown to the criminal standard by The UK's 1974 Consumer Credit Act, - its draftsman, Francis Bennion, supports our view that the judges have made a terrible mistake. We are trying to reopen under the UK Rule that "The common Law must not defeat the Statute". See www.ruinedbynatwest.com


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