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NOT FOR PUBLICATION WITHOUT THE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

2 A-1947-12T2
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

3 A-1947-12T2
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.

4 A-1947-12T2
 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

5 A-1947-12T2
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

6 A-1947-12T2
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

7 A-1947-12T2
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

8 A-1947-12T2
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

9 A-1947-12T2
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

11 A-1947-12T2
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

12 A-1947-12T2
 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

15 A-1947-12T2
 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

16 A-1947-12T2
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

21 A-1947-12T2
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