The issue presently before this court is whether the employment of the former Law Clerk of the trial judge precludes the continued representation of the plaintiff by the hiring firm or, alternatively, whether the sitting judge must recuse himself. This court holds that it is well within the guidelines of ethical conduct to maintain the status quo without prejudice to any of the parties.
It was stipulated that the motion is properly before this court both as to substitution and to recusal.
The plaintiff-husband filed for divorce on May 5, 1987, with the initial motion for pendente lite support decided by the court in April 1988. As is the case in numerous divorce actions in which the marital estate is substantial, the final disposition has not yet been reached.
Attorneys practicing in the State of New Jersey are aware that law clerks of Superior Court judges begin their term of service on the first of September and continue until the thirty-first of the following August. Therefore, the time period on which the defendant focuses her concern is September 1988 through August 1989. During those months, four motions and one cross motion were decided. All the applications concerned non-substantive issues which will not be part of the subject matter of the pending trial. On December 7, 1988 an order was entered after oral argument in open court regarding the taking
of deposition and production of documents and the procedural issue of bifurcation of trial. The next motion was returnable February 3, 1989, and sought the return of the 1987 income tax refund check from defendant to plaintiff. At the same time, a cross-motion for an increase in pendente lite support and to compel Mr. Marxe to share the refund check was also filed. Oral argument on those motions was had, limited to whether or not there was a sufficient change of circumstances to warrant the relief requested by Mrs. Marxe. Such increase was denied by an order entered March 13, 1989, and defendant was compelled to execute an authorization for the issuance of a replacement refund check by an order dated April 27, 1989.
Another motion was filed by a third party, returnable on February 6, 1989, which concerned the issue of whether a non-party, non-resident was immune from service of a trial subpoena when he came into the jurisdiction for depositions at the request of the court appointed accountant. An order denying the motion to quash was signed on April 26, 1989, thereby sustaining defendant's position. An opinion was rendered on this issue. Marxe v. Marxe, 233 N.J. Super. 247, 558 A.2d 522 (Ch.Div.1989).
The final motion filed during the time period in question also concerned discovery issues and the filing of a joint 1988 income tax return and was decided by an order entered on August 10, 1989. The original return date was June 9, 1989, and the judge's decision was communicated to the parties' respective attorneys on June 29th by someone on his staff other than his clerk. While there was a dispute as to the proper form of order, the judge himself reviewed the objections and determined the final form without any participation by the clerk.
On July 14, 1989, the law clerk accepted an offer of future employment with Schiffman, Berger and Kaufman, the law firm representing Mr. Marxe. During the several interviews conducted by the partners, at no time was this or any litigation pending before the judge ever discussed. Further, since she
has become associated as an attorney with the firm, this court is satisfied that a strict hands-off policy has been observed and that there has been absolutely no involvement with the Marxe case. Counsel for the defendant appears to concede this.
New Jersey Rules of Professional conduct deal with successive government and private employment.
Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter (1) in which the lawyer participated personally and substantially as a public officer or employee, (2) about which the lawyer acquired knowledge of confidential information as a public officer or employee, or (3) ...