On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-2521-95.
Before Judges Stern, Coburn and Alley.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
We granted leave to appeal from an order of October 28, 2002, which denied plaintiff's application to disqualify the trial judge, the firm presently representing defendant, and the firm which previously represented defendant (where defendant's lead counsel, Neil Braun, Esq., had previously been a partner). The motion was based on the fact that Priscilla Miller, Esq., an associate who accompanied Mr. Braun from the original firm representing defendant to the present firm, and who is now working on the case, had served a clerkship with the trial judge while the judge handled aspects of the case. Plaintiff argues that "the trial judge should have been recused and the defendant's present and former counsel should have been disqualified given that Ms. Miller's representation of defendant was never disclosed nor consented to by all parties and the appearance of impropriety cannot be cured."
The underlying facts are not in dispute. Plaintiff commenced divorce proceedings on May 22, 1995. The case was decided in December 1998. The final judgment of divorce was entered on April 13, 1999. The trial judge thereafter heard several post-judgment applications.
Ms. Miller served as the trial judge's law clerk from September 1999 to August 2000. As part of her duties, she "primarily was responsible for the court's motion calendar each motion day," attended oral arguments and conferences in chambers, and "performed research for the Court." During her clerkship, several post-judgment motions were filed in the matter. On September 24, 1999, an order was entered which granted a motion filed by defendant in August 1999 to enforce litigant's rights. In November 1999, defendant filed another motion to enforce litigant's rights, and after argument on December 3, 1999, an order was entered on February 10, 2000, granting that motion. On April 20, 2000, the judge issued a warrant for plaintiff's arrest as a result of plaintiff's "failure to abide by the Judgment of Divorce and the Court Order dated February 10, 2000." Other aspects of the matter remained pending.
Upon the completion of her clerkship, Ms. Miller began working as an associate of Donahue, Braun, Hagan, Klein & Newsome, P.C. ("Donahue firm") from September 2000 until April 2002. During this time she had no involvement with this case or the client.*fn1 On April 15, 2002, Ms. Miller left the Donahue firm and became associated with the law firm of Gomperts & Braun ("Gomperts firm") which Mr. Braun formed with Gerri Gomperts, Esq. Mr. Braun took the file with him to his new firm, and a substitution of attorney was filed on July 15, 2002. In the interim, defendant was granted relief in the form of discovery, and plaintiff sought leave to appeal. Ms. Miller was assigned to review the Notice of Motion for Leave to Appeal and, on July 9, 2002, drafted a response on behalf of defendant. Ms. Miller thereafter pursued the "discovery requests" and corresponded "once with the court stating [defendant's] position with reference to plaintiff's stipulation of his ability to pay alimony." Ms. Miller further certifies that she met defendant for the first time on September 5, 2002. Thereafter, she met defendant "on one occasion thereafter to update her Case Information Statement" prior to its filing in the pending proceedings.
On September 24, 2002, Ms. Miller attended a deposition of plaintiff being taken by Mr. Braun. During the session, Ms. Miller told plaintiff's attorney that she "recognized" her, and advised counsel that she "was the former law clerk to the" trial judge. According to opposing counsel, Ms. Miller "referenced motions [before the judge in this matter] during her tenure as law clerk." After the deposition, the only involvement Ms. Miller had with the case is a follow-up letter to opposing counsel "requesting additional discovery [of plaintiff]," although plaintiff asserts Ms. Miller "has been actively working on the... matter almost immediately upon the Substitution of Attorney."
On October 4, 2002, plaintiff wrote a letter to the trial judge requesting that he "recuse himself" because Ms. Miller was his law clerk when certain motions were before the court and post-judgment orders were entered. Plaintiff further requested that the court recuse and disqualify Ms. Miller and her present and prior law firms, and the judge held a hearing on the matter on October 28, 2002.
Plaintiff argued that defendant was required to retain new counsel to avoid "the appearance of impropriety." Plaintiff asserted that Ms. Miller had "access [to the] judge's thoughts and perceptions and credibility assessments that are not had by the general public." Plaintiff further suggested that it is too late to create a "Chinese wall," because "once the damage is done... the entire matter is tainted." Mr. Braun argued that Ms. Miller did not have "intimate knowledge" or "confidential information" that was not public record, and that neither Ms. Miller nor the firm were disqualified.
The court noted that "[i]t is improper for a judge to withdraw from a case where [there is a] mere suggestion that the judge is disqualified unless the alleged cause of recusal is known by him to exist and is shown to be fact." The court also stated that disqualification "on the grounds of appearance of bias" must be based on an "objectively reasonable" belief that the proceedings would be unfair. The judge concluded that it was "well within the guidelines of ethical conduct to maintain the status quo without prejudice to any of the parties." The court reasoned:
The application before the Court in 1999 and 2000 concerned the plaintiff's violation of defendant's rights awarded to her under the dual judgment of divorce and subsequent enforcement orders. Each matter was entered after oral argument in open Court on enforcement of the plaintiff's obligations to the defendant. The plaintiff was found in violation of defendant's clearly defined rights awarded to her by the dual judgment of divorce and subsequent enforcement orders prior to Ms. Miller's clerkship.
The Superior Court Appellate Division [on an appeal] entered its decision November 1, 2000. More than a year later and after completion of Miss Miller's clerkship, the parties entered into a consent order on December 14, 2001 resolving the issues remaining on remand from the Appellate Division, as well as other issues and the ...