AR253

An Assembly Resolution urging the New Jersey Supreme Court to consider possible changes or additions to the Rules of Professional Conduct governing attorneys.

Whereas, Section 13 of P.L.1973, c.140 (C.43:6A-13) which concerns the Judicial Retirement System provides in subsection a. that no member of the retirement system shall, while receiving a pension or retirement allowance, engage in the practice of law before any of the courts of this State; and

Whereas, The New Jersey Supreme Court reissued “Guidelines on the Practice of Law by Retired Judges” on March 24, 2008 as Directive #5-08 which set out the limitations on the practice of law by former judges who have retired under the provisions of the “Judicial Retirement System Act,” P.L.1973, c.140 (C.43:6A-1 et seq.); and

Whereas, These 10 Guidelines include that a retired judge may not serve as an attorney in any contested matter in any court of the State of New Jersey; a retired judge generally may not serve as attorney in any contested or uncontested matter before either State or local administrative agencies, boards or tribunals exercising a discretionary or quasi-judicial function; and a retired judge may not represent parties before auto arbitration panels; and

Whereas, Office work connected to pending or proposed litigation is permissible but briefs, motions and other papers may not include the retired judge’s name nor may they reference that judge as “of counsel” or “on the brief” or make reference to that judge’s participation in any negotiations; and

Whereas, The Code of Judicial Conduct revised and effective as of September 1, 2016 sets forth seven Canons including that judges avoid impropriety and the appearance of impropriety and judges promote independence, integrity and impartiality of the Judiciary and each Canon has Rules setting forth specific guidance; and

Whereas, The Code of Judicial Conduct in Rule 3.17 addresses disqualification of judges in various circumstances including prior professional relationships and Rule 3.17 sets forth suggested time periods for judges to refrain from handling matters involving those prior professional relationships and, irrespective of the time periods, urges disqualification if the nature of the relationship to a party or a lawyer would give rise to partiality or the appearance of partiality; and

Whereas, The Advisory Committee on Judicial Conduct has jurisdiction pursuant to Court Rule 2:15-23 over any matters involving a judge’s activities or conduct while a judge subject to the Code of Judicial Conduct regardless of whether that judge retires, resigns from office or is not reappointed; and

Whereas, It appears that a former judge’s activities or conduct subsequent to leaving the bench who has not retired under the provisions of the “Judicial Retirement System Act,” P.L.1973, c.140 (C.43:6A-1 et seq.) is governed by the Rules of Professional Conduct generally and specifically by RPC 1:12 which provides in paragraph (a) in pertinent part that “a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, mediator or other third-party neutral . . .unless all parties to the proceeding have given consent, confirmed in writing.”; and

Whereas, Amplification of RPC 1:12 or any other Rules of Professional Conduct or adoption of additional Rules of Professional Conduct that may offer more specific guidance about disqualification and possible time periods to refrain from certain representations to any former judge now practicing law who is not retired under the provisions of the “Judicial Retirement System Act,” P.L.1973, c.140 (C.43:6A-1 et seq.) would be beneficial and an enhancement of the goal of preserving the integrity of the New Jersey Judiciary; now, therefore,

Be It Resolved by the General Assembly of the State of New Jersey:

1. The New Jersey Supreme Court is respectfully requested to consider adopting additional or amending existing Rules of Professional Conduct to provide more specific guidance to former judges who are not subject to the strictures of the “Guidelines on the Practice of Law by Retired Judges” because they are not receiving a pension or retirement allowance. The New Jersey Supreme Court is urged to consider setting forth certain time periods for possible disqualification under various circumstances or scenarios for these former judges who are practicing attorneys and, as such, are no longer subject to the Code of Judicial Conduct for their conduct or actions after leaving the bench but are subject to the Rules of Professional Conduct governing all attorneys.

2. Copies of this resolution, as filed with the Secretary of State, shall be transmitted by the Clerk of the General Assembly to the Chief Justice and all the Associate Justices of the New Jersey Supreme Court and to the Administrative Director of the Courts.

STATEMENT

This Assembly Resolution respectfully requests the New Jersey Supreme Court to consider adopting additional or amending existing Rules of Professional Conduct to provide more specific guidance to former judges who are not subject to the strictures of the “Guidelines on the Practice of Law by Retired Judges” because they are not receiving a pension or retirement allowance. The New Jersey Supreme Court is urged to consider setting forth certain time periods for possible disqualification under various circumstances or scenarios for these former judges who are practicing attorneys.

Section 13 of P.L.1973, c.140 (C.43:6A-13) which concerns the Judicial Retirement System provides in subsection a. that no member of the retirement system shall, while receiving a pension or retirement allowance, engage in the practice of law before any of the courts of this State. The New Jersey Supreme Court reissued “Guidelines on the Practice of Law by Retired Judges” on March 24, 2008 as Directive #5-08 which set out the limitations on the practice of law by former judges who have retired under the provisions of the “Judicial Retirement System Act,” P.L.1973, c.140 (C.43:6A-1 et seq.). However, there may be former judges practicing law who did not retire under that system, including those who may resign or who are not reappointed. While the Code of Judicial Conduct governs their conduct or actions while serving on the bench, these types of former judges who return to the practice of law would be subject to the Rules of Professional Conduct governing all attorneys upon their cessation of employment as a judge.

This resolution urges the New Jersey Supreme Court to consider reviewing the Rules of Professional Conduct and providing more guidance on potential disqualification of former judges from certain representations for certain periods of time. Although employment as a judge has ceased, a former judge may be subject to a public perception of possessing certain advantages over other attorneys or parties in certain circumstances. The application of certain time periods for disqualification of the former judge may contribute to the goal of fostering an independent Judiciary and assist in eliminating even a mere appearance of impropriety. The sponsor suggests that just as an attorney entering into service on the bench has to consider prior professional relationships and any resultant appearances of favoritism that necessitate a recusal for certain periods of time, then an attorney exiting service on the bench may need to undertake certain delineated considerations and face certain time periods to distance themselves from their identification as a judge by the public, as the New Jersey Supreme Court may see fit.