When a Judge Is Too Involved to Judge Properly–Recusals and the Politics of Judge-Attorney Relations

Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark

Dominguez v. Education Management Services, Inc., decided by the Appellate Division on July 10, demonstrates two points–one legal, and one based in common sense:

1. There is a high standard for recusal (replacement) of a judge in a particular case
2. Don’t have bad interactions with judges if they can be avoided, or choose a firm with a reputation of such.

In this case a law firm filed a suit against an employer in a workers’ compensation case. The firm filed for a motion of recusal of the judge of workers’ compensation (JWC) in this particular case, which the JWC denied, and the Appellate Division affirmed on this appeal. The firm also filed a motion for the JWC to me disqualified from all their future cases. The main justification for this disqualification was that the firm had previously employed the JWC when she was a practicing attorney, but fired her after only a few weeks of employment because there were conflicts between her and the firm’s support staff. The firm tried to show a history of adverse decisions in their cases presented in front of the JWC, and proposed those outcomes were causally linked to the negative view of the firm held by the JWC. According to the firm, the JWC contacted them and said she would not resist the motion, and would place future cases from that firm on her disqualified list. Note, a judge may disqualify herself from a case if she feels she would be biased for a variety of different reasons. However, the JWC denied saying that to the firm, and she denied the motion for recusal.

Upon review the Appellate decision noted that the decision to recuse is within the discretion of the trial judge, and Rule 1:12-1(g) governs. The entire Rule 1:12-1 disqualifies a judge if the judge:

(a) is by blood or marriage the second cousin of or is more closely related to any party to the action;

(b) 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;

(c) has been attorney of record or counsel in the action;

(d) has given an opinion upon a matter in question in the action;

(e) is interested in the event of the action;

(f) has discussed or negotiated his or her post-retirement employment with any party, attorney or law firm involved in the matter; or

(g) 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.

The Appellate Division noted that that a judge should not hear a case if “a fully informed person might reasonably question the impartiality of the judge.” The firm in this case made a mistake. Firstly, they brought the motion for recusal on behalf of the firm itself, and failed to attach it to the petitioner’s case. Secondly they did not provide evidence of bias beyond judgments by the JWC that were unfavorable to them.

Recusal is not something that is taken lightly by judges. It is hard to know whether the judge in this case was biased or not. Perhaps she did hold a grudge to the firm, or perhaps she was perfectly capable of separating her past with the firm from her duties as a judge. A judge may recuse themselves, and either party in the case may make a motion for recusal, but that should be done before the judge begins to hear the case, which was an additional mistake the firm made in this case. But, the bottom line is that recusal requires more than showing a pattern of unfavorable judgments that may in fact be based on the merits, or lack thereof of the case. Lastly, it is best to maintain cordial relations with judges both as a client, and for your attorney. Given the facts of this case it does not seem the firm could have predicted that one of their former employees would become a judge, and it is unclear whether they could have done anything differently before their motion. However, they certainly could have handled the motion for recusal in a more effective way.