In Goldfarb v. Solimine, approved for publication in June 2019, the Appellate Division rightly reversed a trial judge’s refusal to recuse herself upon plaintiff’s pretrial motion. The review panel remanded only the trial judge’s rulings which implicated the damage award by the jury and not the pro-plaintiff liability verdict. In addition, the Appellate Davison decided de novo certain evidentiary issues.

The facts in this case were not close; the trial judge’s refusal to recuse was in our view extraordinary and merited reversal. One of the judge’s former law clerks, now an associate at the defense firm, texted the judge and inquired as to her availability to preside over an imminent trial. The judge then asked permission of the presiding judge to preside over the matter, based on her seniority, and the presiding judge, apparently unaware of any association, agreed.

Prior to the trial, the trial judge apparently revealed in her chambers to counsel for both sides how she had secured the matter, but when plaintiff’s counsel raised the issue on the record, she chastised him for violating a “bedrock of practice, that what a judge tells you in chambers stays in chambers.”  She acknowledged that defense counsel “likes appearing before me.” The judge rejected the accusation by plaintiff that the intercession was tantamount to judge shopping and, instead, the trial judge insisted that it was “common practice for attorneys to inquire about a judge’s availability to take their case.” She further claimed that her former law clerks “do it all the time … hey Judge, the partner’s coming, are you open? Yeah, I’m open.” She insisted that she was sought out for her experience and reputation and not because she demonstrated any bias or favoritism.

In discussing the recusal issue, the Appellate Division found that the trial judge abused her discretion. Judge Ostrer writing for the court found that Code of Judicial Conduct Rule 2.1 requires judges to act to “promote[s] public confidence in the independence, integrity and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Rule 3.17(B) of the Code of Judicial Conduct requires judges to step aside from “proceedings in which their impartiality or the appearance of their impartiality might be questioned.” Code of Judicial Conduct Rule 3.8 specifically holds that a judge may not “initiate or consider ex parte or other communications concerning a pending or impending proceeding.” Importantly, the standards do not require erring on the side of caution as it is just as important for a judge to sit where appropriate as it is to disqualify herself if appropriate.

The opinion recites how judge shopping undermines public confidence in the impartial administration of justice by influencing case outcomes and creating a perception of partiality that could undermine the credibility of the court. In this case, not only did the defense counsel shop for the judge it wanted, but the trial judge affirmatively facilitated that selection. The inquiry from the former law clerk was not about scheduling, which is not in and of itself inappropriate if no unfair advantage is obtained; it was about a judicial assignment. A reasonable person would have had doubts about the judge’s impartiality.

The Appellate Division held that “having created an appearance of impropriety and partiality through her response to an inappropriate ex parte communication, the judge was obliged to step aside.” The court wisely did not order a full retrial, but retained the liability verdict in favor of plaintiff and decided de novo evidentiary issues, which had favored defense counsel. We believe the Appellate Division reached the right decision on the recusal and on the remedy.

Editorial Board Members Virginia Long, Lawrence Lustberg, Carl Poplar and Edwin Stern recused from this editorial.