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The Appellate Division has ordered a new hearing in the case of a lawyer found in contempt and fined $1,000 after missing a phone conference and failing to appear for trial.

The objectivity of the proceedings were in doubt because the judge who accused the lawyer of contempt prosecuted the matter and presided over the hearing, the appeals court said.

Appellate Division Judges Joseph Yannotti and Heidi Currier said they could not properly review the ruling because the proceedings were not conducted in accordance with court rules, which say contempt proceedings "shall not be heard by the judge who institutes the prosecution if the appearance of objectivity requires trial by another judge," the panel noted.

Superior Court Judge Richard Wells stated at the outset of the contempt hearing that "this is willful contumacious conduct on the part of this attorney" and that "counsel blew off the trial date." Wells then allowed the defense attorney, Kevin Roe of Hackensack, to state his version of events. Roe stated that he missed the call because he was appearing in another matter in Bergen County, and that he received discovery for the first time on the eve of trial.

Yannotti and Currier ordered that a different judge handle the new contempt proceeding.

"It was only after the judge found appellant had exhibited contumacious conduct that he permitted appellant to speak and provide his version of events and an explanation of his actions. The acts of the complaining judge prosecuting and presiding over the summary hearing himself coupled with his opening conclusion that appellant had acted contumaciously calls into question the objectivity of the proceedings," Yannotti and Currier said.

The matter stemmed from an August 2017 agreement by Roe to sponsor a pro hac vice appearance by New York attorney John Russo in a criminal case in Camden County. Russo appeared in court for the client, Isidro Hernandez, several times over the next year. Then, less than a week before the June 11, 2018, trial date, Wells notified Russo that his pro hac vice application was deficient, and Russo told the judge in a phone conference that Roe would try the case. Wells then told Russo that Roe needed to enter an appearance.

A second phone conference was scheduled to discuss the problems with Russo's application and Roe's appearance. Roe was apprised of the appointment, but he was appearing in another matter in Bergen County at the time the same phone conference was scheduled, and missed the call.

After court hours, Roe left several messages on the phone system at Wells' chambers, explaining that the detention hearing he was attending ran longer than expected. Roe entered his appearance that evening and received discovery in the Hernandez case.

Neither Roe nor Hernandez appeared for trial that following Monday. Roe spoke with Wells' law clerk early that morning, but accounts differ as to what was said. Roe maintains he was expecting court staff to schedule a phone conference, in lieu of trial, because of the late production of discovery. Wells, for his part, said his staff told Roe he had to appear in court.

Yannotti and Currier said Wells erred by conducting the contempt proceeding under the caption of the criminal case, rather than as a separate case, under a caption that reads, "In The Matter of (name), Charged with Contempt of Court." Wells also failed to specify in his pleading the "acts or omissions" alleged to be contumacious, the panel said. But those errors were not material factors in the appeal, they said. But Wells erred by assuming the rule of prosecutor while also presiding over the hearing. The attorney general, the county prosecutor or a designated attorney should present the contempt charge, Yannotti and Currier said. They cited case law that recognizes the "potential for arbitrariness" when a judge acts as "complainant, prosecutor, judge and executioner" in contempt hearings, adding that "the utilization of all those safeguards ensures the appearance of objectivity."

Roe said he was pleased to be granted another hearing before a different judge.  "There was no contumacious act committed in this entire scenario," he said.

Roe said he continued to represent Hernandez after he was found in contempt, and the charges against him were ultimately dropped. Hernandez was charged with theft by deception in connection with the sale of a vehicle, but prosecutors had made a faulty identification and charged the wrong person, said Roe.