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The recent revelation that a Middlesex County judge was privately discipline twice for making inappropriate comments before facing public censure for similar conduct has raised questions about the effectiveness of the judiciary's reliance on confidential discipline of judges.

Despite Alberto Rivas' apparent failure to mend his ways as a result of the two previous private reprimands, lawyers say the current rules behind the state's discipline process largely work.

"The first private reprimand should be enough of a warning to a judge that she or he needs to be very careful with the way that they conduct themselves," said Bennett Wasserman, who is vice president and general counsel of Legalmalpractice.com. "Anything that undermines public confidence in the judiciary is harmful to the entire judiciary and the administration of justice."

In seeking a censure of Rivas for his "discourteous" manner with litigants in a January 2019 hearing, the Advisory Committee on Judicial Conduct disclosed he was issued private reprimands in 2013 for his conduct in two cases, and in 2014 for his conduct in a single case.

In its presentment, the ACJC said Rivas' conduct in the latest case was "aggravated considerably" by his receipt of the two earlier reprimands.

Rivas has expressed regret for his comments in the recent case, and admitted to letting his personal feelings influence his language, tone and demeanor. The charges stem from comments he made in connection with a dispute involving a husband and wife, and the husband's girlfriend over possession of nude photos of the girlfriend.

Rivas called the nonparty husband "despicable," urged his wife to divorce him, and told the girlfriend she should sell the photos to Hugh Hefner.

Rivas, who is self-represented in the disciplinary case, did not respond to a message left at his chambers concerning the private discipline.

Court rules allow the ACJC to impose private discipline against judges in the form of a reprimand or censure, or to recommend public discipline. Suspensions or removal of judges by the state Supreme Court, on recommendation of the ACJC, are not confidential.

ACJC spokeswoman Mary Ann Spoto said private discipline is reserved for less serious matters. "There is no policy concerning the number of times a judge may receive private discipline," she said. "The decision to issue private or public discipline is dependent on the findings in each case."

Michael Ambrosio, who teaches professional responsibility at Seton Hall University School of Law, said he can't imagine any judge receiving more than two instances of private discipline. While court rules don't place a limit on the number of times a judge can receive private discipline, Ambrosio said he sees no need to add one.

"It's not a perfect system but our court has been very responsible dealing with misbehavior by judges and lawyers," said Ambrosio, who has represented judges before the ACJC.

Ambrosio calls the conduct that prompted Rivas' current complaint "outrageous," and said he expects the judge to be censured.

The purpose of private discipline, Ambrosio said, is to help maintain public confidence in the judiciary. Based on his dealings with the ACJC on behalf of clients, Ambrosio said there's no reason to think the committee coddles judges. If the lawyer's conduct is not egregious, a private censure is thought to be sufficient to prevent the problem from recurring. A confidential reprimand effects the judge's "sense of legacy" and is "a serious mark on our escutcheon," Ambrosio said.

Donald Scarinci, managing partner at Scarinci & Hollenbeck in Lyndhurst, says the private discipline system fulfills a purpose, even though it failed to cure Rivas of his problems dealing with the public.

"The private reprimand allows the judiciary to police itself and to recommend corrective action when necessary without undermining the integrity of the system as a whole, and without damaging the reputation and authority of an individual judge," Scarinci said.

In addition, some cases involve privacy issues of individual litigants or other individuals whose rights must be protected, and to disrespect those rights could undermine the process, Scarinci said.

Morristown attorney Marc Garfinkle, who represents lawyers in ethics proceedings, says the lack of a standard for delineating when a judicial discipline case should be public "clearly leaves room for the ACJC to hide information from the public, if it is so inclined."

But Garfinkle also finds merit to the private discipline option. "Certainly a big concern is that more harm than good can devolve from the publication of a minor misconduct," Garfinkle said.

"Although we can never know which matters were kept private, and whether more good than bad resulted from that decision, we have to trust that the ACJC acts in good faith, and with integrity and consistency—in making this determination.  As long as Justice Long [former Supreme Court Justice Virginia Long] chairs that committee, I will not worry about that for an instant," he said.