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Judge Must Recuse Self If Attorney Opposes Counsel


by in Criminal Appeals

In this recent case decided on appeal, the N.J. Supreme Court held that a municipal court judge must recuse him or herself if any attorney involved in the case is opposing counsel to the judge in any other matter. Note that municipal court judges, prosecutors and public defenders are all part-time in New Jersey.

As such, they often have their own private practices. This inevitably leads to potential conflicts when their opposing counsel on a private matter appears before the judge in municipal court.

State v. Terence McCabe, ? N.J. ?, 2010 N.J. LEXIS 8 (January 25, 2010) – Denial of motion to recuse judge reversed, case remanded for proceedings before another judge. “We are asked to decide whether a municipal court judge must recuse himself when the judge and the defense attorney are adversaries in an unrelated, pending probate case that has been dormant for two years….

Because judges must avoid not only actual conflicts but also the appearance of impropriety to promote the public’s trust, we hold that part-time municipal court judges must recuse themselves whenever the judge and a lawyer for a party are adversaries in another open, unresolved case….

Although there had been no activity in the probate case for two years, Judge Nish and Mr. Albin were still adversaries in an open matter. It is not accurate to refer to the probate case as a prior matter or to their relationship as one involving former adversaries, as the State does. The facts are different. Under the circumstances here, allowing a judge to oversee a case in which the defendant’s attorney is also the judge’s adversary in another pending matter is to invite reasonable doubts about the judge’s partiality. That, in turn, raises reasonable questions in the minds of litigants and the public about the fairness of the proceedings and the overall integrity of the process. For those reasons, disqualification is required in this case.” (Alan S. Albin)

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