CANON 3
A judge shall perform the duties of judicial office impartially and diligently.
RULE 3.1 Precedence of Judicial Office
The judicial duties of a judge shall take precedence over all other activities. Judicial duties include the duties of the office prescribed by law, this Code, court rule, and administrative directive.
RULE 3.2 Competence
A judge shall maintain professional competence.
COMMENT:
Competence in the performance of judicial duties requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform judges’ responsibilities of judicial office.
RULE 3.3 Judicial Independence
A judge shall be unswayed by partisan interest, public clamor or fear of criticism.
COMMENT:
A judge shall decide cases without regard to whether particular laws or litigants are popular or unpopular with the public, the media, government officials, or the judge’s friends or family. Confidence in the judiciary is eroded if judicial decision-making is perceived to be subject to outside influences.
RULE 3.4 Decorum
A judge shall maintain order and decorum in judicial proceedings.
RULE 3.5 Demeanor
A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and shall not permit lawyers, court officials, and others subject to the judge's direction and control to display impatience or discourtesy or to detract from the dignity of the court.
RULE 3.6 Bias and Prejudice
(A) A judge shall be impartial and shall not discriminate because of race, creed, color, sex, gender identity or expression, religion/religious practices or observances, national origin/nationality, ancestry, language, ethnicity, disability or perceived disability, atypical hereditary cellular or blood trait, genetic information, status as a veteran or disabled veteran of, or liability for service in, the Armed Forces of the United States, age, affectional or sexual orientation, marital status, civil union status, domestic partnership status, socioeconomic status or political affiliation.
(B) A judge shall require lawyers in proceedings before the judge to refrain from manifesting, by words or conduct, bias or prejudice on the bases specified in Rule 3.6(A), against parties, witnesses, counsel or others. This section does not preclude legitimate advocacy when the listed bases are issues in or relevant to the proceeding.
(C) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice or harassment on the bases specified in Rule 3.6(A), and shall not permit court staff, court officials or others subject to the judge’s direction and control to do so. This section does not preclude reference to the listed bases when they are issues in or relevant to the proceeding.
COMMENT:
[1] The prohibited bases in this rule are primarily drawn from the Law Against Discrimination, N.J.S.A. 10:5-1, et seq.
[2] Examples of manifestations of bias or prejudice include but are not limited to epithets, slurs, demeaning nicknames, negative stereotyping, attempted humor based on stereotypes, threatening, intimidating, or hostile acts, suggestions of connections between race, ethnicity, or nationality and crime and irrelevant references to personal characteristics. Even facial expressions and body language can convey to parties and lawyers in the proceeding, jurors, the media and others an appearance of bias or prejudice. A judge must avoid conduct that may reasonably be perceived as prejudiced or biased.
[3] Harassment is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on prohibited bases listed in Rule 3.6(A).
[4] Sexual harassment includes but is not limited to sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature that is unwelcome.
RULE 3.7 Ensuring the Right to Be Heard
A judge shall accord to every person who is legally interested in a proceeding, or to that person's lawyer, the right to be heard according to law or court rule.
COMMENT:
A judge may make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard.
RULE 3.8 Ex Parte Communications
Except as authorized by law or court rule, a judge shall not initiate or consider ex parte or other communications concerning a pending or impending proceeding.
COMMENT:
[1] This rule does not prohibit a judge from appointing an independent expert in accordance with the rules of court.
[2] The proscription against communications concerning a proceeding generally includes communications with or from lawyers and other persons who are participants in the proceeding. It does not preclude a judge from consulting with other judges on pending matters, provided that the judge avoids ex parte discussions of a case with judges who have previously been disqualified from hearing the matter and with judges who have appellate jurisdiction over the matter, or from consulting with court personnel whose function is to aid the judge in carrying out adjudicative responsibilities.
[3] A judge may initiate, permit or consider ex parte communications appropriate to service in the drug court or other similar programs.
[4] In general, settlement discussions, discussions regarding scheduling and a judge’s handling of emergent issues are not considered to constitute ex parte communications in violation of this rule.
RULE 3.9 Diligence
A judge shall dispose promptly of the business of the court.
COMMENT:
Prompt disposition of the court's business requires judges to devote adequate time to their duties, to be punctual in attending court and expeditious in determining matters before the court, and to insist that court officials, litigants and lawyers cooperate to that end. In disposing of matters promptly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay.
RULE 3.10 Judicial Statements on Pending and Impending Cases
A judge shall not publicly comment about a pending or impending proceeding in any court and shall not permit court personnel subject to the judge's direction and control to do so. This rule does not prohibit judges from making public statements in the course of their official duties or from explaining to the public the procedures of the court.
COMMENT:
[1] “Court personnel" does not include the lawyers in a proceeding before a judge. The conduct of lawyers is governed by RPC 3.6 of the Rules of Professional Conduct.
[2] This rule is not intended to prohibit a judge from discussing the facts and holdings, subject to the guidelines of the Advisory Committee on Extrajudicial Activities, in a matter that has been concluded.
RULE 3.11 Broadcasting
A judge should permit broadcasting, televising, recording and the taking of photographs in the courtroom and areas immediately adjacent thereto during sessions of court and during recesses between sessions only in accordance with the guidelines promulgated by the Supreme Court and subject to the restrictions contained therein.
RULE 3.12 Communication with Jurors
(A) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.
(B) Following the verdict, a judge may express appreciation to jurors for their service to the judicial system and the community in open court and in the presence of counsel or the parties. A judge may not have post-verdict discussions with jurors, unless those discussions are part of a hearing ordered on good cause shown pursuant to Rule 1:16-1.
RULE 3.13 Judicial Administration
A judge shall diligently discharge the administrative responsibilities of the office without bias or prejudice, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.
RULE 3.14 Supervisory Duties
A judge shall require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.
RULE 3.15 Responding to Judicial and Lawyer Misconduct
A judge has the following disciplinary responsibilities:
(A) A judge who receives reliable information indicating a substantial likelihood that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the appropriate authority.
(B) A judge who receives reliable information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority.
(C) Acts of a judge in the discharge of disciplinary responsibilities under this rule shall be absolutely privileged.
COMMENT:
Appropriate action includes notification to the Assignment Judge, the Administrative Director of the Courts, or the proper disciplinary authority.
RULE 3.16 Administrative Appointments
(A) A judge shall not make unnecessary appointments and shall exercise the power of appointment only on the basis of merit, avoiding nepotism and favoritism.
(B) A judge shall not approve compensation of appointees beyond the fair value of services rendered.
COMMENT:
Appointees of the judge include officials such as commissioners, receivers, guardians and personnel such as clerks and secretaries. Consent by the parties to an appointment or to the fixing of compensation does not relieve the judge of the obligation prescribed by this rule.
RULE 3.17 Disqualification
(A) Judges shall hear and decide all assigned matters unless disqualification is required by this rule or other law.
(B) Judges shall disqualify themselves in proceedings in which their impartiality or the appearance of their impartiality might reasonably be questioned, including but not limited to the following:
(1) Personal bias, prejudice or knowledge. Judges shall disqualify themselves if they have a personal bias or prejudice toward a party or a party’s lawyer or have personal knowledge of disputed evidentiary facts involved in the proceeding.
(2) Financial interest. Judges shall disqualify themselves if they individually or as a fiduciary have a financial interest in an enterprise related to the litigation. Subject to subparagraphs (i), (ii), (iii), and (iv) hereof, a financial interest means ownership of a legal or equitable interest, however small, or a relationship as director or advisor or other participation in the affairs of a party.
(a) Financial interest does not include:
(i) ownership of an interest in securities held by a mutual fund or common investment fund, or ownership of securities held in managed funds, provided, in respect of managed funds, that no investment discretion has been retained by the judge or the judge’s spouse, civil union partner, or domestic partner;
(ii) ownership in securities held by an educational, religious, charitable, fraternal or civic organization in which the judge holds an office;
(iii) the proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest unless there is a reasonable possibility that the value of the interest will be affected by the judge’s decision;
(iv) ownership of an interest in government securities unless there is a reasonable possibility that the value of the interest will be affected by the judge’s decision.
(3) Personal Relationships. Judges shall disqualify themselves if:
(a) the judge or the judge’s spouse, civil union partner, or domestic partner, and a first cousin or more closely related relative to either of them, or the spouse, civil union partner, or domestic partner of such relative, or to the judge’s knowledge, a second cousin or related relative to either of them, as defined below, or the spouse, civil union partner, or domestic partner of such relative, is a party to the proceeding or is likely to be called as a witness in the proceeding.
(b) the judge or the judge’s spouse, civil union partner, or domestic partner, and a first cousin or more closely related relative to either of them, or the spouse, civil union partner, or domestic partner of such relative, is a lawyer for a party.
(c) the judge or the judge’s spouse, civil union partner, or domestic partner, or any member of the judge’s family residing in the judge’s household has an interest in the litigation, including among other things, a financial interest in an enterprise related to the litigation.
(d) the judge has a social relationship with a party or the lawyer for a party of a nature that would give rise to partiality or the appearance of partiality.
(4) Prior Professional Relationships. Judges shall disqualify themselves based on their prior professional relationships as follows:
(a) In proceedings in which the judge served as a lawyer in the matter in controversy or in which the judge has been a witness or may be called as a witness;
(b) In proceedings in which a party was a former private client for whose matter the judge had primary responsibility, for a period of seven years from the conclusion of the representation. However, disqualification for a period of time in excess of seven years from the conclusion of the representation may be required. In making such a determination, a judge should consider, among other relevant factors: 1) the scope of the representation, including but not limited to the cumulative total of matters handled by the judge, whether a continuous fiduciary relationship existed with the client over an extended period of time, and the time that elapsed from the conclusion of the representation; 2) the duration of the representation; 3) the nature of the representation, including but not limited to whether it involved acrimonious negotiations or litigation, or whether any information relayed during the representation could cast doubt on the judge’s impartiality; 4) any other serious concern arising from the representation that could cast doubt on the judge’s impartiality; and 5) in respect of a corporate client, whether the principals of the entity are the same as existed during the representation.
(c) In proceedings in which a law firm involved in the matter previously represented the judge, the judge’s spouse, civil union partner or domestic partner, for a period of three years from the conclusion of the representation. Disqualification, however, for a period in excess of three years from the conclusion of the representation may be required in certain circumstances. In making this determination, a judge should consider, among other relevant factors: 1) whether the judge, the judge’s spouse, civil union partner or domestic partner maintains a professional relationship with the law firm; 2) the scope and duration of the representation; and 3) the nature of the representation, including but not limited to whether it involved acrimonious negotiations or litigation, or whether any information relayed during the representation could cast doubt on the judge’s impartiality; and 4) any other serious concern arising from the representation that could cast doubt on the judge’s impartiality.
For purposes of this rule, an insurance company that had retained the judge to defend its insureds in tort actions shall not be considered a former client of the judge.
(d) In proceedings in which a party is a governmental entity that previously employed the judge:
(i) for a period of two years following judicial appointment if the judge was employed as a state government attorney, county prosecutor or assistant county prosecutor, provided, however, that prior employment as state government attorneys with broad supervisory authority shall not disqualify judges who had no actual involvement in the matter while in government service;
(ii) for a period of five years following judicial appointment if the judge represented a local government entity;
(e) In proceedings in which the judge’s former law firm is involved, for a period of at least seven years following termination of the relationship or until all financial obligations from the law firm to the judge are satisfied, whichever is longer;
(f) In proceedings in which the judge’s former law clerk is appearing or has signed papers, for a period of six months following the termination of the clerkship.
(5) Post-Retirement Employment. Judges shall disqualify themselves if the judge has initiated contact about or discussed or negotiated his or her post-retirement employment with any party, attorney or law firm involved in any matter pending before the judge in which the judge is participating personally and substantially, regardless of whether or not the discussions or negotiations lead to employment of the judge by the party, attorney or law firm;
(6) Irrespective of the time periods specified in this rule, judges shall disqualify themselves whenever the nature of the relationship to a party or a lawyer, because of a continuing social relationship or otherwise, would give rise to partiality or the appearance of partiality.
(C) A disqualification required by this rule is not subject to the parties’ waiver. The judge shall, however, disclose to the parties any circumstance not deemed by the judge to require disqualification but which might be regarded by the parties as affecting the judge’s impartiality.
(D) A judge shall address disqualification or issues of recusal and disqualification promptly upon recognition of grounds which would give rise to partiality or the appearance of partiality.
(E) A judge shall not be automatically disqualified upon learning that a complaint has been filed against the judge with the Advisory Committee on Judicial Conduct, 12 litigation naming the judge as a party, or any other complaint about the judge by a party. If, however, after consideration by the judge whether there is a reasonable basis to question the court’s impartiality, the judge may recuse himself or herself. A judge shall promptly disclose to the parties to the pending litigation that a complaint has been filed or made.
COMMENT:
[1] Judges must be available to decide the matters that come before the court. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity and impartiality of the judiciary, unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial or unpopular issues.
[2] In determining whether disqualification is necessary, the applicable standard is as follows: Would a reasonable, fully informed person have doubts about the judge’s impartiality. DeNike v. Cupo, 196 N.J. 502.
[3] When disqualification on the basis of financial interest in an enterprise related to the litigation would be based solely on a judge’s modest ownership of publicly traded stock in an entity participating as amicus, disqualification is not required. In determining whether one’s financial interest in an entity appearing as amicus is modest, the judge should consider the value of the stock owned, the relative size of the publicly traded company, the number of shares owned relative to the number of shares traded publicly, and the length of time the shares have been held.
[4] For purposes of this rule, as with New Jersey Court Rule 1:12-1, a “first cousin or more closely related relative” includes first cousin, aunt or uncle, niece or nephew, grandparent, grandchild, child, parent, or sibling.
A “second cousin or related relative” includes a second cousin, great aunt or uncle, first cousin once removed (e.g., a first cousin’s child or a great aunt or uncle’s child), great grandparent, or grandniece or grandnephew, or great grandchild.
Judges shall keep informed about their personal and fiduciary interests and make reasonable efforts to keep informed about the personal financial interests of their spouse, civil union partner, or domestic partner, and family members residing in the judge’s household.
“Knowledge” means actual knowledge of the fact in question. However, knowledge may be inferred from the circumstances.
[5] The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge’s impartiality might reasonably be questioned under paragraph (B), or the lawyer-relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (B)(3)(c), the judge’s disqualification is required.
In making such a determination, a judge should consider, among other relevant factors: (1) the degree of relationship between the judge and the relative affiliated with the firm (e.g., sister, nephew, nephew’s spouse); (2) the closeness of the relationship between the judge and the relative; (3) whether the relative’s affiliation with the firm was known to 13 the judge without counsel making the court aware of such affiliation; (4) the size of the law firm the relative is affiliated with; (5) the relative’s role in the law firm (e.g., owner or equity interest holder, associate, intern); (6) the relative’s relationship, if any, to the lawyer in the proceeding; (7) whether the law firm represents a named party to the action, as opposed to an entity proceeding (or seeking to proceed) as amicus curiae; (8) the timing of the law firm’s commencement of participation in the proceeding; (9) whether the law firm is providing its services pro bono, if such arrangement is known by the judge; and (10) the nature of the proceedings.
Note that this comment addresses only whether a lawyer-relative renders the judge disqualified from hearing all matters involving the law firm with which the relative is affiliated. Nothing in this comment should be read to permit a judge to hear proceedings in which a lawyer in the case is related (as first cousin or closer) to the judge or the judge’s spouse, civil union partner or domestic partner.
[6] In evaluating whether a judge should be disqualified from proceedings in which a party was a former private client of the judge for a period of time in excess of seven years from the conclusion of the representation, judges should be guided by DeNike v. Cupo, 196 N.J. 502.
[7] A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this rule; judges formerly employed by governmental agencies, however, should disqualify themselves in a proceeding if their impartiality might reasonably be questioned because of the association.
[8] With regard to Rule 3.17(B)(4)(c)(ii), a municipal court judge who was a former municipal prosecutor in the same municipality may preside over local ordinance violations.
[9] A judge may not initiate contact about or discuss or negotiate his or her post-retirement employment with any party, attorney or law firm involved in any matter pending before the judge in which the judge is participating personally and substantially. A matter pending before the judge includes any matter or aspect of a matter which has not been completed, even if only the performance of a ministerial act remains outstanding, such as signing a consent order or a similar order. If the subject is raised in any fashion, the judge must put a halt to the discussion or negotiation at once, rebuff any offer, and disclose what occurred on the record in the presence of all parties and counsel. The judge, all parties and attorneys on the record should then evaluate objectively whether any further relief is needed.
A judge who engages in post-retirement employment negotiations or discussions while still on the bench with any party, attorney or law firm that does not have a matter pending before the judge, must do so in a way that minimizes the need for disqualification, does not interfere with the proper performance of the judge’s judicial duties, and upholds the integrity of the courts. A judge should delay starting any such negotiations or discussions 14 until shortly before his or her planned retirement, and should discuss post-retirement employment opportunities with the fewest possible number of prospective employers. A judge should also inform the Appellate Division Presiding Judge for Administration or Deputy Presiding Judge for Administration, his or her Assignment Judge, or the Tax Court Presiding Judge about the post-retirement employment negotiations or discussions to the extent that such negotiations or discussions will interfere with the judge’s regular assignments.
A judge should not initiate contact about or discuss or negotiate his or her post-retirement employment with a party, attorney or law firm that has in the past appeared before the judge until the passage of a reasonable interval of time, so that the judge’s impartiality in the handling of the case cannot reasonably be questioned. What is reasonable depends on the circumstances. For instance, it may be that an uncontested matter resolved swiftly by entry of a default judgment would not call for a lengthy interval of time. Prolonged or particularly acrimonious litigation may caution in favor of a longer delay. Actions likely to result in continuing post-judgment matters would also warrant a lengthier intervening period of time.
[10] The rule of necessity may override the rule of disqualification. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.
[11] The provision in Rule 3.17(C) is designed to avoid the possibility that a party or lawyer will feel coerced into consent.
Note: Adopted August 2, 2016 to be effective September 1, 2016; subparagraph (B)(4)(b) amended, new subparagraph (B)(4)(c) adopted, and subparagraphs (B)(4)(c), (B)(4)(d), and (B)(4)(e) redesignated as subparagraphs (B)(4)(d), (B)(4)(e), and (B)(4)(f) January 6, 2020 to be effective immediately; new paragraph [3] added to official comment to Rule 3.17 with former paragraph [3] renumbered as paragraph [4] and the ensuing paragraphs renumbered accordingly January 24, 2023 to be effective immediately.
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