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The New Jersey Supreme Court has declined to write a bright-line definition to govern potential conflicts by lawyers appearing before judges they served as clerks. And absent such a definition, the court suggested, the best way to avoid trouble is for firms to screen the clerks-turned-practitioners from all work on cases they handled as clerks. That means that firms need long-term tracking systems that match lawyers with cases they may have touched as clerks, says the winning lawyer in Comparato v. Schait, A-43, decided last week. Rule of Professional Conduct 1.12(a) precludes lawyers from working on cases in which they participated “personally and substantially” as a judicial law clerk but if those lawyers are screened from participation, others in the firm can handle the case before that judge. The rule, however, does not define substantial and personal involvement, and the 4-2 majority wouldn’t define it in the decision at hand. “On its face, the ‘personal and substantial’ standard evinces a more flexible or pragmatic approach, recognizing that certain rules can be applied equitably only when the Court considers the totality of circumstances surrounding them,” Justice Peter Verniero wrote for the majority. “Because the term ‘personal and substantial’ is inexact by design, its application in some cases can be open to reasonable debate,” the court said. “In view of that reality, we trust that our former law clerks and the firms hiring them will not hesitate to employ the screening mechanism of RPC 1.12(b) to avoid the ethical disputes that sometimes materialize even when attorneys in good faith attempt to comply with existing rules,” the court said. It declined to disqualify Springfield’s Gomperts & Braun from representing a wife in a matrimonial matter before Essex County Superior Court Judge James Convery, ruling that an associate who worked on the file in 2002 hadn’t had substantial and personal involvement in the case when she worked as Convery’s clerk two years earlier. The court also rejected arguments by the lawyer for the husband, Patricia Barbarito of Denville’s Einhorn, Harris, Ascher, Barbarito, Frost & Ironson, that Convery should be disqualified and that letting Gomperts & Braun remain created the appearance of impropriety. Two dissenters who would have disqualified the firm, Justices Barry Albin and Jaynee LaVecchia, offered a bright-line definition of “substantial and personal involvement” as work that is substantive and not ministerial. Albin wrote that a bright-line rule would guide law clerks in their future employment and said his interpretation “would instill greater public confidence that the integrity of our judicial system will not be compromised.” “The majority’s opinion will invite further litigation to define the contours of personal and substantial participation,” he wrote. As they do sometimes when they can’t agree, the justices referred the question to a committee. The court asked the Professional Responsibility Rules Committee to review RPC 1.12 to determine whether it embodies an appropriate standard. And in a bow to the dissenters, the court told the committee not to feel constrained by views expressed in any case. The ethics rules governing former clerks are important in New Jersey because as many as two-fifths of each year’s graduates at the state’s three law school troop off to judicial clerkships on their way to private practice. FAMILY-LAW FIRMS MOST AFFECTED Neil Braun, who won Wednesday’s case, says ethics rulings about former clerks are particularly important to family-law firms because almost all the newly hired associates at such firms come directly from clerkships with judges the firms appear before regularly. Indeed, it’s hard to find a firm that isn’t populated by clerks to long-serving matrimonial judges like Herbert Glickman in Essex County and Melvin Whitken in Union County, Braun says. “If you look around at our community of matrimonial lawyers today almost everybody at one time or another has clerked for a judge,” he says. And sometimes a case heard 10 years earlier can resurface. “Am I supposed to remember that my partner was a clerk for that judge many years earlier?” As a practical matter, the answer is yes. The ruling means that firms must be careful to track cases to make sure lawyers are screened from matters they may have touched as judicial clerks, even if the involvement wasn’t substantial or personal, Braun says. His adversary, Barbarito, says the trouble with the ruling is that it fails to deal with client’s suspicion of bias when he or she receives an adverse ruling from a judge whose former clerk is on the other side. Those clients “will always question the objectivity” of such rulings, she says. That sense is heightened in family courts because of the raw emotions that surface in divorce and custody cases, she suggests. Barbarito’s client, plaintiff Richard Comparato, filed a divorce complaint against his wife, Rochelle Schait, in 1995 and Convery issued an opinion and granted the divorce, alimony and equitable distribution. Braun represented Schait. But the litigation continued. In 2000, Convery granted a defense motion to enforce the judgment, issued a warrant for the plaintiff’s arrest for alleged failure to abide by the judgment and denied motions to vacate a prior enforcement order. In addition, an Appellate Division remand required more litigation before Convery. Priscilla Miller, who had been Convery’s clerk from Sept. 1999 through August 2000, while the enforcement action and contempt dispute raged, went to work for Braun and in 2002 did some work on Schait’s case. When Comparato’s lawyers found out, they instituted the disqualification proceedings that culminated in Wednesday’s decision. In addition, Braun subsequently screened Miller from further involvement. What Miller did on the case when she was a clerk was central to the inquiry. She certified that although her duties included research and attendance at conferences, she was primarily responsible for motion calendars and had no recollection of having contact with the file except for routine involvement and wasn’t privy to confidential information. By the majority’s reckoning, her contact as a law clerk was insufficient to rise to the personal and substantial level. In addition, the issues before Convery when Miller was clerk — enforcement of the judgment — were distinct from the issues when Miller represented Schait (increased alimony). The substantive issues in the case are on appeal and the ruling means that any remand or continuing supervision will remain with Convery. That bothers Barbarito. She says the whole proceeding was tainted by the judge’s affiliation with Miller. “If that can’t be perceived as a problem, I don’t know what facts can,” she says. With reporting by Mary P. Gallagher.

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