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In re Petti

Decided: November 20, 1961.

IN THE MATTER OF CLARE R. PETTI, AN APPLICANT FOR THE ADMISSION TO THE NEW JERSEY BAR. M-176 SEPTEMBER 1960 TERM. IN THE MATTER OF DAVID H. ROTHBERG, AN ATTORNEY-AT-LAW. D-18 SEPTEMBER 1960 TERM


No. M-176: For deferment until July 1963 examination -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Schettino and Haneman. For denial of admission to examination -- Justice Hall. No. D-18: For granting reprimand -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor Schettino and Haneman. For remand -- Justice Hall. The opinion of the court was delivered by Schettino, J. Hall, J. (dissenting).

Schettino

[36 NJ Page 147] Clare R. Petti, a candidate for admission to the bar of this state, questions the Bergen County Character and Fitness Committee's refusal to grant her a Certificate of Qualification to take a bar examination. Her former

preceptor, David H. Rothberg, has been made subject to disciplinary proceedings for his part in the events upon which the Committee based its refusal.

Prior to April 1, 1958, Miss Petti became a member of the bar of New York. She was also a New Jersey Certified Public Accountant. On or about April 8, 1958 she began a clerkship under Mr. Rothberg at his Hackensack office. Appropriate papers for the commencement of the clerkship were prepared and filed.

Prior to Miss Petti's clerkship, Mr. Rothberg's only office had been in Plainfield and it remained his main office during her clerkship. Mr. Rothberg opened the Hackensack office when Miss Petti's clerkship began and closed it when she left to clerk elsewhere about a year later. His Hackensack office was a room he sublet from Miss Petti's accounting firm, Eberhart & Petti, at 214 Main Street, Hackensack.

Miss Petti applied for permission to take the bar examinations of February 5 and 6, 1959. The Committee, after examining the qualifications of the candidate, ruled on January 26, 1959 that the clerkship was not in accordance with the provisions of the rules of this court and refused to approve it. The Committee's objections were based upon the inadequate supervision which, it felt, she had received from her preceptor. It stated that Mr. Rothberg was present in the Hackensack office only two days a week and so Miss Petti had no direct supervision for 60% of the time she worked in the office. The Committee refused to certify her but it did not feel that it was necessary for her to serve a full nine months of clerkship. Rather, it recommended that she clerk under proper supervision from that date until the June 1959 bar examinations. The candidate obtained an order of this court to take the examination. She was given permission on terms, took the examination and was unsuccessful.

She thereafter applied for leave to take the bar examinations to be held on June 10 and 11, 1959. The Committee

again undertook to examine the candidate concerning the facts and circumstances of her clerkship but she subsequently withdrew her application.

Meanwhile, the committee examined her under oath on May 28, 1959. Mr. Rothberg was examined under oath on July 16, 1959 and the candidate was re-examined on September 29, 1959. The Committee on October 15, 1959, reported to this court, gave a conditional certification and also stated:

"The testimony taken in this case indicates that there was fee splitting between Miss Petti and her preceptor; that such fee splitting was probably grounded in the fact that Miss Petti was a New York attorney; that she and her preceptor denied the payments to her were fee splitting, but were compensation to her for services rendered as a clerk, although no Social Security or withholding deductions were ever made therefrom; that our Committee is uncertain whether the concealment and denial of what the Committee finds to be the true basis of the financial relationship between Miss Petti and her preceptor would justify it in refusing certification on the ground of character."

Upon being advised that Miss Petti had applied to take the bar examinations on February 25 and 26, 1960, the Committee applied to the court for instructions, based on the report and transcript it had previously filed. The court instructed the Committee to make specific findings, based upon its investigation. The Committee unanimously found and reported on February 10, 1960 that "Miss Petti does not possess the requisite character to be admitted as an attorney in this State and we therefore find adversely to her application." She was notified of this adverse finding.

She then applied to this court, which permitted her to take the examination upon condition that her mark not be disclosed until such time as the court passed upon the question of her fitness. The court also directed that Miss Petti and the Committee submit briefs, covering her questioned clerkship as well as her character and fitness.

As a result of said briefs, we remanded, by order dated May 16, 1960, the matter to the Bergen County Committee on Character and Fitness "with directions to take further

testimony from David Rothberg, Esq., and the applicant Petti with respect to whether Miss Petti was practicing law." We further provided that "The Committee is hereby constituted an ethics and grievance committee for the purpose of considering whether the said David Rothberg, Esq., permitted Miss Petti to practice law in his name or under the guise of a false (as distinguished from a merely inadequate) clerkship."

Mr. Rothberg became subject to disciplinary proceedings because of the question of a bona fide nature of Miss Petti's clerkship. In addition, he allegedly aided Miss Petti to practice law though she was not a member of the New Jersey bar, concealed and lied about his business relationship with her, and mingled his own and his client's funds and paid his own expenses from the total.

I.

ADEQUACY OF CLERKSHIP.

The Committee found her clerkship insufficient. Mr. Rothberg has had an office in Plainfield since 1948 or 1949. He was introduced to Miss Petti in 1955 or 1956. In the course of talking with her, she told him that she wanted to become a New Jersey attorney and complained that because she was a woman, she could not seem to get a law clerkship in Hackensack or thereabouts. He said he always liked the area and felt that perhaps he could do well up there. He did not recall whether it was her or his suggestion to rent one of the three rooms she and her accounting firm occupied, start a law office in Hackensack, and have her clerk for him until she passed the bar.

An oral renting arrangement was established involving the middle room and monthly payments of $50 were made sporadically. The Hackensack office had no door opening into the hall. It was necessary to enter the suite through one of the other two rooms and then cross that room to enter Mr. Rothberg's office. He hired part-time stenographic

help and an answering service received the phone calls. Clearly, the facilities were inadequate. He asserted that it was understood that he was just trying to see if it would be worth his while to maintain the Hackensack office and therefore wanted to go on an individual basis without any connection with his Plainfield office. He wanted something which could grow and if it did grow he would be very happy; if it did not grow, he had nothing to lose.

The bulk of the preceptor's practice was in Plainfield although he did testify that he averaged between two and two and one-half days a week in Hackensack. Miss Petti stated that primarily she had been in Hackensack, that she spent 60% to 70% of her time in the Hackensack office and the remainder in the Plainfield office. When Mr. Rothberg was too busy, it was requested that she go to his Plainfield office. The supervision, of necessity, was slight.

In summary, her activities were as follows: She testified that when he was not in Hackensack, he would give her specific instructions on what she was to do for him. If she had research to do, she would draft a memorandum or tell him about it orally.

If he had a matter in Bergen County Court such as a pretrial or actual trial or if he had a closing, they would go together. She helped prepare some papers with Mr. Rothberg. She sat in on several pretrials with him. She sat up at the counsel table when they were picking a jury and gave him any information he might require. She also answered the calendar call on her own. At times she would go down to Plainfield and work under his close supervision. When clients came into the Hackensack office and Mr. Rothberg was not there, she would try to take the information and arrange an appointment.

She said that her court appearances consisted of attendance in the Superior Court, both Law and Chancery Divisions, County Court and County District Court -- all in Hackensack. She also attended the federal courts in Newark and in Trenton.

Her library facilities in Hackensack for research were meager. She would have to borrow the needed books from other law offices or from the Plainfield office if they were available.

The purpose of a clerkship is to help the candidate to obtain experience in the practice of the law so that the public is assured that an attorney has received at least nine months of supervised preliminary experience before he begins his own practice. Generally R.R. 1:19-1 to 4 and R.R. 1:20-1 to 8 set forth the procedures and requirements for admission to the practice of the law. R.R. 1:20-6, entitled "Committees on Character and Fitness," sets forth the duties and powers of this very important body which performs a most valuable function, not only on behalf of the public but also on behalf of the courts. It is the duty of this Committee to investigate the clerkship and the character and fitness of all candidates for admission to the bar, resident in their county. The Committee may require of the applicant information and sources from which it may base conclusions concerning the adequacy of the clerkship and the clerk's character and fitness for the practice of law.

R.R. 1:20-7, entitled "Clerkship; Preceptors" sets forth not only the requirements for the clerk but also the duties to be performed by preceptors. The preceptor has the responsibility to see that the clerk attends the courts as well as other divisions of government, such as the Legislature, the office of the sheriff, surrogate and county clerk. Also the preceptor is required to see to it that the clerk maintains a full daily diary setting forth, in detail, a complete log of his activities as a law clerk on each business day of the clerkship. A "complete log" includes the time spent at the office and on each assignment and a brief summary of the work performed. This rule in subsection (g) expressly provides that the diary shall include a record of the days and hours spent in attendance at the courts and agencies and the names of the judges or officials presiding. One of the purposes of such detailed recording is to provide assurance

that the clerk is performing the work which gives him experience in the practice of the law.

The clerkship diaries kept by Miss Petti and supervised by her preceptor are a far cry from the fulfillment of these requirements. We agree as stated by a Committee member that the diaries are "skimpy" and we agree with the Committee that the clerkship was inadequate. In addition to the many noncompliances with the rules, we note that "absentee" preceptors necessarily tend to produce such bad results.

We find it unnecessary in the first case of its kind before us to evaluate the blame for this inadequate clerkship. However, the Committee was justified in ruling on January 26, 1959 that Miss Petti's clerkship was not in accordance with the rules.

On June 11, 1959 Miss Petti changed preceptors and clerked in another office from that date up to September 18, 1959. No question has been raised by the ...


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