On certification to the Superior Court, Appellate Division, whose opinion is reported at 362 N.J. Super. 113 (2003).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this matrimonial matter, Richard Comparato seeks to disqualify the trial judge as well as the law firms that represent Rochelle Schait, based on the firms' employment of an attorney who formerly served as the judge's law clerk.
Comparato filed a complaint for divorce in May 1995. The parties tried the case before Judge James B. Convery from September 1997 to May 1998. In December 1998, the judge issued a fifty-two page opinion setting forth factual findings, granting the parties a divorce, and providing for alimony and equitable distribution of the marital assets. In the course of the opinion, the judge found that Comparato had dissipated certain marital assets purportedly to deprive Schait of her equitable share.
The trial court received several post-judgment applications beginning with Schait's motion to enforce litigant's right in August 1999. On September 1, 1999, Priscilla A. Jakubowski (now Priscilla A.J. Miller) began a judicial clerkship with Judge Convery. On September 24, 1999, the judge granted Schait's motion to enforce, directing Comparato to comply with certain financial obligations. In November 1999, Schait filed a second motion to enforce litigant's rights. The trial court granted that motion on February 10, 2000, finding Comparato in contempt for his failure to comply with the final divorce judgment and subsequent order. Similarly, in April 2000, Judge Convery issued a bench warrant for Comparato's arrest stemming from his alleged failure to abide by the judgment and the February 10, 2000 order. In July 2000, Comparato filed a motion to vacate or stay the prior enforcement order and bench warrant. The judge denied that motion in September 2000.
During the divorce trial and ensuing litigation, Neil Braun of Donahue, Braun, Hagan, Klein & Newsome represented Schait. In the summer of 2000, during the final months of her clerkship, Miller interviewed for a position at the Donahue firm to commence at the completion of the clerkship. The judge was informed that Miller had accepted that position. Miller's clerkship ended on August 31, 2000, and she commenced employment with the Donahue firm on September 11, 2000.
Comparato appealed the divorce judgment, claiming that Judge Convery had abused his discretion and that "virtually every issue determined by the trial judge was not only adverse to [Comparato] but adverse to the fullest extend possible and well beyond the available assets in the case." The Appellate Division affirmed most of the trial court's conclusions, remanding for further review only issues concerning equity in the marital home and distribution of credit card debt. The panel found no improper conduct or bias on Judge Convery's part. The parties then resolved all outstanding issues, including enforcement.
In January 2002, Neil Braun left the Donahue firm to form Gomperts & Braun. A month later, the Donahue firm filed a motion for an increase in alimony on Schait's behalf. Judge Convery determined that Schait had made a prima facie showing of changed circumstances, directed discovery, and ordered a hearing on the alimony question. Comparato filed a motion for leave to appeal before the Appellate Division, which denied the motion.
Miller departed the Donahue firm to work at the Gomperts firm in April 2002. In July 2002, Braun resumed his representation of Schait. Also that month, according to Miller, she had contact with Schait's matter, drafting a brief in opposition to Comparato's motion for leave to appeal. Miller next had contact with the matter in August 2002 by assisting in scheduling depositions. In September 2002, Miller made discovery requests of Comparato. Miller met Schait for the first time as her attorney on September 5, 2002.
Miller attended Comparato's deposition on September 24, 2002. During a break in the deposition, Miller mentioned to Comparato's counsel that she had been Judge Convery's law clerk. The following week, Comparato's counsel wrote to the judge, requesting that he recuse himself based on an alleged conflict created by having Miller, his former clerk, assist in Schait's representation. The judge scheduled the matter as a motion to be heard after the parties exchanged briefs. Schait's counsel responded in a letter brief arguing that no ethical breach had occurred, but nonetheless proposing to screen Miller from further involvement.
Schait testified at a deposition that she had no meetings or discussion with Miller while Miller was employed with the Donahue firm. She also stated that she had not had any discussions with Miller about how Judge Convery thinks or analyzes things. For her part, Miller stated in a certification that while a law clerk for Judge Convery, she "primarily was responsible for the court's motion calendar each motion day." Miller also certified that she had "no specific recollection of having contact with this file other than my routine involvement as a law clerk to the extent that I reviewed applications which were made to the court, attended oral arguments, and prepared orders, as with all motions heard before Judge Convery." She also stated that she "was by no means privy to any confidential information regarding this matter."
Judge Convery declined to recuse himself. The court also denied Comparato's motion to disqualify the attorneys at the Donahue and Gomperts firms, including Miller.
Comparato moved for leave to appeal before the Appellate Division, which granted the motion and then affirmed the trial court's denial of Comparato's application in all respects. Comparato v. Schait, 362 N.J. Super. 113 (2003). This Court granted Comparato's motion for leave to appeal.
After conducting a plenary hearing, the trial court resolved Schait's underlying request for increased alimony, awarding her that increase in an order dated January 5, 2004. Comparato appealed the alimony question to the Appellate Division, which appeal remains pending there. This Court granted Comparato's motion staying the trial court's January 5, 2004 order.
The limited involvement of this former law clerk in the mainly procedural motions does not warrant the disqualification of her law firms. The Court concurs with counsel's suggestion that to eliminate any potential argument regarding an appearance of a conflict, the former law clerk shall screen herself from further involvement with this litigation.
1. During the period relevant to this appeal, the rule was that a lawyer shall not represent anyone in connection with a matter in which the lawyer participated "personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person unless all parties to the proceeding consent after disclosure." RPC 1.12(a).
The rule does not define "personally and substantially." In Marxe v. Marxe, 238 N.J. Super. 490 (Ch. Div., 1989), the Chancery court held that an attorney who had clerked for a judge during a period when the court decided several motions in a matrimonial case had not participated "personally and substantially" in that case. The Marxe court noted that the legal papers submitted to the judge were public documents, suggesting that the law clerk was not privy to any confidential information about the case. The court further observed that at no time does anyone other than the judge ever decide any issue. Since Marxe appears to be the one published New Jersey decision addressing the language of the rule at issue here, fairness requires that the former law clerk's conduct be evaluated on the basis of that case. The Court is satisfied that Miller's involvement as a law clerk with earlier aspects of this litigation did not rise to the level of "personal and substantial" participation as interpreted by Marxe. (pp. 8-10)
2. There is one aspect of Marxe's analysis of the "personal and substantial" question that the Court does not embrace. The Court disagrees to the extent Marxe suggests that because a judge has decided an issue as part of a crowded docket, his or her law clerk cannot be viewed as having "substantially" participated in that decision. That a judge independently has rendered a decision in one of many cases does not foreclose a conclusion that his or her law clerk participated substantially in the matter within the meaning of RPC 1.12(a). Whether such participation has occurred ultimately depends on the circumstances in a given case. Relevant to the inquiry is whether the law clerk recommended a disposition to the judge or otherwise contributed directly to the judge's analysis of the issues before the court. (pp. 10-12)
3. It is unnecessary for the Court to engage in an extended discussion of the "appearance of impropriety" rule, RPC 1.11(b). The Court agrees with the Appellate Division that, in this narrow context, "given the permissive wording of RPC 1.12(a) in the absence of 'personal' and 'substantial' involvement, we decline to find a disqualification under the 'appearance of impropriety' standard." Even assuming that a contrary conclusion could be reached, it would be mooted by the Court's acceptance of Schait's proposal to screen Miller from continued involvement in the matter. Schait's counsel suggested such screening, not as an admission that an ethical violation had occurred, but to eliminate any potential argument in that respect. The Court concurs, and directs that Miller screen herself from any further involvement with this litigation. (pp. 12-15)
4. The Appellate Division succinctly analyzed the question of the judge's recusal, an analysis with which this Court substantially agrees. Judge Convery presumably formed the bulk of his impressions regarding this litigation after he presided over the initial trial and divorce judgment, all before Miller commenced her clerkship. There is nothing in the record to suggest that Miller's subsequent representation of Schait caused the judge to be predisposed to rule against Comparato. (pp. 15-17)
5. The Court reiterates that this holding is influenced in large measure by the text of RPC 1.12 as interpreted at the time of Miller's conduct. The Court is open to considering whether the system would be better served by a revised rule. Accordingly, the Professional Responsibility Rules Committee is directed to review RPC 1.12 to determine whether it embodies an appropriate standard. The Committee should not feel constrained by any view expressed here or in prior cases, but rather should consider whether the rule's wording should be retained or revised in light of all considerations the Committee deems relevant. (pp. 17-20) Judgment of the Appellate Division is AFFIRMED as MODIFIED.
JUSTICE ALBIN has filed a separate, dissenting opinion in which JUSTICE LaVECCHIA joins, expressing the view that the majority's narrow interpretation of what it means for a law clerk to "personally and substantially" participate in a case will undermine the appearance of judicial impartiality and the public's confidence in the fair administration of justice.
CHIEF JUSTICE PORITZ and JUSTICES ZAZZALI and WALLACE join in JUSTICE VERNIERO'S opinion. JUSTICE ALBIN has filed a separate, dissenting opinion in which JUSTICE LaVECCHIA joins. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Justice Verniero
In this matrimonial matter, plaintiff seeks to disqualify the trial judge as well as defendant's present and prior counsel, including an attorney who formerly served as the judge's law clerk. The trial court and Appellate Division each denied plaintiff's requested relief. We affirm, except that we modify the Appellate Division's judgment by directing ...