The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
Months after discovery in this case was closed by Court order, and literally upon the eve of trial, plaintiff has made a number of motions. This opinion addresses them
History of the Litigation
This action arises out of an altercation between plaintiff Jonathan Smith and two New York City Police Department officers, the individual defendants Anthony Capodieci and Frederick Sherman, during the early morning hours of December 25, 1981. Smith was involved in an automobile accident. Officers Capodieci and Sherman responded to the scene. An altercation broke out between plaintiff and the officers. It is not necessary for present purposes to recite the respective parties' accounts of the incident, which differ markedly. It is sufficient to say that a scuffle ensued; plaintiff was placed under arrest by Capodieci and Sherman; plaintiff alleges that he sustained personal injuries at the hands of the two police officers; and the police officers allege that they sustained injuries at the hands of plaintiff.
Plaintiff commenced this action, alleging constitutional claims within the context of the civil rights statutes, 42 U.S.C. §§ 1981 and 1983. Plaintiff sought compensatory and punitive damages against all defendants.
The Office of the Corporation Counsel of the City of New York (hereinafter "Corporation Counsel") appeared and answered on behalf of all defendants, including the two police officers. In an answer served on September 1, 1982, the Corporation Counsel asserted counterclaims on behalf of all defendants, including counterclaims on behalf of the police officers against plaintiff for intentional assualt. issue was fully joined on April 20, 1983 when plaintiff answered the counterclaims.
At an initial pre-trial scheduling conference, on November 5, 1982, the Court had specified June 6, 1983 for the completion of all discovery. That deadline was subsequently extended to August 6, 1983. Discovery disputes arose which the Court referred to magistrate Gershon in an Order dated July 11, 1983. Magistrate Gershon advised the Court in a memorandum dated January 11, 1984 that all outstanding discovery disputes had been resolved. At a hearing on March 9, 1984, the case was marked trial ready. It was called for trial on December 17, 1984. On December 11, 1984, plaintiff noticed the first of the present motions. Other motions shortly followed.
The presently pending motions on behalf of plaintiff are as follows: (1) Motion to dismiss the individual defendants' counterclaims, or in the alternative, to disqualify the Corporation Counsel from prosecuting them. Filed December 11, 1984. (2) Motion for leave to conduct additional discovery. Filed January 2, 1985. (3) Motion for leave to amend the complaint "to assert and clarify Monell claims against the City of New York and to otherwise assert claims against the defendant officers Sherman and Capodieci," Filed February 6, 1985. I discuss these motions separately.
Plaintiff's Motion to Dismiss the Individual Defendants' Counterclaims, or in the Alternative, to Disqualify Corporation Counsel from Prosecuting them
Plaintiff asserts two grounds for his motion to dismiss the individual defendants' counterclaims, or in the alternative to disqualify the Corporation Counsel from prosecuting them. First, plaintiff argues that the pertinent statutory scheme prohibits the Corporation Counsel from rendering legal services to individuals in aid of private claims. Second, plaintiff asserts that even if the Corporation Counsel is not prohibited from such representation by statute, the ethical conflicts presented are such that the Corporation Counsel should be disqualified.
I consider these contentions in turn. Preliminarily, it is appropriate to observe that, whatever its timing, plaintiff's invocation of professional ethics must be carefully considered. Unlike motions to amend pleadings or demands for pre-trial discovery, which as noted infra may be denied because they are untimely, an allegation of unethical professional conduct triggers the Court's continuing supervisory responsibility. Dunton v. County of Suffolk, 729 F.2d 903, 908 (2d Cir. 1984). Plaintiff's contention could certainly have been made earlier, but its timing is not a factor in the Court's decision.
(a) Authority of the Corporation Counsel to Represent the Police Officers on their counterclaims
The Corporation Counsel is a creature of statute. Accordingly, in order to determine whether or not he is authorized to represent the defendant police officers on their counterclaims, one must furst turn to the applicable legislative provisions.
I begin with section 50-k of the General Municipal Law of New York State, 23 McKinney's Consol. L. of N.Y. (Supp. 1984). This statute is entitled: "Civil actions against employees of the city of New York." The statute deals generally with the defense and indemnification by the city of an employee in any civil action or proceeding in any state or federal court. Specific reference is made to actions such as this one, commenced under the federal civil rights statutes.
Section 50-k(2) deals with defense. It provides:
"At the request of the employee and upon compliance by the employee with the provisions of subdivision four of this section, the city shall provide for the defense of an employee of any agency in any civil action or proceeding in any state or federal court including actions under sections nineteen hundred eighty-one through nineteen hundred eighty-eightof title forty-two of the United States code arising out of any alleged act or omission which the corporation counsel finds occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged act or omission occurred. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the city or state or any agency of either."
Section 50-k(3) deals with indemnification. It provides:
"The city shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim approved by the corporation counsel and the comptroller, provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged damages were sustained; the duty to indemnify and save harmless prescribed by this subdivision shall not arise where the injury or damage resulted from intentional wrongdoing or recklessness on the part of the employee."
Section 50-k(4) provides that the city's duty to defend or indemnify an employee is conditioned upon delivery to the Corporation Counsel by the employee of the summons, complaint or other charging instrument within ten days of service upon the employee; and " the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the city based upon the same act or omission, and in the prosecution of any appeal."
Section 50-k(9) provides in part:
"The provisions of this section shall not be construed in any way to impair, alter, limit, modify, or abrogate or restrict . . . any right to defense and/or indemnification provided for any governmental officer or employee by, in accordance with, or by reason of, any other provision of state, federal or local law or common law."
The powers and obligations of the Corporation Counsel are also addressed by the New York City Charter and the Administrative Code of the City of New York. Section 394(a) of the Charter provides:
"Except as otherwise provided in this chapter or other law, the corporation counsel shall be attorney and counsel for the city and every agency thereof and shall have charge and conduct of all the law business of the city and its agencies and in which the city is interested."
Section 394(c) of the Charter provides:
"Except as otherwise provided in this chapter or other law, the corporation counsel shall have the right to institute actions in law or equity and any proceedings provided by law in any court, local, state, or national, to maintain, defend and establish the rights, interests, revenues, property, privileges, franchises or demands of the city or of any part or portion thereof, or of the people thereof, or to collect any money, debts, fines or penalities [sic] or to enforce the laws. He shall not be empowered to compromise, settle or adjust any rights, claims, demands or causes of action in favor of or against the city, and he shall not permit, offer or confess judgment against the city, or accept any offer of judgment in favor of the city without the previous approval of the comptroller, except that with regard to matters involving excise and non- property taxes, such previous written approval shall be obtained from the finance administrator; provided, however, that this inhibition shall not operate to limit or abridge the discretion of the corporation counsel in regard to the proper conduct of the trial of any action or proceeding or to deprive such corporation counsel of the powers and privileges ordinarily exercised in the courts of litigation by attorneys-at-law when acting for private clients."
Section 395-1.0 of the Administrative Code provides:
"The corporation counsel, in his discretion may appear, or direct any of his assistants to appear, in any action or proceedings, whether criminal or civil, which may be brought against any officer, subordinate or employee in the service of the city, or of any of the counties contained therein, by reason of any acts done or omitted by such officer, subordinate or employee, while in the performance of his duty, whenever such appearance is requested by the head of the agency in which such officer, subordinate or employee is employed or whenever the interests of the city require his appearance. The head of the agency in which such officer, subordinate or employee is employed shall submit all pertinent papers and other documents to the corporation counsel."
Plaintiff cites no case holding that, under this statutory scheme, the Corporation counsel lacks authority to represent a city employee on his counterclaim asserted in an action commenced against him. It is apparent from the motion papers that in a number of cases, the Corporation Counsel has done just that, without any lack of authority being suggested. In the one case cited to counsel and disclosed by my research in which the Corporation Counsel's authority to represent a police officer on his counterclaim was challenged, Judge Goettel held for this Court that the statutory scheme conferred such authority. henry v. City of New York and Police Officer James Delaney, 84 Civ. 2150 (GLG) (S.D.N.Y, decided August 15, 1984).
In Henry, Judge Goettel read General Municipal Law § 50-k(2) together with the New York City Charter § 394(c) to confer the necessary authority upon the Corporation Counsel. Judge Goettel noted that, in cases of this nature, the police officer's counterclaim is compulsory under Rule 13(a), F.R.Civ.P., which requires that a counterclaim be pleaded "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction." Judge Goettel derived the Corporation Counsel's authority not only from the specific provisions of section 50-k(2) in respect of defense, but also from the broad authority conferred upon the Corporation Counsel by section 394(c) of the Charter to exercise all of "the powers and privileges ordinarily exercised in the courts of litigation by attorneys-at-law when acting for private clients." He wrote at slip op. 3-4:
"Clearly, the filing of a counterclaim is a power and privilege 'ordinarily exercised in the courts of litigation by attorneys-at-law when acting for private clients' and was an act envisioned by the drafters of New York City Charter. Furthermore, Delaney has executed an agreement to reimburse his employer, New York City, for any amounts it would have to pay Henry, out of any amounts Delaney may recover on the counterclaim. Therefore, New York City can be regarded as a genuine party-in-interest to Delaney's counterclaim."
The present plaintiff contends that Henry was wrongly decided, primarily because Judge Goettel laid too much emphasis upon the compulsory nature of the police officer's counterclaim, and not enough emphasis upon the issue of Corporation Counsel's authority to prosecute it. on the latter point, plaintiff stresses that section 50-k(2) of the General Municipal Law authorizes the city to "provide for the defense of an employee . . . ." A counterclaim, plaintiff argues, cannot be regarded as "defense."
I do not agree. When a citizen asserts a claim against a police officer, the Corporation Counsel is obligated to give, and the officer is entitled to receive, a spirited, thorough, energetic and professional defense. Plaintiff does not really question that general principle; nor, under the statutory scheme, could he reasonably do so. But plaintiff's implementation of that principle into practice is strained and unconvincing. It is that Corporation Counsel may always defend, but may never counterclaim. The argument assumes that these legal postures are separate, independent, discrete, and unrelated to each other.
Trial lawyers know in their hearts that this is not a depiction of the real world. The maxim that " the best defense is often a good offense" applies to litigation as in other areas. Indeed, it is particularly applicable to a case such as the one at bar.
A fight occurs. All combatants--the soon to be plaintiff citizen and the soon to be defendant police officers--are injured.
The combatants blame each other for the incident. Plaintiff sues defendants. A jury will decide who did what to whom, when, and why. Lay jurors contemplating an injured defendant who blames plaintiff for the incident, but does not claim for his injuries, may well question the credibility of defendant's account. Trial counsel are entitled to entertain a reasonable tactical concern about that possible reaction. Counsel need not be satisfied with the trial judge's usual injunction against jury speculation. Thus the bulkhead between "defense" and "offense" (in the form of a counterclaim) is far from water-tight. On the contrary, in these circumstances a counterclaim may fairly be regarded as integral to the defense.
Given these practical realities, a plaintiff seeking to disenfranchise the Corporation Counsel from representation of a city employee on a counterclaim should be able to point to an express statutory provision denying that authority, or to provisions which by their clear implication require such a result. Neither is present in this statutory scheme.
There are no provisions dealing specifically with counterclaims. But the broad authority and responsibilities laid upon the Corporation Counsel in the General Municipal Law, the New York City Charter, and the Administrative Code all point in the direction of the Corporation Counsel's authority to do what any competent attorney would be required to do in the case. On that point, the compulsory nature of the police officer's counterclaim is a significant factor, properly recognized as such by Judge Goettel in Henry, supra. Section 394(c) of the City Charter does indeed preserve Corporation Counsel's authority--nay, his obligation--to direct " the proper conduct of the trial." or to exercise "the powers and privilege ordinarily exercised in the courts of litigation by attorneys-at-law when acting for private clients." A private attorney who failed to assert a compulsory counterclaim for an injured defendant in a case of tortious assault could reasonably expect to be sued for malpractice, brought up before the Grievance Committee, or both. I can think of no reason why Corporation Counsel should be under less demanding professional strictures. Certainly the police officer defendant's right to full scale representation is not diminished by section 50-k(a) of the General Municipal Law; on the contrary, that section secures to the defendant "any right to defense . . . for any governmental officer or employee by, in accordance with, or by reason of, any other provision of state, federal or local law or common law." As noted supra, these defendants' counterclaims are compulsory under federal law, and are embraced in any practical construction of the term "defense." Lastly, the authority granted to the Corporation Counsel by section 3951.0 of the Administrative Code to "appear" in such actions contains no implied restrictions on how he can conduct the litigation after appearing in it. I am not persuaded by plainitff's argument to the contrary, based upon principles of statutory construction which arise from inapposite fact situations.
I appreciate that asserting a counterclaim on behalf of city employees may also redound to the tactical benefits of Corporation Counsel's other client, the city itself. The more serious issue arising from that fact is that of potential conflict of interest leading to disqualification, discussed infra. I do not see that it has anything to do with the question of statutory authority.
The Corporation Counsel's policy of asserting counterclaims on behalf of police officers in section 1983 claims apparently began on or about march 25, 1982. On that date, Corporation Counsel Frederick A.O. Schwarz, Jr. addressed a letter to then Police Commissioner Robert J. McGuire, advising McGuire "of a slight modification of our defense of civil rights and assualt cases brought against police officers. . . ."
Mr. Schwarz's letter continues:
"On occasion, a case is brought against an officer, and your and our investigations reveal that the officer was himself assualted in the performance of his duties, by the plaintiff. Frequently, it is advantageous in the litigation to assert a counterclaim on behalf of the officer, both to highlight for the jury that the City is sinned against, and not the sinner, and to reduce, if not eliminate, any judgment for the plaintiff in those cases where there are mutual assaults.
"I have learned that in the past, we have generally not pleased counterclaims in these situations as it was flet that representation of an officer on an affirmative claim might be prohibited as a gift of legal services. I have concluded that since the purpose of asserting a counterclaim is to enhance the City's defense, and reduce any net judgment, there is no such prohibition."
Counsel for the present plaintiff lays great emphasis upon Schwarz's prior, self-confessed concern that such representation "might be prohibited as a gift of legal services." Those qualms, whatever their source--Schwarz does not identify the basis of the feared prohibition--are certainly not dispositive of the issue before me. One may readily accept, without citation to specific statute, that the Corporation Counsel should not further or protect, at public expense, the entirely private legal interests of city employees. However, in section 1983 actions initiated by citizen plaintiffs, Schwarz overcame his qualms because " the purpose of asserting a counterclaim is to enhance the City's defense, and reduce any net judgment." I find that reasoning entirely sufficient to justify the expenditure of public funds.
I concluded, therefore, that the Corporation Counsel has the requisite statutory authority--if not the professional duty--to assert counterclaims on behalf of police officers allegedly injured by plainitffs who bring actions for injuires allegedly wrongfully inflicted by police officers.
(b) Ethical Considerations with Respect to the Corporation Counsel's Representation of Police ...