MEMORANDUM DECISION and ORDER
Presently before the court is a dispute involving defendant Edgar Prue's choice of private counsel to represent him in this Section 1983 action, and whether the City of Syracuse is obligated to pay for the cost of an attorney selected by defendant Prue. On June 24, 1996, oral argument was heard on these issues. Letter briefs were subsequently submitted by the City and by Deperno, Khanzadian, McGrath & Lalonde ("the Deperno firm"), the firm chosen by defendant Prue to represent him. Pursuant to the court's order of August 21, 1996, the Deperno firm submitted a reply brief.
The complaint alleges that on July 16, 1994, defendants Prue and Burke, then Syracuse Police Officers, arrested plaintiff outside of plaintiff's home in Syracuse, New York. Plaintiff claims that, while driving him to the jail, the defendants stopped in a "dimly lit parking lot," where defendant Prue struck plaintiff with a "nightstick" about the legs, face and mouth. Plaintiff claims that his hands were handcuffed behind his back during the incident, and that defendant Burke did not intervene. Plaintiff further alleges that the City of Syracuse, knowing of defendant Prue's history of misconduct, failed to properly train or supervise defendant Prue.
This action was commenced, pursuant to 42 U.S.C. § 1983, on October 11, 1995. The City initially undertook the defense of defendants Prue and Burke, but subsequently advised defendant Prue that, because of a potential conflict of interest between Prue and the City, Prue should be represented by private counsel. The City provided Prue with a list of three attorneys from which Prue could choose to represent him, "and whom the City of Syracuse will reimburse for reasonable legal fees incurred in representing you in this action." Prue apparently rejected the attorneys on the list, and instead "retained" the firm of Deperno, Khanzadian, McGrath & Lalonde.
The City argues that a conflict of interest will arise if defendant Prue is represented by the Deperno law firm. According to the City, the Deperno firm "frequently represents the Syracuse Police Benevolent Association as well as individual police officers in actions and proceedings against the City," and presently represents defendant Prue in arbitration proceedings regarding Prue's January 1996 termination from the Syracuse Police force. The City seeks to have the Deperno firm disqualified from representing defendant Prue, and claims it may limit Prue's choice of private counsel. Prue argues that he is entitled to an attorney of his choice, and that the City is required to reimburse him for attorneys' fees.
1. Choice of Counsel and Reimbursement:
The City claims that it may limit Prue's choice of private counsel to those on the three-attorney list provided by the City. Prue argues that he is entitled to choose his own private counsel and still have the city reimburse him for attorneys fees.
As Prue states, section 18 of New York's public Officers Law explicitly states that an employee "shall be entitled to be represented by private counsel of his choice in any civil action or proceeding whenever the chief legal officer of the public entity . . . determines that a conflict of interest exists." N.Y. Pub. Off. Law § 18(3)(b) (emphasis added). The provisions of section 18, however, apply only to public entities whose governing bodies have "agreed by the adoption of local law . . . (i) to confer the benefits of this section upon its employees, and (ii) to be held liable for the costs incurred under these provisions." N.Y. Pub. Off. Law § 18(2)(a). The City of Syracuse has enacted a local law which is similar to Section 18 in many ways, but does not give an employee his choice of private counsel. Rather, the local law provides that "the employee shall be entitled to be represented by private counsel selected by the board of estimate of the city of Syracuse."
Syracuse, N.Y., Local Law § 12-162 (emphasis added) (City's Brief, Ex. D).
Prue argues in his reply brief that the City's local law is invalid because, by enacting Public Officers Law § 18, the state preempted municipalities from enacting legislation relating to the defense and indemnification of claims against its employees. Prue primarily relies on subsection 12 of Public Officers Law § 18 as evidence of the state's intention to preempt local legislation. Subsection 12 provides:
Except as otherwise provided in this section, benefits accorded to employees under this section shall be in lieu of and take the place of defense or indemnification protections accorded the same employees by another enactment; unless the governing body of the public entity shall have provided that these benefits shall supplement, and be available in addition to, defense or indemnification protection conferred by another enactment.
N.Y. Pub. Off. Law § 18(12). However, it is clear from subsection 2 that the state did not intend to preempt local legislation in this area. Subsection 2 limits the applicability of Public Officers Law § 18 to public entities that agree, by local legislation, to confer the section's benefits on their employees and to be liable for the costs incurred thereunder.
Prue further argues that section 18 of the Public Officers Law and section 50-j of the General Municipal Law require the City to reimburse Prue for attorney fees incurred in connection with his defense. Having found that the City's local law is not preempted by section 18 of the Public Officers Law, the court looks to the relevant provision of the local law, which provides that, "upon compliance with section 4 [section 12-164] herein the city shall provide for the defense of the employee in any civil action," which includes payment of "reasonable attorneys' fees and litigation expenses." Syracuse, N.Y., Local Law § 12-162(a), (b). Section 12-164 requires that (a) the employee deliver to corporate counsel originals of the summons, complaint, and other documents with a written request for the city to provide a defense, and (b) the employee fully cooperate in the defense of the action. If the employee "fails to or refuses to cooperate in the formation or presentation of his defense, the city may withdraw its representation upon ten (10) days' written notice to the employee." Syracuse, N.Y., Local Law § 12-164.
Section 50-j of the General Municipal Law provides only that, "upon discretionary adoption of a local law," the city shall provide for the defense of any civil action brought against a police officer. N.Y. Gen. Mun. Law § 50-j(6)(a) (emphasis added).
Prue does not directly attack the constitutionality of the City's local law. Nonetheless, the City argues that the law is constitutional, and relies upon Suffolk County Patrolmen's Benevolent Association v. County of Suffolk, 751 F.2d 550 (2d Cir. 1985). Prue claims that Suffolk does not apply to this case, because it "was decided pursuant to section 50-m of the General Municipal Law," a section which only pertains to Suffolk County. (Prue's Brief at 3-4). However, section 50-m is not mentioned anywhere in the Second Circuit's decision, and the district court opinion which Suffolk affirms explicitly addressed section 50-j. Suffolk County Patrolmen's Benevolent Association v. County of Suffolk, 595 F. Supp. 1471 (1984), aff'd per curiam, 751 F.2d 550 (2d Cir. 1985).
Similar to defendant Prue's argument in this case, the plaintiffs in Suffolk (police officers who were defendants in § 1983 actions) claimed that they had an "unfettered right to counsel of their choice . . . with the cost of such representation to be borne entirely by the . . . County." 595 F. Supp. at 1473. Suffolk County, on the other hand, had enacted a local law which required the County Attorney to present the employee with the names of three attorneys from whom the employee could choose one for representation. The plaintiffs argued that the local law restricted their right to select any counsel at County expense, a right allegedly mandated by state law. 595 F. Supp. at 1476. The court found, however, that the police officer plaintiffs had no property interest in "reimbursed representation of their choice" in a § 1983 action. 595 F. Supp. at 1477. The court noted that, although section 50-j of the General Municipal Law has been "deemed to permit reimbursement of counsel fees for an officer who has acted within the scope of his official duties," it "has not been interpreted . . . to permit officers counsel of their choice." 595 F. Supp. at 1479 (emphasis added). The court finally concluded that plaintiffs were "not entitled to select counsel of their choice at County expense as a matter of New York common law." 595 F. Supp. at 1480 (emphasis added).
Although the above statutes and case law do not provide authority for forcing defendant Prue to choose as his representative one of the three attorneys named in the City's list, they do suggest that, if Prue insists upon being represented by an attorney other than one of those approved by the City, the City will not be required to reimburse plaintiff for attorneys fees and legal expenses.
The City argues that the Deperno firm should be disqualified from representing defendant Prue to avoid the appearance of impropriety as well as a potential conflict of interest. The City claims that the potential conflict of interest arises from the fact that plaintiff is suing Prue in his official capacity as well as his individual capacity, which is tantamount to suing the municipality itself.
Thus, according to the City, the Deperno firm's de facto representation of the city in this action will pose a conflict with its representation of Prue against the City in the termination arbitration. The City further argues that it appears to be improper for the Deperno firm to accept reimbursement from the City for defending Prue in this action, while at the same time prosecuting claims against the City in other actions.
While this situation does appear to be unusual, the court finds the City's arguments to be without legal support. The court has not found any specific section of the Code of Professional Responsibility that prohibits this arrangement. Of course, the court's ruling is based on the premise that the Deperno firm will be representing only defendant Prue. The Deperno firm will not be representing the City's interests in this action, but will only be representing the individual interests of defendant Prue and defending Prue against potential personal liability. Nor will there be any "appearance of impropriety," as the City will not be required to reimburse the Deperno firm for attorneys' fees and legal expenses related to this action because, as stated in this decision, Prue does not have an absolute right to counsel of his choice.
Although the court has not heard personally from defendant Prue regarding his reasons for rejecting the three attorneys on the City's list, the court assumes that there are no further arguments to be made, and the conference contemplated in the court's order of August 21, 1996, will not be scheduled. If the court's assumption is incorrect, and there are specific reasons for rejecting the attorneys offered by the City, either defendant Prue or attorney Khanzadian must notify the court, in writing, within seven business days of the date of this order to state any objections to the three attorneys made available through the City.
Finally, the court has allowed the Deperno firm to appear on behalf of defendant Prue in the present dispute. If the Deperno firm is to continue representing defendant Prue in this action, it must file a notice of appearance, in accordance with N.D.N.Y. Local Rule 83.2, within thirty days from receipt of this decision.
WHEREFORE, based on the above findings, it is hereby
ORDERED, that the request by the City of Syracuse to disqualify the law firm of Deperno, Khanzadian, McGrath & Lalonde as counsel for defendant Prue is DENIED, and it is further
ORDERED, that the Clerk serve copies of this Order upon defendant Edgar Prue, in addition to all counsel listed under "Appearances", and it is further
ORDERED, that, within 30 days of the date of this order, one of the following options is to be completed: (1) a notice of appearance will be filed by the Deperno firm on behalf of defendant Prue, despite the court's ruling that the City of Syracuse need not pay the Deperno firm attorneys' fees or legal expenses; or (2) defendant Prue will select one of the three attorneys suggested by the City of Syracuse, and that attorney will file a notice of appearance; or (3) defendant Prue will file a notice of appearance declaring that he will proceed pro se.
If any party desires to appeal this order to a district judge, they should request a stay of the aforementioned deadlines.
Gustave J. Di Bianco
United States Magistrate Judge
Dated: September 13, 1996
Syracuse, New York