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Gabriel v. County of Herkimer

July 2, 2008

MATTHEW GABRIEL, PLAINTIFF,
v.
COUNTY OF HERKIMER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gustave J. DI Bianco, United States Magistrate Judge

ORDER

On June 27, 2008, a telephonic Rule 16 conference was held in this action. At that time, the court discussed a possible issue involving various individual County defendants who are jointly represented in the case by Thomas K. Murphy, Esq. Attorney Murphy also represents Herkimer County in this action.

In addition to defense counsel's ethical obligation to inform each client of the potential adverse consequences of joint representation, this court has a continuing obligation to supervise the bar and assure litigants a fair trial. See Dunton v. County of Suffolk, 729 F.2d 903, 908-09 (2d Cir. 1984). Accordingly, it is my duty to ensure that each defendant in this action represented by Thomas K. Murphy, Esq. fully appreciates the potential inherent conflict in joint representation of multiple defendants and understands the potential threat a conflict may pose to each defendant's interests. Id. at 909.

It is therefore hereby ORDERED as follows:

1. If it has not already been accomplished, Attorney Murphy shall within ten (10) days of the date of this order send a letter to each client*fn1 in this action a) outlining the circumstances under which an actual or potential conflict of interest may arise, and b) advising whether counsel plans to take a position adverse to that client's interests at trial. A listing of some of the ways in which such a conflict may manifest itself in an action such as this is attached to this order.

2. If, after being informed in writing of the potential or actual conflict, any defendant wishes to retain separate counsel, that defendant should notify the Court within thirty (30) days of the date of this order of the identity of counsel that will represent the party.

3. In the event that the defendants wish to proceed while being represented by their current counsel, however, I will require additional assurance that they have made an informed decision to do so, notwithstanding the potential for conflict. That assurance must be in the form of a sworn statement, authorizing representation of that party: a) acknowledging that he or she has been given written notice by counsel of the potential for conflict; b) acknowledging that he or she understands the potential conflict and its ramifications; and c) stating that he or she is authorized to, and knowingly and voluntarily has, chosen to proceed with joint representation. That affidavit, together with the letters sent in accordance with paragraph (1) above, shall be submitted to the court, directly to my chambers, within forty (40) days of the date of this order for filing under seal.

4. If defendants choose to proceed with joint representation, I will review defense counsel's letters of notification and the parties' affidavits in camera to determine if the parties have knowingly and voluntarily waived their right to separate, independent counsel.

5. If I determine that the potential conflict is of a nature which can be waived and the defendants' waiver of the potential conflict is knowing and voluntary, I will allow the parties to proceed with joint representation.

6. If I determine that the defendants have not been adequately informed or have not knowingly and voluntarily waived their right to separate, independent counsel, I will order further action as necessary to safeguard the integrity of these proceedings.

7. A party who consents to joint representation will not be deemed to have waived his or her right to retain independent counsel if an unforeseen conflict arises during the course of the litigation. The parties are hereby notified, however, that absent a change in circumstances, any waiver of the actual or potential conflict presented as a result of joint representation shall be final, for purposes of these proceedings, and they may not raise the issue prior to, or at trial.

8. Copies of this order shall be served electronically by the clerk to all counsel in this action.

ATTACHMENT

Listed below are some, but not all, of the circumstances in which a conflict of interest may arise when two or more defendants are jointly represented by a single attorney or law firm. The list is not exhaustive but serves only to illustrate examples of the types of conflicts that may result from joint representation. An attorney should also ...


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