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Hogan v. Higgins

August 5, 2008


The opinion of the court was delivered by: Steven M. Gold, United States Magistrate Judge

GOLD, S., United States Magistrate Judge:



Plaintiffs Shanair and Tyniera Hogan bring this action pursuant to 42 U.S.C. § 1983 alleging claims against Police Officers William Higgins and Thaddeus Niksa. Plaintiffs were arrested on July 12, 2003, and claim, among other things, that they were arrested without probable cause and subjected to excessive force. The underlying facts are set forth in detail in a Memorandum and Order denying motions for summary judgment issued on March 12, 2007 by United States District Judge Joseph F. Bianco, Docket Entry 50, and are not repeated here.

Defendants Higgins and Niksa now move to disqualify the lawyers of the firm of Cobb and Cobb from representing plaintiffs in this action. I held a hearing on the motion, at which plaintiffs were present, on July 30, 2008. For the reasons stated below, the motion is denied.


Defendants' motion is based upon a letter dated May 23, 2008 from Stephen S. Cobb, a paralegal with the firm of Cobb and Cobb, to Sean Banks. Banks was apparently present at or about the time when plaintiffs were arrested and witnessed events pertinent to this case. Banks was deposed by defendants' counsel on June 17, 2008. Declaration of John W. Burns ("Burns Decl.") ¶ 9. Banks had previously provided a statement concerning plaintiffs' arrest to the New York City Police Department Internal Affairs Bureau ("IAB"). Affidavit of Stephen Cobb, Ex. 7.

The letter that forms the basis of the pending motion was provided to defendants' counsel by Banks during the course of his deposition. Burns Decl. Ex. D at 22. The letter states in pertinent part as follows:

We would like to have you available as a trial witness, if possible, just to say that you never saw Shanair and Tyniera fighting back with the police, and that they were not raising a ruckus or creating any kind of disturbance. In your IAB interview, which I have enclosed, you stated that "it was total chaos" and "things were really out of control." You don't really want to say that, because it makes it look like the cops were justified in taking strong action against the girls, or that the girls started the whole thing. What you want to say is that "many people were upset by the police action but the girls were not doing anything to stir up the crowd" and "the situation was loud but under control." In other words, play down the "chaos" aspect, and just emphasize that the girls were being mistreated and that the bystanders were being vocal. Also emphasize that there was no danger to the police officers, and that nobody was attacking the police or trying to stir up the crowd to do so.

Burns Decl. Ex. E (emphasis in original). At his deposition, Banks acknowledged having received and read the letter prior to testifying. Burns Decl. Ex D at 25.


Defendants argue that disqualification is warranted because, as a result of the letter sent by Stephen Cobb to Sean Banks, the attorneys at Cobb and Cobb have become witnesses and have developed a conflict of interest with the plaintiffs. The conduct of lawyers appearing before this court is governed by the New York Code of Professional Responsibility. Local Civil Rule 1.5(b)(5). As defendants point out, the New York Code generally prohibits an attorney from representing a client when his exercise of professional judgment on the client's behalf will be affected by his own interests, or from acting as an advocate in a case where he will be a witness. DR 5-101, 5-102.*fn1

The principles governing motions to disqualify, and in particular the caution with which a court must proceed before granting such a motion, were recently set forth in Intelli-Check, Inc. v. Tricom Card Techs., Inc., 2005 WL 3533153 (E.D.N.Y. Dec. 22, 2005), as follows:

Motions to disqualify opposing counsel are generally disfavored under Circuit law because they are often filed for tactical reasons and result in unnecessary delay, and they pose the threat of an immediate adverse effect on the client by separating him from counsel of his choice. Thus, a court has the authority to disqualify counsel, upon close scrutiny of the facts, only "where necessary to preserve the integrity of the adversary process." The movant bears "a heavy burden" of showing that disqualification is warranted. With certain exceptions not applicable here, disqualification has been found necessary to avoid tainting the trial only where attorney conflict of interest violative of Canons 5 and 9 of the Code of Professional Responsibility undermines the court's confidence in the attorney's ability to vigorously represent his client, or where an attorney is in a position to use privileged information obtained during prior representation of the other ...

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