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Mercado v. City of New York

September 30, 2010

FRANK MERCADO, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF DAVID MERCADO, ET AL., PLAINTIFFS,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

OPINION AND ORDER

I. Introduction

By notice of motion dated November 20, 2009 (Docket Item 61), plaintiffs, Frank Mercado, individually and as administrator of the Estate of David Mercado, and Evelyn Mercado, move for an Order (a) disqualifying Corporation Counsel of the City of New York ("Corporation Counsel") and Heidell, Pittoni, Murphy & Bach, LLP ("HPMB") from representing defendants Patricia Jones, Ronald Goldbourne, Simflex Nyame, Prison Health Services, Inc. ("PHS"), and the City of New York ("the City")(collectively "Defendants") and (b) granting any further relief that this Court deems just and proper. For the reasons set forth below, the motion is granted in part and denied in part.

II. Background

This is a civil rights action in which plaintiffs seek damages under 42 U.S.C. § 1983, the 14th and 4th amendments to the Constitution, and the laws and constitution of New York State. Plaintiffs claim that employees of the New York City Department of Correction and Prison Health Services, while acting under color of law, were deliberately indifferent to the serious medical needs of David Mercado resulting in Mercado's suicide (Complaint, dated March 18, 2008 (Docket Item 1),("Compl.") ¶¶ 1, 2).

On December 18, 2007, Mercado was arraigned in Queens County Criminal Court where the Honorable Gene Lopez, New York City Criminal Court Judge, set bail at $2500 and ordered a suicide watch (Compl. ¶ 21; Transcript of Mercado's Arraignment, attached to Declaration of Andrew Stoll, dated November 20, 2009, ("Stoll Decl.") as Ex. 1). Mercado did not post bail and was remanded to Rikers Island on December 19, 2007 where he was examined by Dr. Yungdo Park and referred to defendant Jones, chief of the Mental Health Unit, for evaluation regarding any "suicidal ideation" (Dr. Park Mental Health Referral, dated December 19, 2007, attached to Stoll Decl. as Ex. 6). Jones testified that she assigned Mercado's mental health evaluation to defendant Nyame and informed him of Mercado's court-ordered suicide watch (Deposition of Patricia Jones at 132:3-12, dated September 29, 2009, attached to Stoll Decl. as Ex. 13 ("Jones Dep.")). Nyame, however, claims that he was not told of this court-ordered suicide watch, nor was he given the corresponding paperwork (Deposition of Simflex Nyame at 65:4-20, dated August 6, 2009, attached to Stoll Decl. as Ex. 7 ("Nyame Dep.")). Upon evaluation, Nyame concluded that Mercado's suicide watch should be discontinued (Transfer Form, dated December 19, 2007, attached to Stoll Decl. as Ex. 12). Nyame testified that he gave this evaluation to Jones with the belief that she would secure the countersignature of a psychiatrist; Jones, however, did not do so (Nyame Dep. at 11:5-12:14).

After returning to the general prison population, correction officers observed Mercado "showing signs of depression, [and] radical changes in his behavior" and referred him back to the Mental Health Unit (Investigations Division Report, attached to Stoll Decl. as Ex. 29). Defendant Goldbourne met with Mercado on this second visit. Goldbourne claims to have given Mercado's referral to Jones, who stated she would schedule an appointment for Mercado the following day (Interdepartmental Memorandum from Goldbourne to Warden G. McLaughlin, dated December 20, 2007, attached to Stoll Decl. as Ex. 30). Jones' recol- lection of Mercado's second visit to the Mental Health Unit is materially different. Jones testified that she was not present in the Mental Health Unit when Mercado arrived for the second time, and that Goldbourne had sent him back to his dorm for having a bad attitude (Jones Dep. at 172:2-173:19). The following morning, Mercado was found hanging in a bathroom (Final Report of the New York State Commission of Correction, dated December 19, 2008, attached to Stoll Decl. as Ex. 22, ¶ 27). He was taken to Elmhurst Hospital where he died on December 30, 2007 (Compl. ¶ 23). Following his death, both Nyame and Jones were disciplined by PHS for their handling of Mercado's care (Simflex Nyame Review, dated January 4, 2008, attached to Stoll Decl. as Ex. 19; Patricia Jones Review, dated January 4, 2008, attached to Stoll Decl. as Ex. 20).

Corporation Counsel, with HPMB of counsel, originally represented all defendants. Due to the defendants' contradictory recollections of events, defense counsel determined that HPMB would no longer represent Jones, who would be represented by Corporation Counsel directly (Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Disqualify Heidell, Pittoni, Murphy & Bach, LLP as Counsel, dated January 11, 2010 (Docket Item 73), ("Def's Mem. in Opp.") at 12-13). Corporation Counsel remains the "overall legal representative of all the instant defendants" (Amended Memorandum of Law in Opposition to Motion to Disqualify New York City Corporation Counsel as Counsel, dated January 11, 2010 (Docket Item 78), ("Def's Am. Mem.") at 2-3).

Plaintiffs move to disqualify both Corporation Counsel and HPMB from their representation of Jones, Goldbourne, Nyame, PHS and the City on the ground that their joint representation constitutes a conflict of interest. Specifically, plaintiffs argue that these defendants have contradictory defenses, which they have not agreed to waive, and that joint representation will deprive the individual defendants of personal defenses they could otherwise assert (Pl's Mem. at 17-24). Plaintiffs further argue that, if I find there is a conflict of interest between Jones and the other defendants, both Corporation Counsel and HPMB should be disqualified from representing the City, Nyame, Goldbourne, and PHS based on their prior representation of Jones (Pl's Mem. at 25).

Defendants maintain that there is no conflict in their joint representation because they will each assert that no defendant acted with deliberate indifference towards Mercado (Def's Mem. in Opp. at 17-18). They further argue that any conflict can be waived (Def's Mem. in Opp. at 1-2).

III. Analysis

A. Legal Standard

A motion to disqualify is "committed to the discretion of the District Court." Cole Mechanical Corp. v. National Grange Mutual Insurance Co., 06 Civ. 2875 (LAK)(HBP), 2007 WL 2593000 2007 at *4 ( September 7, 2007) (Pitman, M.J.), citing Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). Because disqualification so seriously affects a client's right to select his or her own counsel, "such relief should ordinarily be granted only when a violation of the Canons of the Code of Professional Responsibility poses a significant risk of trial taint." Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981), citing Armstrong v. McAlpin, 625 F.2d 433, 444-46 (2d Cir. 1980)(en banc), vacated on other grounds and remanded, 449 U.S. 1106 (1981); Board of Ed. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979). In view of their potential for abuse as a tactical device, motions to disqualify opposing counsel are subject to particularly strict scrutiny. See Correspondent Servs. Corp. v. J.V.W. Inv., Ltd., 99 Civ. 8934 (RWS), 2000 WL 1174980 at *14 (S.D.N.Y. Aug. 18, 2000) (Sweet, D.J.), citing Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989); Decora Inc. v. DW Wallcovering, Inc., 899 F. Supp. 132, 135 n.2 (S.D.N.Y. 1995) (Koeltl, D.J.). Courts are also reluctant to grant motions to disqualify because they inevitably result in delay and added expense. Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983) (disqualification motions "inevitably cause delay"); D.R.T., Inc. v. Universal City Studios, Inc., 02 Civ. 0958 (BSJ)(JCF), 2003 WL 1948798 at *2 (S.D.N.Y. April 23, 2003) (Francis, M.J.) (motions to disqualify "cause undue delay [and] add expense"). For all these reasons, "the Second Circuit requires a high standard of proof on the part of the party seeking to disqualify an opposing party's counsel . . . ." Kubin v. Miller, 801 F. Supp. 1101, 1113 (S.D.N.Y. 1992) (Kram, D.J.), citing Gov't of India v. Cook Indus., 569 F.2d 737, 739 (2d Cir. 1978); accord Occidental Hotels Mgmt. B.V. v. Westbrook Allegro L.L.C., 440 F. Supp. 2d 303, 309 (S.D.N.Y. 2006) (Katz, M.J.); Evans v. Artek Sys. Corp., supra, 715 F.2d 788 at 791 (same); Paramount Commc'n, Inc. v. Donaghy, 858 F. Supp. 391, 394 (S.D.N.Y. 1994) (Sweet, D.J.) (same).*fn1

It is the duty of the Court "to preserve, to the greatest extent possible, both the individual's right to be represented by counsel of his or her choice and the public's interest in maintaining the highest standards of professional conduct and the scrupulous administration of justice." Hull v. Celanese Corp., 513 F.2d 568, 569 (2d Cir. 1975). "Although disqualification motions within the Second Circuit often look to state disciplinary rules for guidance, 'such rules merely provide general guidance and not every violation of a disciplinary rule will necessarily lead to disqualification.'" Solow v. Conseco, Inc., 06 Civ. 5988 (BSJ)(THK), 2007 WL 1599151 at *3 (S.D.N.Y. June 4, 2007) (Katz, M.J.), quoting Hempstead Video, Inc. v. Inc. Village of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005). It should be noted that other circuits have shifted from a focus on trial taint to emphasizing the enforcement of ethical obligations, "squarely reject[ing] this hands-off approach in which ethical rules 'guide' whether counsel's presence will 'taint' a proceeding, holding instead that a '[d]istrict [c]court is obliged to take measures against unethical conduct occurring in connection with any proceeding before it.'" In re American Airlines, Inc., 972 F.2d 605, 611 (5th Cir. 1992), quoting Woods v. Covington County Bank, 537 F.2d 804, 810 (5th Cir. 1976) (emphasis added); Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 (5th Cir. 1980); E.F. Hutton & Co. v. Brown, 305 F. Supp. 371, 376-77 (S.D. Tex. 1969). Under both models, there are no hard and fast rules for striking the balance between enforcement of ethical rules and the preservation of client rights. Instead, "the conclusion in a particular case can be reached only after a painstaking analysis of the facts and precise application of precedent." Board of Ed. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979), citing Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 227 (2d Cir. 1977), quoting United States v. Standard Oil Co., 136 F. Supp. 345, 367 (S.D.N.Y. 1955) (Kaufman, D.J.).

B. Conflict of Interest

Plaintiffs contend that the joint representation of several of the defendants by HPMB and Corporation Counsel violates Rule 1.7 of the New York Rules ...


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