United States District Court, S.D. New York
OPINION & ORDER
J. PECK, United States Magistrate Judge.
before the Court is defendants' motion to disqualify
plaintiff Orrin Bacote's attorney, Gerald Cohen, and/or
to exclude any evidence relating to the taped phone call
between Cohen and defendant Lamont Leath. (Dkt. No. 84.) For
the reasons set forth below, defendants' motion is
DENIED in its entirety.
Riverbay Corporation operates Co-op City in the Bronx and
hires "'Special Patrolmen'" to provide
on-site security. (Dkt. No. 45: 3d Am. Compl. ¶ 7.)
Bacote alleges that he was assaulted and unlawfully arrested
by the Co-op City defendant patrolmen on February 1, 2015.
(3d Am. Compl. ¶¶ 12-18.) On March 2, 2016, Cohen
filed this 42 U.S.C. § 1983 action on Bacote's
behalf seeking damages for Bacote's alleged beating by
the defendant officers. (See generally Dkt. No. 1.)
On October 3, 2016, Riverbay's counsel first identified
Lamont Leath, a Riverbay patrolman at the scene of
Bacote's assault, as someone "involved in the
subject incident." (Dkt. No. 115: Cohen Aff. ¶ 2;
Dkt. No. 116: Cohen Aff. Ex. O at 1.) A subsequent deposition
of another defendant led Cohen to believe that Leath may have
assaulted Bacote along with other officers while Bacote was
handcuffed in a van. (Dkt. No. 100: 10/20/16 Conf. Tr. at
23-25; Cohen Aff. ¶¶ 4-6.)
Cohen informed Riverbay's counsel, Horace Rhoden, that he
intended to add Leath as a defendant, Rhoden stated that
Leath no longer worked for Riverbay. (Cohen Aff. ¶ 7.)
October 20, 2016 court conference the day before Leath was
added as a defendant, Rhoden stated that he was not prepared
to accept service on Leath's behalf. (10/20/16 Conf. Tr.
at 26; see also Cohen Aff. ¶¶
7-8.) Cohen posed the following question to Rhoden at the
MR. COHEN: . . . . I'd like to know, is Riverbay not
going to represent Officer Leath even though he's no
longer working there?
MR. RHODEN: I cannot make that decision. That decision is not
up to me. If I was to take a guess, I mean, I would believe
we would be also asked to represent him as well. That would
be my guess, but that's a decision that I cannot make. I
do not make that decision.
(10/20/16 Conf. Tr. at 27.) Leath was added in Bacote's
Third Amended Complaint filed the next day, October 21, 2016.
(See 3d Am. Compl.)
received the summons and Third Amended Complaint on November
15, 2016. (Dkt. No. 85-15: 12/7/16 Leath Aff. ¶ 2.)
Leath states: "When I received the summons and complaint
I was no longer working for Riverbay Corporation. Therefore,
I did not know that I was entitled to representation by an
attorney at the expense of Riverbay Corporation."
(Id.) Defendants state that because Leath was a
Riverbay employee at the time of Bacote's assault,
"Leath was entitled to representation through Riverbay
Corporation free of charge" through Co-op City's
union agreement. (Dkt. No. 86: Def. Br. at 4.)
to Leath, Bacote contacted him and apologized, claiming he
knew Leath "had done nothing to him." (12/7/16
Leath Aff. ¶ 3; see also Dkt. No. 85: Corchia
Aff. Ex. M: Leath Dep. at 62-63.) Leath and Bacote knew each
other from the Co-op City neighborhood, and both worked as
corrections officers during the same time period. (Leath Dep.
at 46-47, 56-57.) Bacote gave Leath the telephone
"number to his attorneys and told [Leath] to call them
to [be] removed from the case." (12/7/16 Leath Aff.
¶ 3; see also Leath Dep. at 62-63.)
and Cohen spoke "on three separate occasions."
(12/7/16 Leath Aff. ¶ 4.) Cohen informed Leath that he
"was entitled to have an attorney in this case"
(id.), although "at no time did Mr. Cohen
advise [Leath] or recommend that [he] consult with counsel
before speaking to Mr. Cohen about the" case (Dkt. No.
85-16: 1/12/17 Leath Aff. ¶ 2). According to Leath,
Cohen "promise[d]" Leath that "he would
dismiss the action" against him if he spoke to Cohen
about Bacote's assault. (12/7/16 Leath Aff. ¶ 6;
see also Leath Dep. at 63-64, 69.) "Because of
this promise, and the fact that [Leath] did not know that
[he] was entitled to an attorney paid for by Riverbay
Corporation, [Leath] went ahead and spoke to [Cohen]
concerning the events." (12/7/16 Leath Aff. ¶ 6.)
to Cohen, however, "[o]n or about November 17, 2016, Mr.
Leath contacted my office requesting to speak with me about
the lawsuit, indicating that we would dismiss the case
against him once we heard what he had to say." (Cohen
Aff. ¶ 13.) Cohen told Leath that he "could not
speak with him unless he confirmed in writing that he was
unrepresented and that he clearly understood [Cohen's]
role as plaintiff's counsel." (Cohen Aff. ¶
15.) Cohen states:
16. During that conversation, I had no substantive
discussions about the incident. Further, I did not make any
promises to Mr. Leath, nor did I indicate in any way that the
case against him would be dismissed in exchange for a
17. On the contrary, Mr. Leath was eager to speak with me
because he was convinced that the case would be dismissed
against him once I heard what he had to say.
18. In light of this, I explained to Mr. Leath that
if he committed no wrong against Mr. Bacote, or the
facts did not support a claim against him, plaintiff would
certainly dismiss the case against him.
26. At no time during any of my communications with
Mr. Leath did I ever tell him that I would dismiss the case
against him in exchange for his statement.
(Cohen Aff. ¶¶ 16-18, 26.)
sent Leath the following email prior to their discussion:
Dear Mr. Leath, I am writing to you because you recently
contacted me after we served the complaint in the
above-referenced case against you. As I mentioned on the
phone during our brief conversation, I represent Orrin
Bacote, the plaintiff, in this matter and you are now (at
least for the time being) one of the defendants in this
action. As such, our interests are directly adverse and I
cannot speak to you if you are represented by an attorney. I
understand from your communications with my office that you
are not represented by an attorney and have no intention of
engaging one. In fact you told my associate, Ilyssa Fuchs,
you plan on moving pro se. If this is the case we can speak,
but I feel compelled to inform you that I am only looking out
for the best interest of my client, Orrin Bacote. If you
still wish to speak to me after being informed of this,
please write back to this email confirming you fully
understand what I have told you and then we can speak. Thank
(12/7/16 Leath Aff. Ex. 1: 11/17/16 Emails; see
Cohen Aff. ¶ 19.) Leath responded:
Mr. Cohen, I do understand as you've explained on the
phone that you are representing Mr. Bacote the plaintiff, in
this matter and that [h]e is your sole interest[.] In
addition as I see no need for representation at this time as
I expect to be removed from this action, I've agreed to
speak freely with you as I have caused no harm to your client
and he has acknowledged as such.
(12/7/16 Leath Aff. Ex. 1: 11/17/16 Emails; see
Cohen Aff. ¶ 20.) The same day, November 17, 2016, Leath
called Cohen, who recorded the conversation without informing
Leath. (Cohen Aff.
21; Corchia Aff. Ex. K: 12/7/16 Emails.) Cohen "reviewed
several of the ethical decisions regarding the propriety of
undisclosed recording of witnesses" beforehand and
believed that he was permitted to record his discussion with
Leath. (Cohen Aff. ¶ 22.) Leath told Cohen that on the
day of the alleged assault, he witnessed multiple officers
attempting to subdue Bacote on the ground. (Cohen Aff. Ex. M:
11/17/16 Telcon. Tr. at 2.) Leath intervened and took hold of
[LEATH]: . . . . I back up towards him and I go to try and to
step on the handcuff where his hand is still moving back and
forth. I step on the handcuff. And then I get down on one
knee and that means I have one arm.
[LEATH]: That's when I start telling people "I got
his arm. Get off him. Get off him."
[COHEN]: Well what were they doing? They were just-they were
just throwing kicks and punches?
[LEATH]: In all honestly, that's where the tuning up
part had to be going on.
[LEATH]: You know I don't want to say it like that but
yeah, they're so busy trying to-they're so busy
trying to get at him.
(11/17/16 Telcon. Tr. at 2-3, emphasis added.)
November 18, 2016 conference before Judge Woods, Rhoden
stated that he knew Cohen and Leath had spoken and that
"plaintiff should refrain from any further communication
. . . with Officer Leath until an answer has been put in and
we determine whether or not we will be representing
him." (Dkt. No. 61: 11/18/16 Conf. Tr. at 7.) Cohen
Your Honor, he [Leath] called me. I explicitly told him . . .
that I am not his attorney, I represent Mr. Bacote. I asked
him if he was represented. He said he was not represented. I
said that the Riverbay Corporation might represent you if you
reach out to them. I advised him of all of the things.
I made very clear to him that I'm only looking out for
the interest of my client and not his. And he wanted to speak
(Id. at 7-8.) Judge Woods stated that he was
"not going to prohibit plaintiff from speaking
with" Leath, who might ultimately decline Riverbay's
representation. (Id. at 8-9.) "If he declines
your representation, " Judge Woods advised
Riverbay's counsel, "I don't know that there is
anything that I can do to prevent him from doing so or from
communicating with counsel for plaintiff." (Id.
November 18, 2016 court conference, Riverbay's counsel
knew that Cohen and Leath had spoken, but "defense
counsel had not yet been informed of the date of that
conversation, or of the content of that
conversation, or of the fact that Mr. Cohen had
actually secretly recorded that telephone
conversation." (Corchia Aff. ¶ 14, emphasis in
original.) On December 5, 2016, Cohen emailed Rhoden a copy
of the recording in response to Rhoden's discovery
requests. (Corchia Aff. Ex. K: 12/5/16 Email; Corchia Aff.
¶ 19; Dkt. No. 57: 12/9/16 Letter at 2; Cohen Aff.
¶¶ 27-29.) Rhoden alleges that Cohen ...