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Bacote v. Riverbay Corp.

United States District Court, S.D. New York

March 10, 2017

ORRIN BACOTE, Plaintiff,
RIVERBAY CORPORATION, et al., Defendants.

          OPINION & ORDER

          ANDREW J. PECK, United States Magistrate Judge.

         Presently 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.


         Defendant 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.)

         When 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.)

         At an 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 conference:

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.)

         Leath 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.)

         According 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.)

         Leath 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.)

         According 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 statement.
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.)

         Cohen 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 you.

(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.)[1] Leath intervened and took hold of Bacote's arm:

[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.
[COHEN]: Okay.
[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.
[COHEN]: Okay.
[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.)

         At a 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 replied:

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 to me.

(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. at 8.)

         At the 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 ...

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