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Gilmore v. Merante

United States District Court, N.D. New York

January 10, 2018

Furman Gilmore Plaintiff,
v.
Thomas Merante, et al. Defendants.

          ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE COMPELLED TO OBTAIN SEPARATE COUNSEL

          CHRISTIAN F. HUMMEL UNITED STATES MAGISTRATE JUDGE

         On November 20, 2017, Defendants filed an Answer to the Amended Complaint and at that time, the Court was made aware that Defendants Thomas W. Buckley, Steven Burger, T. Dallas, Delaney, Gardner, William Hilscher, Thomas H. Lanphear, Jr, Thomas Merante, Cody Rockefeller, and Frank Spano are all jointly represented by Thomas K. Murphy, Esq., Murphy Burns LLP. In addition to Defense counsels' 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 the Court's duty to ensure that each Defendant in this action 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

         ORDERED as follows:

         1. If it has not already been accomplished, Defense counsel shall, within ten (10) days of the date of this Order, send a copy of this Order and a letter to each client in this action

(a) outlining the circumstances under which an actual or potential conflict of interest may arise, [1] and
(b) advising whether counsel plans to take a position adverse to that client's interests at trial.

         2. On or before February 7, 2018, a Defendant who is jointly represented with other Defendants by a single attorney or law firm shall proceed in one of the two ways described in subparagraphs A or B:

A. If, after being informed in writing of the potential or actual conflicts, a Defendant wishes to retain separate counsel, he or she may do so and new counsel shall file and serve a Notice of Appearance within sixty (60) days of the date of this Order;
OR
B. In the event that a Defendant wishes to proceed while being represented by their current counsel, I will require additional assurance that the Defendant has made an informed decision to do so notwithstanding the potential for conflict. That assurance must be provided in the form of a sworn affidavit from the Defendant
(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 has knowingly and voluntarily chosen to proceed with joint representation.
That affidavit and counsel's letter to the Defendant shall be submitted to the Chambers of the undersigned on or before February 7, 2018, after review, will be filed under seal. At the time of submission to the undersigned, the Defendant shall file and serve a ...

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