Gilmore v. Merante et al

Filing 46

ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE COMPELLED TO OBTAIN SEPARATE COUNSEL. Signed by Magistrate Judge Christian F. Hummel on 1/10/18. (Show Cause Response due by 2/7/2018) (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Furman Gilmore
Plaintiff,
vs.

Civil No. 9:16-CV-1299
(GTS/CFH)

Thomas Merante, et al.
Defendants.

CHRISTIAN F. HUMMEL
United States Magistrate Judge

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

1

The letter shall include, but not be limited to, the circumstances listed in the Attachment
to this Order.
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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 Notice of In Camera
Submission Regarding Joint Representation.
3. If a Defendant chooses to exercise the option outlined in paragraph 2(B)
above, the Court will review Defense counsel’s letter of notification and a
Defendant’s affidavit ex parte and in camera to determine if the Defendant has
knowingly and voluntarily waived his or her right to separate counsel.
4. If the Court determines that the conflict is of a nature which can be waived
and a Defendant’s waiver of the potential conflict is knowing and voluntary,
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the Court will allow the Defendant to proceed with joint representation.
5. If the Court determines that a Defendant has not knowingly and voluntarily
waived his or her right to separate counsel, the Court shall order further action
as necessary to safeguard the integrity of these proceedings.
6. A Defendant who consents to joint representation will not be deemed to
have waived his or her right to retain separate counsel. However, no extension
of deadlines established in the Uniform Pretrial Scheduling Order or of the trial
date will be granted because of such substitution of counsel unless a Defendant
establishes that the substitution resulted from a conflict of interest which
reasonably could not have been foreseen when the Defendant filed his or her
affidavit agreeing to joint representation and that the Defendant promptly
proceeded to obtain separate counsel upon learning of the conflict of interest.

IT IS SO ORDERED.

DATED:

January 10, 2018

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Attachment

Listed below are some, but not all, of the circumstances in which a conflict of
interest may arise when two or more defendants are jointly represented by a single
attorney or law firm. The list is not exhaustive but serves only to illustrate examples
of types of conflicts which may result from such joint representation. An attorney
should also advise a defendant of other possible conflicts specific to the facts of the
particular case.

1. It may be in the best interests of the government entity to assert as a defense that a
defendant was not acting within the scope of his or her employment at the time of events in issue.
However, such a defense would operate to the detriment of an individual defendant and might place
his or her defense in conflict with that of the government entity.

2. The attorney may receive information from one defendant which is helpful to one
defendant but which undermines the defense of another defendant. Where both defendants are
represented by the same attorney or law firm, the attorney-client privilege may prevent the attorney
or law firm from using that information in the defense of the defendant for whom the information
is favorable.

3. The plaintiff may offer to settle or dismiss claims against one defendant in return for
cooperation with the plaintiff’s case. If a defendant receives such an offer, a lawyer or law firm
jointly representing defendants may not be able to provide unbiased advice on whether to accept or
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reject such an offer because the acceptance of such an offer may undermine the case of other
defendants whom the attorney or law firm represents.

4. During jury selection at trial, a particular potential juror may be perceived as favorable
to one defendant but unfavorable to another. Where these defendants are jointly represented by one
attorney or law firm, the attorney must choose the interests of one defendant over those of the other
in determining whether to select or reject that potential juror.

5. In questioning a defendant during his or her testimony, an attorney who jointly represents
other defendants in the same case may be inclined to limit or eliminate certain questions where,
although the answers would be helpful to the defense of one defendant, those answers may
undermine the defense of another defendant.

6. In questioning non-party witnesses during testimony, an attorney who jointly represents
two or more defendants in the same case may be inclined to limit or eliminate certain questions
where, although the answers would be helpful to the defense of one defendant, those answers may
undermine the defense of another defendant.

7. In determining which witnesses and which exhibits to present at trial, an attorney or law
firm jointly representing two or more defendants in the same case may be inclined not to offer certain
witnesses or exhibits because, although that evidence may be helpful to the defense of one defendant,
it undermines the defense of another defendant.

8. If two or more defendants are found liable for punitive damages and a trial is held on that
issue, a lawyer or law firm jointly representing two or more defendants in the same case may be
inclined to argue to the fact finder that one defendant was less responsible or less culpable than
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another. However, while such an argument may benefit the defense of that defendant, it may
undermine the defense of another defendant who, the argument would suggest, was more responsible
or more culpable.

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