Goodwine v. Lee

Filing 116

OPINION AND ORDER re: 109 MOTION that the Original Motion to Disqualify and its Supporting Papers br Granted in its Entirety filed by Gregory A. Goodwine, Sr., 98 MOTION to Disqualify filed by Gregory A. Goodwine, Sr. For the reasons abo ve, petitioner has failed to establish that the DA's Office should be disqualified from representing respondent in this matter. Therefore, petitioner's motion to disqualify is DENIED. The Clerk of the Court is respectfully directed to termi nate the outstanding motions at docket entries 98 and 109. Respondent is directed to file the opposition to petitioner's motion to amend, as well as the proposed amended petition, within sixty (60) days of the date of this Opinion and Order. SO ORDERED. (Signed by Magistrate Judge Lisa Margaret Smith on 9/3/2014) Copies Sent By Chambers. (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Gregory A. Goodwine, Sr.,
Petitioner,
10cv6019 (VB) (LMS)
- against Superintendent William Lee,

OPINION AND ORDER

Respondent.
Lisa Margaret Smith, U.S.M.J.1:
Petitioner Gregory Goodwine, proceeding pro se, has filed the instant habeas corpus
petition challenging the constitutionality of his state court conviction pursuant to 28 U.S.C. §
2254. Docket Entry #1, Petition. Now before the Court is petitioner's motion, dated December
23, 2013, to disqualify the Westchester County District Attorney's Office (hereinafter "the DA's
Office") from representing respondent in this matter. Docket Entry #98, Motion to Disqualify.
For the reasons stated below, the motion is denied.
I.

Allegations of Wrongdoing
By the instant motion, petitioner seeks an order "[d]isqualifying the Westchester County

District Attorney's Office and its Assistant District Attorney's [sic] from representing respondent
in the above-captioned matter, upon the grounds of misconduct, actual prejudice and a clear
conflict of interest . . . " Docket Entry #99, Affirmation at 1. He asks the Court to appoint
private counsel (as a "special prosecutor") to represent respondent going forward in this habeas
corpus proceeding. See id. Petitioner also asks the Court to hold an evidentiary "hearing to
examine the extent and effect of the misconduct, actual prejudice and the conflict of interest

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This matter has been referred to me pursuant to 28 U.S.C. § 636 for habeas corpus
purposes. Docket Entry #4, Order of Reference.
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created by the Westchester County District Attorney's Office . . . " Id.
The DA's Office prosecuted petitioner in the underlying criminal proceeding. Petitioner
asserts that the Assistant District Attorney (hereinafter "the trial ADA") who handled the matter
violated his ethical duties, as set forth in the New York State Rules of Professional Conduct
(hereinafter "NYRPC"). According to petitioner, the trial ADA continues to engage in unethical
behavior, interfering with petitioner's ability to litigate the instant habeas petition. The NYRPC
similarly govern the behavior of attorneys practicing in the courts of the United States District
Court for the Southern District of New York. Local Civil Rule 1.5(b)(5).2 Petitioner asks the
Court to disqualify the entire DA's Office from representing respondent in this proceeding based
upon the trial ADA's purported ongoing violations of the NYRPC. Docket Entry #99,
Affirmation at 1.
Petitioner details the alleged improper behavior of the trial ADA in the underlying
criminal matter. He explains that after bail was set following his initial arrest, the trial ADA
took steps to ensure that he remained incarcerated during the pendency of the criminal case.
Specifically, petitioner claims that the trial ADA "improperly pressured" petitioner's parole
officer into issuing a parole warrant against petitioner, thereby preventing petitioner's pre-trial

2

Local Civ. R. 1.5(b)(5) provides that an attorney admitted to practice in the Southern
District of New York may be disciplined, or other relief may be awarded, when
[i]n connection with activities in this Court, any attorney is found to have engaged
in conduct violative of the New York State Rules of Professional Conduct as adopted
from time to time by the Appellate Divisions of the State of New York. In
interpreting the Code, in the absence of binding authority from the United States
Supreme Court or the United States Court of Appeals for the Second Circuit, this
Court, in the interests of comity and predictability, will give due regard to decisions
of the New York Court of Appeals and other New York State courts, absent
significant federal interests.
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release on bail. Id. According to petitioner, the trial ADA secured the parole warrant by falsely
informing the parole officer that the victim of the underlying crime had identified petitioner as
the culprit, and that petitioner would likely harm the victim if he was released on bail. See id.
Petitioner states that the trial ADA obtained an order compelling petitioner to participate
in a post-arrest line-up identification procedure. According to petitioner, the trial ADA obtained
such order by falsely informing the state court, through an affidavit, that the victim had
identified petitioner as her assailant during a prior photo-array identification procedure. Id. at 2.
According to petitioner, the trial ADA also obtained an indictment against petitioner
through fraud. He first claims that the trial ADA knowingly presented falsified evidence to the
grand jury. Id. Petitioner also alleges that the indictment against him, which he asserts was filed
by the trial ADA, was actually a counterfeit that contained forged signatures of the grand jury
foreperson and the Westchester County District Attorney. See id. at 3.
Petitioner finally claims that the trial ADA has interfered with his ability to litigate the
instant habeas petition. Petitioner has apparently hired a private investigator, and he asserts that
the trial ADA has prevented the investigator from interviewing the victim of the underlying
crime. Id.
II.

Discussion
Petitioner seeks to disqualify the DA's Office on two grounds. He avers that the trial

ADA will be an essential witness at a desired evidentiary hearing on his habeas petition, and that
the trial ADA's testimony will be prejudicial to respondent, thus presenting a conflict of interest
for the entirety of the DA's Office. Petitioner therefore seeks to disqualify the DA's Office on
the basis of the witness-advocate rule, codified in NYRPC 3.7. Docket Entry #99, Affirmation
at 6. Petitioner also generally argues that the interests of the DA's Office are in conflict because,
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besides representing respondent, it has a diverging interest in concealing the allegedly-improper
behavior of the trial ADA. He argues that the DA's Office has a "vested interest in covering-up
[sic] and maintaining the wrongful and unconstitutionally obtained conviction of an innocent
accused." Id. at 7.
In opposition to the motion, respondent, in a brief drafted by an employee of the DA's
Office, basically claims that petitioner's allegations of improprieties by the trial ADA are false,
and that petitioner has not met the burden necessary to disqualify the DA's Office from
representing respondent. Docket Entry #106, Memo. of Law at 7.
A.

Standard for Disqualification of Counsel
Disqualification of a party's lawyer invades the sanctity of the attorney-client relationship

because it limits the client's ability to freely select his or her own counsel; consequently, it is
disfavored in the Second Circuit. Evans v. Artek Sys. Corp., 715 F.2d 788, 791 (2d Cir. 1983).
Because motions to disqualify counsel are "often interposed for tactical reasons," id. at 791
(internal quotation marks and citation omitted), they are subject to a "high standard of proof."
Id. (internal quotation marks and citation omitted); see NL Indus., Inc. v. PaineWebber Inc., No.
88cv8602 (MBM), 1990 WL 43929, at *1 (S.D.N.Y. April 9, 1990) (The "party seeking
disqualification must bear a heavy burden of proof in order to prevail. Mere speculation will not
suffice."). The disqualification of an attorney "is a matter committed to the sound discretion of
the district court." Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990).
B.

Witness-Advocate Rule
Rule 3.7 of the NYSRPC – former Disciplinary Rule 5-102 – governs situations in which

an attorney may be called as a witness, and it is commonly referred to as the "witness-advocate
rule." Rule 3.7(a) sets forth the restrictions concerning when an attorney may act as an advocate
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in a matter in which he or she is likely to be a witness. Rule 3.7(b), which concerns when an
attorney may act as an advocate in a matter in which another attorney in his or her organization
will serve as a witness, provides that "[a] lawyer may not act as advocate before a tribunal in a
matter if: (1) another lawyer in the lawyer's firm is likely to be called as a witness on a
significant issue other than on behalf of the client, and it is apparent that the testimony may be
prejudicial to the client . . . "
Rule 3.7(b) is deferential to the attorney-client relationship because a "tribunal is not
likely to be misled when a lawyer acts as advocate before a tribunal in a matter in which another
lawyer in the lawyer's firm testifies as a witness. " Comment 5 to NYRPC 3.7. "Accordingly,
disqualification by imputation should be ordered sparingly, and only when the concerns
motivating the rule are at their most acute." Murray v. Metropolitan Life Ins. Co., 583 F.3d 173,
178 (2d Cir. 2009). To prevent their use as litigation tactics, " 'motions to disqualify counsel . . .
are subject to fairly strict scrutiny, particularly motions' under the witness-advocate rule." Id.
(quoting Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989)). Specifically, the Second
Circuit has held that "a law firm can be disqualified by imputation only if the movant proves by
clear and convincing evidence that (A) the witness will provide testimony prejudicial to the
client, and (B) the integrity of the judicial system will suffer as a result." Id. at 178-79.
To qualify as "prejudicial" within the meaning of the witness-advocate rule, "the
projected testimony of a lawyer or firm member must be sufficiently adverse to the factual
assertions or account of events offered on behalf of the client, such that the bar or the client
might have an interest in the lawyer's independence in discrediting that testimony." Lamborn,
873 F.2d at 531 (internal citations and quotation marks omitted). A party moving to disqualify
another party's counsel under NYRPC 3.7(b) "bears the burden of demonstrating specifically
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how and as to what issues in the case the prejudice may occur and that the likelihood of
prejudice occurring is substantial." Id. (internal quotation marks and citation omitted).
Courts within this District have further held that disqualification under Rule 3.7(b) is
appropriate only when the attorney's testimony is necessary. See Ross v. Blitzer, 09cv8666
(HB), 2009 WL 4907062, *2 (S.D.N.Y. Dec. 21, 2009) (citation omitted) (denying motion to
disqualify firm because movant did not show that attorney's testimony was necessary); see also
Finkel v. Frattarelli, 740 F.Supp.2d 368, 374 (E.D.N.Y. 2010). "Testimony may be relevant and
even highly useful but still not strictly necessary." S & S Hotel Ventures Ltd. Partnership v. 777
S. H. Corp., 69 NY2d 437, 446 (1987) (Opn. by Kaye, J.). "A finding of necessity takes into
account such factors as the significance of the matters, weight of the testimony, and availability
of other evidence." Id.
Here, petitioner has failed to meet his burden in several respects. First, the relevance of
the trial ADA's alleged unethical behavior is questionable because "not every violation [of the
NYSRPC] is co-extensive with a defendant's due process rights." Plato v. Poole, 06cv6559
(BMC), 2008 WL 22267, *3 (E.D.N.Y. Jan. 25, 2008).
Even assuming, purely for the purposes of this argument, that the allegations of
wrongdoing by the trial ADA are relevant to petitioner's habeas petition, an examination of the
parties' submissions suggests that an evidentiary hearing may not be necessary, thus obviating
the concern that the trial ADA will be required to give testimony. Rosefield v. Orentreich,
98cv2721 (TPG), 1998 WL 567750, *5-6 (S.D.N.Y. Sept. 4, 1998) (disqualification not
warranted because it was not clear that the matter would go to trial or that the attorney would be
required to testify); NL Industries, Inc. v. Painewebber Inc., 88cv8602 (MBM), 1990 WL 43929,
*1 (S.D.N.Y. April 9, 1990) (motion to disqualify denied, in part because the need for counsel to
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testify was merely speculative at the time of the motion).
In the event that an evidentiary hearing is necessary, petitioner has not established that
the trial ADA would be a necessary witness because he has not shown that the trial ADA's
purported unethical behavior cannot be established through evidence other than the trial ADA's
own testimony. For instance, petitioner has not explained why he cannot prove that the trial
ADA "improperly pressured" petitioner's parole officer into issuing a parole warrant through the
testimony of said parole officer. In addition, it appears that petitioner could attempt to prove,
through the testimony of the victim, that the trial ADA submitted to the state court a false
affidavit in which the trial ADA stated that the victim had identified petitioner in a photo array.
Similarly, petitioner has not shown why he could not call the victim to testify that she had been
pressured by the trial ADA into remaining silent on petitioner's purported innocence. It seems
that the victim's prior statements to petitioner's investigator could be established through the
testimony of either the victim or the investigator. It also appears that the alleged falsity of the
signatures on the indictment could be established through the testimony of the grand jury
foreperson and the former Westchester County District Attorney. Petitioner fails to show why
any of the aforementioned sources of evidence would be unavailable or inadequate substitutes
for the testimony of the trial ADA at a hearing. Therefore, petitioner has not claimed or proven
that the trial ADA's testimony would be necessary at an evidentiary hearing, and, consequently,
disqualification of the DA's Office is not warranted on such basis. See Solow v. Conseco, Inc.,
06cv5988 (BSJ) (THK), 2007 WL 1599151, *4 (S.D.N.Y. June 4, 2007) ("The rule requires that
a lawyer's testimony be necessary, not simply that it be the best evidence, and to that end, courts
deem a lawyer's testimony necessary only if there [are] no other witnesses to the circumstances
at issue." (internal quotation marks omitted) (alteration in original)); Shabbir v. Pak. Int'l
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Airlines, 443 F.Supp.2d 299, 308 (E.D.N.Y. 2005) ("[A] lawyer who could provide only
cumulative testimony may act as trial counsel." (citation omitted)); Kubin v. Miller, 801 F.Supp.
1101, 1113 (S.D.N.Y. 1992) ("[A]n attorney whose testimony would merely corroborate the
testimony of others may not be subject to disqualification.”); Stratavest Ltd. v. Rogers, 903
F.Supp. 663, 668 (S.D.N.Y. 1995) ("Having failed to demonstrate that [the attorney] is a
necessary witness, there is no reason to consider the disqualification of [the law firm] at this time
. . .").
C.

Conflict of Interest
Petitioner also argues that the DA's Office should be disqualified because it has a "vested

interest in covering-up [sic] and maintaining the wrongful and unconstitutionally obtained
conviction of an innocent accusad [sic]." Docket Entry #99, Affirmation at 7. Petitioner further
claims that the Assistant District Attorney litigating the instant habeas petition "has
acquiescenced [sic] to the prejudicial misconduct instituted by [the trial ADA] prior to and
during the grand jury and trial jury [sic] proceedings." Id.
Typically, a court will only disqualify an attorney on the basis of a conflict of interest
when it "undermines the court's confidence in the attorney's representation of his [or her ]client."
Solow, 2007 WL 1599151 at *3. Here, petitioner's claims of a conflict of interest are nothing
more than conclusory allegations that the current attorney in the matter cannot adequately
represent respondent. They are without any basis in the record, and they lack merit. See Sea
Tow Int'l, Inc. v. Pontin, 06cv3461 (SJF) (ETB), 2007 WL 4180679, *6 (E.D.N.Y. Nov. 19,
2007) ("Such conclusory assertions amount to nothing more than sheer speculation as to the
existence of a conflict of interest. If anything, such assertions merely bolster the argument that
this motion is being made solely to achieve a strategic advantage in this litigation. As such, they
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fail to provide a basis for [counsel's] disqualification."); Cadle Co. v. Damadeo, 256 F.Supp.2d
155, 157 (E.D.N.Y.2003) (denying motion to disqualify where movant provided "only
conclusion allegations" as evidence of conflict of interest).
III.

Conclusion
For the reasons above, petitioner has failed to establish that the DA's Office should be

disqualified from representing respondent in this matter. Therefore, petitioner's motion to
disqualify is DENIED. The Clerk of the Court is respectfully directed to terminate the
outstanding motions at docket entries 98 and 109. Respondent is directed to file the opposition
to petitioner's motion to amend, as well as the proposed amended petition, within sixty (60) days
of the date of this Opinion and Order.

Dated: September __, 2013
White Plains, NY

SO ORDERED,

LISA MARGARET SMITH
United States Magistrate Judge
Southern District of New York

A copy of the foregoing Opinion and Order has been sent to the following:
Gregory A. Goodwine, Sr.
05-A-4066
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582

John M. Collins
Westchester County District Attorney
111 Dr. Martin Luther King, Jr. Blvd.
White Plains, NY 10552
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