Lawyer Records a Conversation With a Defendant In a Lawsuit – Motion to Disqualify Denied

Bacote v. RIVERBAY CORPORATION, Dist. Court, SD New York 2017 – Google Scholar:

This is a security guard misconduct case in which a lawyer for the plaintiff recorded a call with one of the defendants, a police officer who was working for the defendant as a security guard. When the defendants learned of the recording, they moved to disqualify the lawyer for the plaintiff.



Before making the recording, the lawyer contacted the defendant in writing and requested a written response:


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.



The motion to disqualify is described as follows:


Defendants argue that “the conduct of Mr. Cohen is violative of at least five of New York’s Rules of Professional Conduct: Rule 3.7 (Lawyer as Witness); Rule 4.1 (Truthfulness in Statement to Others); Rule 4.2 (Communication With Person Represented By Counsel); Rule 4.3 (Communicating With Unrepresented Persons); and Rule 8.4(c) prohibiting a lawyer or law firm from `engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.'” (Dkt. No. 86: Def. Br. at 1.)



One of the main issues was whether the lawyer violated, or might potentially violate Rule 3.7. The court answered “No.” It wrote:


Rule 3.7 of the New York Rules of Professional Conduct states:

(a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:

(1) the testimony relates solely to an uncontested issue;

(2) the testimony relates solely to the nature and value of legal services rendered in the matter;

(3) disqualification of the lawyer would work substantial hardship on the client;

(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or

(5) the testimony is authorized by the tribunal.

N.Y. R. Prof’l Conduct 3.7(a).
In addressing Rule 3.7, the Second Circuit held:

Rule 3.7 lends itself to opportunistic abuse. “Because courts must guard against the tactical use of motions to disqualify counsel, they are subject to fairly strict scrutiny, particularly motions” under the witness-advocate rule. The movant, therefore, “bears the burden of demonstrating specifically how and as to what issues in the case the prejudice may occur and that the likelihood of prejudice occurring [to the witness-advocate’s client] is substantial.” “Prejudice” in this context means testimony that is “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.”

Murray v. Metro. Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009) (citations omitted). Rule 3.7 addresses the risks that “(1) the lawyer might appear to vouch for his own credibility; (2) the lawyer’s testimony might place opposing counsel in a difficult position when she has to cross-examine her lawyer-adversary and attempt to impeach his credibility; (3) some may fear that the testifying attorney is distorting the truth as a result of bias in favor of his client; and (4) when an individual assumes the role of advocate and witness both, the line between argument and evidence may be blurred, and the jury confused.” Id.
“`[D]isqualification may be required only when it is likely that the testimony to be given by [counsel] is necessary.'” Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994); accord, e.g., Williams v. Rosenblatt Sec. Inc., 14 Civ. 4390, 2016 WL 590232 at *7 (S.D.N.Y. Feb. 11, 2016); Goodwine v. City of N.Y., 15 Civ. 2868, 2016 WL 379761 at *4 (S.D.N.Y. Jan. 29, 2016); Persh v. Petersen, 15 Civ. 1414, 2015 WL 5773566 at *3 (S.D.N.Y. Oct. 2, 2015) (“[N]o disqualification should occur until it is apparent the attorney’s testimony is itself admissible and necessary because disqualification is highly prejudicial to the non-movant.” (quotations omitted)).
Defendants argue that “[i]n personally recording the conversation, plaintiff’s counsel converted himself to a potential witness in violation of Rule 3.7.” (Dkt. No. 86: Def. Br. at 11.) Cohen’s testimony, however, is not necessary in this case. Leath does not deny that it is his voice on the tape or that he made the comments at issue on the recording. (See page 7 above.) Leath explained during his deposition that his comments about the officers “tuning up” Bacote were taken out of context and that, in any event, the videotape of the incident refreshed his recollection that none of the officers used excessive force. (See id.) Defendants further claim that “Cohen used leading questions and tried to imply several times that officers of Riverbay Corporation struck and beat the plaintiff and to get Mr. Leath to agree with him.” (Dkt. No. 85: Corchia Aff. ¶ 26.) These are credibility issues that do not require Cohen’s testimony; the jury will be able to assess the weight and relevance of the recording based on the tape itself and Leath’s trial testimony. See, e.g., Hecklerco, LLC v. Yuuzoo Corp. Ltd., 15 Civ. 5779, 2016 WL 7742783 at *4 (S.D.N.Y. Dec. 16, 2016) (“Where an attorney’s testimony would be cumulative or corroborative of that provided by other witnesses, the testimony cannot be said to be necessary, and disqualification is inappropriate.”).[8] Cohen’s testimony is not necessary to establish “a significant issue of fact” because Leath has authenticated the recording and can testify at trial concerning its content. See, e.g., United States v. Tropeano, 252 F.3d 653, 661 (2d Cir. 2001); Paredes-Cordova v. United States, 03 Cr. 987, 2015 WL 1063048 at *4 (S.D.N.Y. Mar. 9, 2015); Mendez v. Int’l Food House Inc., 13 Civ. 2651, 2014 WL 4276418 at *1 (S.D.N.Y. Aug. 28, 2014); Fed. R. Evid. 901(b)(1), (5).

The court rejected all the other alleged violations because the lawyer made it clear to the witness that he represented plaintiff and that he was adverse to the defendant. He also advised him to get a lawyer and gave that advice in writing.

This is an interesting opinion because the lawyer took the time to make disclosures to the witness in writing.

Edward X. Clinton, Jr.

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