When New York Lawyers Try To Defend The Indefensible

In slamming attorneys from the Corporation Counsel (the agency charged with defending New York City against various legal claims) for deliberately withholding critical information to a civil rights case, a federal judge from the Southern District of New York stated as follows:

"I think it plain that Corporation Counsel's conduct cannot be excused. The able Assistant Corporation Counsel who argued the case, and was not involved in the underlying facts, had the unenviable task of defending the indefensible. The papers submitted by Corporation Counsel on its own and the NYPD's behalf seek to justify the failure to notify Counsel and the Court of the rescission of the Order being litigated by describing internal discussions and perceptions, and by contentions that certain impressions should have been formed from communications that were exchanged. This is not good enough. Such rationalizations entirely disregard Corporation Counsel's professional obligation as officers a/the Court to notify their adversaries and the Court that Interim Order 47, the focal point of the ongoing litigation, had been rescinded. That is not an onerous obligation.

"Corporation Counsel's conduct in keeping mum about this event of central importance, and continuing the litigation as if it had not occurred, multiplied the proceedings unnecessarily and therefore unreasonably."

In opposing the plaintiffs' attorneys' application seeking sanctions, including to recover the legal fees they (needlessly) expended in litigating this particular issue, the Corporation Counsel responded that sanctions were unwarranted, because the plaintiffs could not demonstrate that they had acted in bad faith.

Given the tenor of this judge's opinion, his response is unsurprising:

"I conclude without difficulty that Corporation Counsel's conduct constitutes a quintessential example of "neglect or reckless failure to perform [their] responsibility as an officer of the court" to notify opposing counsel and this Court of a material change in the underlying litigated facts, a particularly egregious failure when one considers Corporation Counsel's belated notification of the replacement of lnterim Order 47 was made inadvertently, not intentionally."

He then proceeded to require Corporation Counsel to pay the plaintiffs' legal fees incurred in litigating this issue for approximately 1-1/2 years.

From my vantage point, it is refreshing to see a judge take a tough stance against parties that play fast and loose with the rules and their ethical obligations.