The Eastern District Courthouse in Cadman Plaza, Brooklyn (NYLJ/Rick Kopstein)
After clashing with an attorney over tardiness, court procedure and legal arguments, an Eastern District judge decided he had seen enough of the lawyer.
In a nine-page ruling issued on Monday as a second trial in the case was beginning, Judge Brian Cogan (See Profile) denied pro hac vice admission to Brian King of Manhattan, saying he was unqualified to argue in Cogan’s court.
King has standing admission in the state courts but not in the Eastern and Southern districts.
Eastern District Clerk of the Court Douglas Palmer, commenting generally on how such applications are handled, said pro hac vice admissions are a “very common event” and that “we don’t see denials very often.”
An attorney admitted pro hac vice “must comport himself in the manner of attorneys who have standing admission to this Court,” Cogan said in Southerland v. Woo, 99-cv-3329. “Having had Mr. King try this case before me previously, it is clear that Mr. King does not meet this standard. This Court has had no attorney before it in any case who has demonstrated the defiance, lack of respect, and unawareness of local practice and the Federal Rules of Civil Procedure as Mr. King demonstrated during the trial of this case.”
King, a former U.S. Marine and graduate of Harvard Law School, said in an interview on Tuesday that he had no regrets about his advocacy of his client, calling the judge’s decision a continuation of his “bias” in favor of his adversary, New York City.
“There was a battle of wits between Judge Cogan and me, and that seemed to distract Judge Cogan from his obligation to apply the law and rules impartially,” King said.
The underlying matter is a long-fought case brought by Sonny Southerland and his now-grown children alleging that a onetime Administration for Children’s Services caseworker, Timothy Woo, made false statements to gain access to the family’s home and then, without a court order, remove the children, which resulted in foster care placement.
In June 2011, the U.S. Court of Appeals for the Second Circuit overruled a lower court’s summary judgment grant for the city, holding Woo, who removed the children based on bad information, was not shielded by qualified immunity.
For most of the proceedings, Southerland, who has a background in satellite dish installation and maintenance, appeared pro se.
King became involved in the case in April 2013, as trial neared. When Cogan received a pro hac vice application from King, the judge said the application “was granted in the ordinary course.”
A mistrial was declared in the first trial because the jury was unable to reach a decision.
On Monday, King filed an application again asking to be allowed to represent Southerland. Cogan rejected it from the bench and explained his reasons in a written decision.
Cogan said in his opinion that there were “numerous examples” of King’s conduct that justified denial in this case, “but a few will make the point.”
The judge said King “had difficulty with arriving on time for conferences or trial. That of course happens from time to time; when it does, attorneys apologize and the case goes on. Mr. King, however, refused to acknowledge his obligation to be on time.”
King, in the interview, said he had sometimes been late but that other attorneys in the case got “considerable leeway” and that other New York City judges give lawyers a grace period to arrive in the courtroom.
Cogan also noted it was “common practice” in Eastern District civil and criminal cases that attorneys disclose their witnesses for the next day. But he said King “refused the Court’s express direction to make that disclosure.”
King said that during the exchange cited by the judge, he honestly did not yet know everyone he would call, and decisions hinged on how other witness testimony played out.
Cogan said that during a discussion on an evidentiary question, King “diverted the discussion to confront the Court personally.”
According to the transcript cited by the judge, King said, “your Honor you look a little irritated.”
“I’m not irritated. You’re misreading my look, Mr. King. I’m not at all irritated,” Cogan said.
“When someone rolls their eyes–”
“I did not roll my eyes, Mr. King,” Cogan said. “I did look down and up at you at the same time but I did not roll my eyes.”
“I’m sorry, your Honor, I may have to clean my glasses,” King replied.
Cogan said King “continued to defy the Court and engage in misconduct” during closing statements.
Although the case’s procedural history was not in the record before the jury, King referred to the circuit’s remand and the city’s unsuccessful certiorari petition to the U.S. Supreme Court.
“This case went all the way to the U.S. Supreme Court [and] no court has ever found,” King told the jury during closing statements before the city objected.
Cogan cautioned the jurors to weigh only the facts in the record before them, “not the facts that may have been asserted by counsel which are not in the record.”
When King continued, he told the jury that the high court’s proceedings “are public, and so, I’m not permitted to say it today but that you know your obligation is to find the truth.”
With King out of the case, Southerland again is proceeding pro se.
During a break in court Wednesday, Southerland said that if he does not prevail in this trial, Cogan’s denial would be the “main issue” on appeal.
“I believe the judge is putting me at a disadvantage and controlling the outcome of the case…. Someone I trusted and had confidence in, the judge wouldn’t allow in the case,” he said.
A New York City Law Department spokesperson declined to comment. Assistant Corporation Counsels Andrew Rauchberg, Carolyn Kruk, Mark Toews and Jonathan Pines, deputy division chief of the general litigation division are handling the case for the city.
Michael G. O’Neill of Manhattan represents the Southerland children.
@|Andrew Keshner can be contacted at firstname.lastname@example.org. Twitter: @AndrewKeshner.