When the Supreme Court of Georgia reinstated criminal charges against two attorneys and a client who made a secret sex tape of her liaison with the chairman and former CEO of Waffle House, it didn’t stop there.
In a one-line order, the high court unanimously dismissed a separate appeal by metro Atlanta lawyers David Cohen and John Butters, a former Cobb County prosecutor, over their disqualification as counsel for client Mye Brindle as “improvidently granted”—a designation meaning the court should not have accepted the case.
The court dismissed the appeal Thursday without explanation after accepting multiple briefs and hearing oral arguments on Aug. 14.
The sparse language belied the order’s significance. By dismissing the appeal, the high court let stand a 2013 ruling by Cobb County Superior Court Judge Robert Leonard—and a later affirmation of that ruling by the Georgia Court of Appeals—disqualifying Cohen and Butters from representing Brindle in litigation stemming from Brindle’s claims that Rogers repeatedly coerced her into sex while she was his housekeeper.
That means Brindle faces renewed felony charges based on a secret sex tape she made of Rogers, allegedly with her lawyers’ knowledge and cooperation. Also, she can no longer rely on Cohen and Butters to defend her against a pending invasion of privacy suit Rogers filed in Cobb County Superior Court in 2012 tied to the recording.
A third Marietta attorney, Hylton Dupree Jr., also has represented Brindle, but his status remains unclear. Dupree, Cohen and Butters are defendants in a separate lawsuit Rogers filed against them stemming from their actions as Brindle’s counsel. An appeal is pending in that case to determine whether it may go forward and, if so, against which defendants.
Brindle’s interim counsel has been Darren Summerville since Cohen and Butters were disqualified.
Rogers filed the suit, which sealed the tape and barred its dissemination, after Cohen sent Rogers a demand letter in July 2012 accusing him of “a long history of unwelcome sexual demands and other sexual harassment and abuse” involving Brindle.
Brindle, who filed her own sexual harassment suit in Fulton County two days after Rogers sued, has a counterclaim pending in the Cobb case that Cohen and Butters filed on her behalf. Brindle’s counterclaim accuses Rogers of sexual harassment, battery, slander and violations of state racketeering laws. The Fulton case has been dismissed.
On Thursday, the high court also reinstated two felony charges against Brindle, Cohen and Butters, as well as a third charge against Brindle, accusing them of violating the state’s eavesdropping and surveillance law.
The high court let stand the dismissal of a fourth charge accusing the trio of extortion. That charge stemmed from language in Cohen’s demand letter suggesting Brindle’s allegations, if made public, could lead to “injurious publicity,” criminal charges or “divorce and destruction of families” as well as a later offer by Brindle’s lawyers that they would settle without filing suit for $12 million.
Court records describe Brindle’s video recording as depicting Rogers nude in his bathroom, shaving and then lying on his bed as Brindle manually serviced him. The actual footage was sealed by judges in Cobb and Fulton counties who also issued civil rulings that the videotaping was illegal. The indictment was handed down last year but dismissed by a Fulton County judge.
Summerville did not respond to a request for comment on Brindle’s next steps. He argued before the Supreme Court in August on behalf of Brindle, Cohen and Butters that the lawyers did a “reasonable and even excellent job” representing Brindle and that the State Bar of Georgia’s Rules of Professional Conduct that provided the basis for the their court-ordered disqualification “cannot be used as litigation weapons or tactics.”
Brindle’s criminal defense lawyer, Reid Thompson of Marietta, also did not respond to requests for comment.
John Floyd and Michael Terry of Bondurant Mixson & Elmore, who represent Butters and Cohen, did not reply to requests for comment.
Rogers’ counsel, Robert Ingram of Moore Ingram Johnson & Steele in Marietta, who argued before the high court in August that Cohen and Butters should not be reinstated as Brindle’s counsel, said the Supreme Court’s rulings have “sent a clear message that lawyer participation in sextortion will not be tolerated, even when it occurs in the course of an attorney-client relationship. The bottom line is that lawyers cannot participate with their clients in secretly creating video recordings in a private place and then attempt to use the fruit of that criminal conduct to extort money.”
Ingram said he intends to depose Cohen and Butters on their role in how Brindle came to make the secret sex tape.
Cobb County Superior Court Judge Robert Leonard disqualified Cohen and Butters after determining the lawyers’ attorney-client privilege could be pierced over the production of the videotape because the recording was made illegally. Leonard ruled that Rogers had a right to depose the lawyers on how the videotape was made, but Brindle’s attorneys have not complied.
In that order, Leonard said he reviewed the recording.
“The video recording makes it clear that defendant was a willing participant in the sexual encounter and is not the victim of a sexual battery,” Leonard wrote.