Call it a legal scrum.
Eight attorneys representing two metro Atlanta lawyers and their client in a tangle of litigation stemming from a 5-year-old sex tape of Waffle House’s top executive are urging the Supreme Court of Georgia to reconsider two rulings it issued last week.
Four attorneys are defending David Cohen and former Cobb County prosecutor John Butters, both Marietta lawyers, and client Mye Brindle against felony charges stemming from Brindle’s 2012 recording of her sexual encounter with Waffle House chairman Joe Rogers Jr. Brindle had been Rogers’ housekeeper. On Thursday they asked the high court to revisit its Nov. 2 decision reinstating three felony charges accusing Cohen, Butters, and Brindle of violating the state’s eavesdropping law.
Thursday’s motion was filed by Atlanta attorney Brian Steel, who is defending Cohen; Bruce Morris of Atlanta’s Finestone & Morris and Marietta attorney Jimmy Berry, who are defending Butters; and Marietta lawyer Reid Thompson, who is defending Brindle.
Meanwhile, four more lawyers representing Butters, Cohen and Brindle in a string of civil claims and counterclaims between Brindle and Rogers, have petitioned the high court to reconsider a second decision it released last week over the sex tape. Attorneys John Floyd and Michael Terry of Atlanta’s Bondurant Mixson & Elmore are defending Cohen and Butters. Atlanta attorney Darren Summerville and Marietta lawyer Hylton Dupree Jr. are defending Brindle.
The high court on Thursday dismissed an appeal of a state appellate ruling affirming the disqualification of Cohen and Butters as Brindle’s counsel in the civil case, calling it “improvidently granted.”
Fulton County District Attorney Paul Howard also has promised to weigh in. Last week, a Howard spokeswoman said the DA plans to file his own motion for reconsideration asking the high court to reinstate a felony extortion charge against Cohen and Butters. That charge — stemming from a 2012 demand letter Cohen sent to Rogers accusing him of sexual harassment — and the eavesdropping charges were dismissed by a Fulton County judge. The Supreme Court affirmed the dismissal of the extortion count when it reinstated the eavesdropping charges.
Rogers is represented by Marietta attorneys Robert Ingram and Jeffrey Daxe, both of Moore Ingram Johnson & Steele, bringing the total number of lawyers in the Waffle House sex tape litigation swamp to at least 13. Said Ingram, who expects to file his own response on Rogers’ behalf in the disqualification case: “Butters and Cohen are making good on their threat to impose protracted litigation on my client unless he agreed to their extortionate demands.”
But Steel, who is defending Cohen in the criminal case, said the issues raised in the criminal defense lawyers’ motion to reconsider are significant because in its Nov. 2 ruling, the Supreme Court established new case law and reversed four previous cases. “What is unfair and unconscionable is to apply this new law to alleged acts that occurred before this new law took effect,” he said. “This was about alleged conduct that wasn’t a crime at the time it supposedly occurred.”
Lawyers battling the disqualification of Butters and Cohen rang similar alarm bells in their motion asking the high court to reconsider its decision to dismiss the disqualification appeal, arguing that allowing the appellate ruling to stand was a “borderline disastrous precedential result.”
“The lower court rulings effectively overrule several decades of precedent on the standard for disqualification,” they argued. “That end result in this high-profile case will enshrine what the Court of Appeals’ opinion implicitly incentivizes — using disqualification as a litigation tactic. That improper maneuvering is all the easier to implement and abuse in cases like this, where the powerful and wealthy employ it to attack and silence the powerless and to chill their ability to petition the courts for redress.”