Photo: wikimedia

A magistrate judge questioned attorneys about the free-speech effects of an effort by the Metropolitan Transportation Authority to disqualify a personal injury attorney with a case against the authority who confronted one of its high-level officials at a town hall meeting.

Attorneys for the MTA argue that David Roth, who represents a woman who lost an arm and a leg in 2016 after she fainted on a subway platform and fell in front of an oncoming train, broke ethics rules for New York attorneys when he questioned New York City Transit Authority President Andy Byford in a public meeting about platform safety measures without disclosing that he has a client suing the MTA.

“He should have been prepared for a question coming from a lawyer,” said Kenneth Lange of Smith, Mazure, Director, Wilkins, Young & Yagerman during oral arguments on Friday before U.S. Magistrate Judge Vera Scanlon of the Eastern District of New York.

With respect to First Amendment concerns, Lange said that attorneys accept limitations on their speech as part of their jobs, such as when they adhere to HIPAA laws.

But Scanlon noted that safety issues with the subway system are of concern to the general public and that Byford is a public figure who was answering a question from Roth at a public forum on a non-esoteric topic, not commenting on pending litigation.

“He’s not losing his status as a member of the public,” Scanlon said.

Roth represents Luisa Harger da Silva, who was visiting her boyfriend in New York City in 2016. While she was waiting on a train at the Atlantic Avenue station in Brooklyn, Harger da Silva fainted and fell into a track bed as a northbound B train was pulling into the station.

The MTA alleges that Roth broke the “no contact” rule and engaged in fraudulent conduct when the addressed Byford at an Aug. 21 meeting, in which he said in part that the MTA could prevent deaths installing platform doors.

Pery Krinsky, ethics attorney defending Roth against the MTA’s motion to disqualify, said at the oral argument before Scanlon that ethics rules should not discourage attorneys from coming forward and questioning public officials.

“We want lawyers to not hide behind a rule,” he said.

In court filings, Krinsky has alleged that the MTA is using ethics allegations against Roth to delay three unrelated lawsuits pending in state Supreme Court in which Roth represents plaintiffs who say they were injured by falling in the gap between the platform and the train.

Scanlon said she would issue a ruling on the motion to disqualify at a later date.

Harger da Silva alleges in her suit that having platform barrier doors like those that are in place on the AirTrain that serves the John F. Kennedy International Airport could have prevented her injuries, as well as spared the lives of the estimated 450 to 700 people who have died by getting hit by trains since 2002.

The MTA has discussed the possibility of installing platform doors in the past, most recently as a pilot project at the Third Avenue stop on the L line in Manhattan during the looming “L-Pocalypse” when service between Manhattan and Brooklyn is suspended for a planned 15-month period.  

But Byford announced this summer that the money for the pilot would be redirected to install elevators at the Sixth Avenue stop on the L line; transit officials have said generally through the years that installing platform doors throughout the subway system would be too complicated and costly.

Read more:

MTA Seeks to Disqualify Lawyer Who Confronted Official at Open Meeting

LIRR Commuters’ Suit May Continue Without Claim Notice, Judge Finds

Thomas Quigley Joins the MTA as General Counsel