Brown v. City of Oneonta, 203 F.3d 153 (2d Cir. 1999)

Plaintiffs-appellants have moved for reargument of their appeal. We issued a decision on October 26, 1999 affirming in part, vacating in part, and remanding. Brown v. City of Oneonta, 195 F.3d 111 (2d Cir. 1999). Plaintiffs-appellants now argue that their appeal should be reheard because the attorney who argued their case before us, D. Scott Bassinson, had personal interests that created an "appearance of impropriety." General Motors Corp. v. City of New York, 501 F.2d 639, 648 (2d Cir. 1949) (quoting ABA Code of Professional Responsibility, Canon 9). The motion is denied.

Plaintiffs-appellants were represented on this appeal by the firm of Whiteman Osterman & Hanna ("the Firm"). On December 10, 1998, the Firm filed the appellants' brief and, after the appellees' brief was filed by the Attorney General on January 19, 1999, the Firm filed a reply brief on February 1, 1999. We heard argument on June 4, 1999. Bassinson, a lawyer at the Firm, authored the briefs and presented oral argument on behalf of plaintiffs-appellants. In the two months prior to oral argument, but after the briefs had been filed, Bassinson interviewed on three or more occasions for a position with the Environmental Protection Bureau of the Office of the Attorney General of the State of New York ("the Bureau"). A separate bureau of the Attorney General's Office was responsible for arguing the appeal on behalf of the appellees. Bassinson did not advise the Firm's management of his contacts with the Attorney General's Office until July 1, 1999. Bassinson did disclose his involvement in the case with lawyers in the Bureau prior to oral argument, but they did not communicate the information to the attorneys responsible for the appeal. A few weeks after oral argument, Bassinson accepted a position as an Assistant Attorney General in the Bureau.

Plaintiffs-appellants insist that the foregoing facts create an "appearance of impropriety" that requires reargument of the appeal under General Motors, 501 F.2d at 648. We disagree. General Motors concerned disqualification of counsel, not a petition for rehearing. Cf. Fed. R. App. P. 40(a) (petition for panel rehearing). But even if we were to apply principles pertaining to disqualification of counsel, plaintiffs-appellants have not articulated the proper standard. They argue that the appearance of impropriety is sufficient to trigger disqualification, or in this case reargument by new counsel. But this circuit requires not only an appearance of impropriety, but also a showing that the proceedings were somehow tainted by counsel's conflict of interest. See Armstrong v. McAlpin, 625 F.2d 433, 445-46 (2d Cir. 1980) (in banc), vacated on other grounds, 449 U.S. 1106 (1981); see also Bottaro v. Hatton Assocs., 680 F.2d 895, 896-97 (2d Cir. 1982).

Here, there is not the slightest showing that Bassinson's interest in employment with the Environmental Protection Bureau at the time of oral argument adversely affected Bassinson's representation of plaintiffs-appellants.

Bassinson's oral argument to this court was extremely cogent and well-presented. Indeed, plaintiffs-appellants concede that "there is no demonstrable evidence that the attorney's active discussions with the Office of the Attorney General compromised his advocacy." Plaintiffs-appellants' brief was filed approximately four months before the earliest alleged contact between Bassinson and the Environmental Protection Bureau. Because the arguments that Bassinson made at oral argument were fully consistent with those in his brief, there can be no serious claim that Bassinson's representation was in any respect tainted or compromised by his interest in working for the Bureau.

For these reasons, plaintiffs' motion for reargument is denied.