A federal district court found that a conflict of interest existed with the Corporate Counsel of the City of New York (Corporate Counsel) representing individual employees of Prison Health Services (PHS), because they had conflicting defenses. The court’s ruling came in a lawsuit filed by the family of a pretrial detainee who hanged himself shortly after arriving at the Rikers Island jail.

Upon being arraigned in Queens County Criminal Court on December 18, 2007, the court set bail at $2,500 and ordered David Mercado to be placed on suicide watch. Mercado did not post bond and was incarcerated at Rikers Island.

The next day he was referred to be examined by Patricia Jones, chief of the Mental Health Unit, for an evaluation regarding any “suicidal ideation.” She assigned Simflex Nyame to do the mental health review and informed him of the court order.

Nyame, however, said he was never advised of the order. He concluded that Mercado’s suicide watch should be discontinued; he also believed Jones would obtain the countersignature of a psychiatrist, which she never did.

In general population, guards observed Mercado “showing signs of depression, [and] radical changes in behavior,” prompting a referral back to the Mental Health Unit. On his second visit, Mercado was seen by Ronald Goldbourne, who said he gave the referral to Jones. Jones said she would schedule an appointment for the next day. However, she stated she was not present for the second visit and that Goldbourne decided to send Mercado back to his dorm for having a bad attitude. The next day, Mercado was found hanging in a bathroom. He died on December 30, 2007.

Mercado’s estate moved to disqualify the city’s Corporate Counsel due to a conflict of interest. That argument was two-pronged. The first part related to the City of New York’s option to refuse to indemnify PHS and their employees. The district court held that at most, Mercado’s estate could prove deliberate indifference, but not intentional wanton misconduct that may result in a refusal to indemnify.

Even if the constitutional claim failed, the city would be required to indemnify Jones for medical malpractice if that claim prevailed. Besides, the court noted, “it would not be in the City’s interest to refuse to indemnify its employees or otherwise place blame on them because this would dissuade others from municipal employment.”

In a Sept. 30, 2010 memorandum and opinion, the court found a conflict did not exist between the city, PHS and its employees. However, the court found a conflict of interest did exist between the city’s concurrent representation of Jones, Nyame and Goldbourne, as those defendants presented conflicting versions of events and raised conflicting defenses. Nyame and Goldbourne blamed Jones while she blamed them.

Although the defendants planned to present a “unified defense,” claiming that none acted with deliberate indifference, there were secondary defenses that Jones, Nyame and Goldbourne could raise that would conflict with each other. The court observed that “PHS faulted and disciplined both Nyame and Jones for their failure to obtain the appropriate approval before discontinuing Mercado’s suicide watch [which] suggests that neither party’s version can be dismissed as baseless.”

Therefore, to proceed with Corporate Counsel, Jones, Nyame and Goldbourne must “submit affidavits waving their rights to assert the contradictory defenses.” Alternatively, Corporate Counsel can represent Jones if it certifies it is not representing the other defendants. The case remains pending on the defendants’ motions for summary judgment. See: Mercado v. City of New York, U.S.D.C. (S.D. NY), Case No. 1:08-cv-02855-BSJ-HBP.

Related legal case