Emery is a name partner in a law firm which sometimes represents plaintiffs in federal civil rights actions against police officers and the City. After the CCRB found a complaint to be “substantiated” the firm filed suit on behalf of the complainant. Emery applied to the City’s Conflict of Interests Board for a a waiver under the City Charter’s §2604. it provides:
Prohibited interests and conduct. a. Prohibited interests in firms engaged in business dealings with the city. 1. Except as provided in paragraph three below, (a) no public servant shall have an interest in a firm which such public servant knows is engaged in business dealings with the agency served by such public servant; provided, however, that, subject to paragraph one of subdivision b of this section, an appointed member of a community board shall not be prohibited from having an interest in a firm which may be affected by an action on a matter before the community or borough board,
According to a report in the Daily News the COIB granted a waiver which required that he be screened from any involvement, and, presumably, from sharing in any fees earned.
On February 17, 2017 a police union, the NYC Sergeants Benevolent Association issued this statement:
New York – The 13,000 member New York City Sergeants Benevolent Association (SBA) has learned that the Chairman of the Civilian Complaint Review Board, Richard Emery, through his law firm, Emery, Celli, Brinckerhoff & Abady, is now representing a former CCRB complainant in a civil rights lawsuit against the City and several members of the NYPD.
While this revelation is outrageous, it is not surprising. Mr. Emery’s firm has made a fortune suing the City of New York and the members of its police department for many years.
“This is outrageous and demands an immediate investigation by the New York City Conflicts of Interest Board,” said SBA President Ed Mullins. “It appears that Mr. Emery is using his position as Chairman of CCRB to steer potential clients to his law firm and influence investigations at CCRB in which his firm has a potential financial benefit. It is no coincidence that Mr. Emery’s firm entered the case of Luckey v. City of New York et al immediately after CCRB completed its prosecution of Mr. Luckey’s CCRB complaint.
“The rank and file members of the NYPD continue to be the most scrutinized law enforcement agency in the United States,” added Mullins. “Although we encourage accountability and do not object to fair inquiries, the realization that the Chairman of CCRB – which defines itself as an ‘independent agency’ charged with investigating police misconduct – seeks to personally profit financially from his own agency’s decisions, is astonishing and unethical.
“The simple fact that Mayor DeBlasio chose to appoint a lawyer with a decades’ long history of suing the NYPD is, in and of itself, shocking. CCRB is an agency which has virtually no credibility among law enforcement officers and the public. This newest revelation merely confirms what New York City police officers have long believed: CCRB is a fraudulent agency which makes no effort at impartiality. Mr. Emery’s efforts to obtain personal gain off the backs of honest cops is brazen and immoral.”
There will doubtless be a motion to disqualify Emery’s firm by the defendant police officer whose lawyers will presumably be retained by the union.
Does Emery’s firm have a conflict of interest under RPC 1.7? Under RPC 1.8? Is the COIB waiver a defense against disqualification under RPC 1.11? Is RPC 1.10type screening adequate?
Historically, when the board substantiated a complaint and found that an officer committed misconduct, it forwarded the case to the New York City Police Department (NYPD), in most cases with a disciplinary recommendation.
While the CCRB has the authority to investigate complaints and to determine if misconduct occurred, under the law only the police commissioner has the authority to impose discipline and decide the appropriate penalty.
However, on April 2, 2012, the NYPD and the CCRB signed a Memorandum of Understanding (MOU) which conferred on the CCRB the power to prosecute substantiated cases where the board recommended “charges and specifications,” the most serious discipline.
As a result, the CCRB’s Administrative Prosecution Unit (APU) now prosecutes nearly all these cases, with limited exceptions. The trials are held at the police department, before an administrative law judge, known as a deputy commissioner for trials. If an officer is found guilty, punishment can be: a warning and admonishment, loss of vacation days, suspension without pay, a dismissal probation, or termination from the NYPD. The police commissioner retains the authority to decide the level of punishment.