Forty-Two Years After Dunton, the Conflict Is Still There

For more than twenty years, I have cited Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984), modified on other grounds, 748 F.2d 69 (2d Cir. 1984), because it addressed something that has always bothered me about municipal civil-rights litigation.

A municipality gets sued. Its police officers or other employees get sued individually. The municipal law department appears for everybody. Everyone proceeds as though the interests of the municipality and the individual defendants are interchangeable.

They are not.

Sometimes those interests remain aligned throughout the litigation. Sometimes they separate. The real problem is that courts often do not meaningfully confront the conflict until counsel is already being forced to choose between competing client interests.

The Second Circuit identified that danger more than four decades ago in Dunton. There, the Suffolk County Attorney represented both Suffolk County and Officer Robert Pfeiffer in a § 1983 action. The County could benefit by establishing that Pfeiffer had acted personally rather than officially. Pfeiffer, however, had an interest in establishing that he had acted as a police officer and preserving the defenses associated with that role.

At trial, the conflict stopped being theoretical. The County Attorney characterized Pfeiffer as acting “as a husband, not even as an officer,” and later described him as an “irate husband.” The position helped the County precisely because it damaged Pfeiffer.

The Second Circuit held that the divided representation deprived Pfeiffer of a fair trial. Dunton, 729 F.2d at 906–09.

The Court stopped short of announcing a categorical prohibition against joint representation in municipal civil-rights litigation. But it expressly observed that such a rule “might indeed be appropriate.” Id. at 908 n.4.

That was 1984.

The problem never went away.

Dunton identified a structural problem, not an isolated mistake

It is easy to reduce Dunton to an unusual case in which a lawyer made an obviously damaging argument against his own client.

That reading is too narrow.

The importance of Dunton lies in why the lawyer was placed in that position in the first place. Once Monell v. Department of Social Services, 436 U.S. 658 (1978), established an independent basis for municipal liability under § 1983, the assumption that the municipality and its employee necessarily shared the same litigation interests became increasingly difficult to sustain.

Sometimes protecting the employee protects the municipality.

Sometimes it does not.

Indeed, later in 1984, the Suffolk County Patrolmen’s Benevolent Association and twenty-six police officers brought separate litigation challenging Suffolk County’s continued practice of joint representation in § 1983 cases. Suffolk County Patrolmen’s Benevolent Ass’n v. County of Suffolk, 595 F. Supp. 1471, 1473–74 (E.D.N.Y. 1984). Although the broader effort to establish a constitutional right to counsel of the officers’ choosing at County expense failed, the litigation reflected the immediate institutional concern created by Dunton.

Over time, however, the question became narrower.

In Rodick v. City of Schenectady, 1 F.3d 1341, 1350 (2d Cir. 1993), the Second Circuit distinguished Dunton where the municipality and officers maintained consistent positions and counsel advanced the defenses available to the individual defendants. Later, in Patterson v. Balsamico, 440 F.3d 104, 114–15 (2d Cir. 2006), the Court again emphasized that Dunton did not establish a per se disqualification rule.

Those decisions make sense on their facts. But they also illustrate how the inquiry can migrate from whether a serious risk of divided loyalty exists to whether that conflict has already become sufficiently obvious to demonstrate actual prejudice.

That is an important difference.

New York Rule of Professional Conduct 1.7 does not require a lawyer to wait until one client has actually been harmed. A concurrent conflict may exist where the representation involves directly adverse interests or where there is a significant risk that counsel’s professional judgment will be materially limited by responsibilities to another client.

Conflict rules are prophylactic for a reason.

If the legal system waits until the lawyer actually has to choose which client to damage, much of the protection has already failed.

Basile shows exactly how the interests can separate

That brings us to Basile v. County of Nassau, No. 20-CV-576 (EK) (CHK) (E.D.N.Y. Mar. 30, 2026).

Judge Eric Komitee did not cite Dunton. The connection is mine. But the procedural history of Basile demonstrates exactly why the older decision still matters.

Roger Basile alleged that Nassau County detectives assaulted him inside the Seventh Precinct. The case proceeded to trial on federal excessive-force claims against Detectives Perkins and Lashinsky and New York battery claims against the detectives and Nassau County.

The Nassau County Attorney’s Office initially represented all three defendants. Before trial, Judge Komitee himself questioned the propriety of that joint representation, and conflict waivers were subsequently submitted by the individual officers.

Then the jury returned the verdict that exposed the problem.

Neither Perkins nor Lashinsky was found individually liable. Nassau County, however, was found liable for battery and ordered to pay $4.5 million.

The initial post-trial motion was nevertheless filed nominally on behalf of all three defendants. Judge Komitee again raised the conflict sua sponte because relief beneficial to Nassau County could jeopardize the favorable verdicts already obtained by the detectives.

This time the Court cited Tiffany v. Village of Briarcliff Manor, 216 F.3d 1073, 2000 WL 900206, at *2 n.1 (2d Cir. 2000) (table decision), where the Second Circuit had confronted a similar post-verdict conflict after officers prevailed individually but their municipal employer did not.

Private counsel ultimately appeared for Perkins and Lashinsky, and Nassau County pursued its post-trial motion separately.

That is the entire factual conflict.

It does not need to be repeated throughout the rest of the commentary.

The more important question is what it tells us.

Municipal and individual defendants can have fundamentally different interests

The easiest Dunton conflict involves scope of employment.

The municipality wants to say: he was acting personally.

The employee wants to say: I was acting as an officer.

But that is only one form of divergence.

An officer defending a civil-rights action may have an interest in demonstrating that challenged conduct was consistent with training, supervisory instructions, departmental practice, or institutional expectations. The municipality defending a Monell claim may have every incentive to deny exactly those propositions.

Indemnification creates another potential conflict. An employee may need to establish that conduct occurred within the scope of employment. The municipality may have a financial interest in arguing that the conduct constituted a personal departure from authorized duties.

Punitive damages create another. They may expose the individual employee to personal liability that the governmental defendant does not share.

Settlement can create another. The employee may want finality while the municipality may want to litigate a policy question that extends beyond the particular case.

Discovery may create another. Evidence may emerge that makes the employee’s most effective defense inconsistent with the municipality’s institutional position.

And post-trial litigation can create another, as Basile demonstrates.

The point is not that every municipality and employee require separate counsel on the day the complaint is filed. Neither Dunton nor subsequent Second Circuit authority goes that far.

The point is that courts should stop treating common representation as though alignment is presumed to continue unless and until someone openly turns against another client.

A conflict waiver executed early in the case does not freeze the litigation in time. Circumstances change. Defenses change. Exposure changes. Client interests change.

Counsel’s obligation to evaluate the conflict therefore must continue as well.

The verdict itself was not inconsistent

Separate from the representation issue, Basile is also an important respondeat superior decision.

Nassau County argued that because neither detective had been found liable individually, there could be no underlying employee tort supporting municipal liability.

Judge Komitee rejected that argument because it confused proof that an employee committed a battery with proof of which employee committed it.

The jury instructions allowed the jury to find Nassau County liable if it unanimously determined that one of the officers used excessive force, even if the jurors could not unanimously determine which officer was responsible.

That makes sense under the burden of proof.

If the jury were convinced that Basile had been battered by one of two Nassau County detectives but viewed the identity evidence as evenly divided, Basile could not establish by a preponderance that Perkins specifically committed the battery. Nor could he establish by a preponderance that Lashinsky specifically committed it.

Both officers could therefore prevail individually.

Yet the jury could simultaneously be convinced that a Nassau County employee committed the tort.

The uncertainty concerned identity, not occurrence.

That distinction matters in police-misconduct litigation, where plaintiffs may be surrounded by several officers, physically restrained, injured, disoriented, or otherwise unable to determine with certainty which officer administered a particular use of force.

New York respondeat superior law does not necessarily convert that identification problem into municipal immunity.

State-law liability can change the entire architecture of the case

This is also why state-law tort claims should not be treated as decorative appendages to a federal civil-rights complaint.

Nassau County was not held liable through ordinary § 1983 respondeat superior. Monell does not make a municipality liable merely because one of its employees committed a constitutional tort.

The County’s liability arose under New York law.

That difference is important doctrinally, but it is also important strategically. Federal municipal liability, individual § 1983 liability, state-law tort liability, indemnification, qualified immunity, and punitive damages are governed by different rules.

Those differences are precisely what can cause jointly represented defendants who initially appear aligned to develop different legal interests as the case progresses.

That is the connection between the verdict issue and the conflict issue.

Not because we need to retell the verdict again, but because the differing legal bases of liability explain why the defendants’ interests may not remain identical.

Nassau County could not fix its trial problem through Rule 59(e)

Nassau County also faced a straightforward preservation problem.

Defense counsel had made a Rule 50(a) motion concerning Lashinsky but had not made the corresponding sufficiency motion for the County. The County likewise had not objected to the respondeat superior instruction and had represented that it had “signed off on everything.”

After the verdict, it attempted to use Rule 59(e) to obtain what amounted to judgment as a matter of law.

Judge Komitee rejected that route.

Rule 59(e) cannot ordinarily be used to bypass the procedural requirements of Rules 50 and 51. A litigant cannot approve the charge, fail to preserve the necessary sufficiency challenge, receive an unfavorable verdict, and then use Rule 59(e) to obtain the relief it failed to preserve at trial.

The Court nevertheless reached the substance because of the size of the verdict and concluded that the evidence was sufficient and the jury’s findings were not inconsistent.

The $4.5 million judgment therefore survived.

Dunton still asks the question courts should be asking

What makes Basile significant to me is not simply that Nassau County lost $4.5 million while the individual detectives avoided liability.

It is what happened to the representation once different legal outcomes became possible.

More than forty years ago, Dunton recognized that municipal civil-rights litigation creates circumstances in which the governmental defendant and the individual employee may need different things from the same lawsuit.

That problem remains.

Yet too often the analysis still seems to focus on whether the conflict has become bad enough to require intervention after it has already affected the representation.

That asks the question too late.

The more useful question is whether counsel can continue exercising genuinely independent professional judgment for each client as the litigation develops, particularly when the municipality’s institutional interests and the employee’s personal interests begin pointing in different directions.

Judge Komitee identified the issue before trial in Basile. He addressed it again when circumstances changed after the verdict. That is exactly how conflict analysis should operate: continuously, not once.

The decision did not cite Dunton. It did not need to.

But Basile illustrates why I have continued citing Dunton for more than twenty years.

The question is not simply whether the municipality and employee can share counsel when the litigation begins.

The harder question is what happens when protecting one requires sacrificing the other.

Dunton asked that question in 1984.

Forty-two years later, it remains the right one.