By Katheryn Hayes Tucker, From Daily Report

A judge has ruled that a lawsuit can go forward against two lawyers whose client made an illegal video of a sexual encounter with the chairman of Waffle House Inc.

Waffle House Chairman Joe Rogers Jr. has sued the lawyers who represent his former housekeeper and personal assistant, Mye Brindle, alleging that they were involved in her decision to make a video of her employer naked in his bathroom and bedroom, without his consent, and then tried to use it to extort money from him.

Judge Robert Leonard II of Cobb County Superior Court on Wednesday denied motions by the two lawyers, David Cohen and John Butters, to throw out Rogers’ lawsuit.

Leonard granted a motion to dismiss Rogers’ lawsuit against a third lawyer, Hylton Dupree Jr., and his firm, Dupree & Kimbrough. Leonard ruled that Dupree was not brought in until later in the case and could not have been involved in the making of the video.

Rogers has alleged that Cohen and Butters sent Brindle to their investigator, from whom she acquired a “spy” camera disguised as a cellphone and used it for the video recording.

Earlier in the case, Leonard viewed the video at the request of Brindle’s lawyers and issued an order saying that the video was made illegally because Georgia law requires the consent of both parties in video recordings. The law requires only one party be aware when audio recordings are being made. Leonard’s order also said Brindle had made the video with assistance from her lawyers, Cohen and Butters. Leonard further noted in that order that the sexual activity between Rogers and Brindle appeared to be consensual, undermining Brindle’s claim that she had been sexually harassed and abused by her employer.

Rogers’ complaint against the lawyers includes a letter from Cohen asking for a financial settlement for Brindle’s sexual harassment claims. That letter spawned litigation in Cobb and Fulton counties between Brindle and Rogers.

Leonard noted that in their dueling lawsuits, what Brindle’s lawyers called a demand letter is what Rogers’ lawyers called an extortion letter. Leonard described it as “not merely a run-of the-mill demand letter,” noting it threatened dire outcomes if the dispute was not settled, including media attention, public focus, injurious publicity, criminal charges, lengthy incarceration and divorce and destruction of families.

“This court has struggled mightily to arrive at the order being entered here,” Leonard wrote in Wednesday’s order. “These are serious issues and serious allegations that by letting them go forward, have the potential to cost these parties considerable sums of money, do damage to their reputations and may ultimately threaten their livelihood as lawyers.”

“However,” Leonard went on to write, “this court did not put them in the situation they are faced with.”

The lawyers were not available Thursday afternoon for comment.

The lawyers and the client have given differing accounts about the planning and making of the video, Leonard noted in a 2013 order. Cohen has said in open court that he sent Brindle “to see an expert,” Leonard’s order said, while Brindle testified “that Mr. Cohen and Mr. Butters both attended the meeting with the expert.”

Leonard’s order tracks the history of pending litigation that started in 2012 and has gone before at least 10 judges in Cobb and Fulton counties as well as the Georgia Court of Appeals.

The litigation started after a failed mediation attempt. “It is undisputed,” Leonard noted, that Rogers and his counsel—Robert Ingram and Jeffrey Daxe of Moore Ingram Johnson & Steele—participated in mediation on Sept. 14, 2012, with Brindle and her lawyers: Cohen, Butters and Dupree. The session ended unsuccessfully, Leonard noted, after Rogers offered $100,000 to Brindle as severance, and her lawyers demanded $12 million.

Leonard made a point in Wednesday’s order of saying the case was not about the breakdown of mediation or the wide disparity in the parties’ offers. “A multimillion-dollar demand to Joe Rogers would be roughly equivalent to a few thousand dollars to an average wage earner,” Leonard wrote. Rather, the judge said, the issue is “information came to light that supports a conclusion that a party obtained evidence in violation of Georgia law, and that party may have obtained her counsel’s advice and assistance in obtaining that evidence.”

Leonard also gave a nod to the death Saturday of U.S. Supreme Court Justice Antonin Scalia by using one of his famous phrases: “Any attempt to re-frame the issue in this litigation to one of the reasonableness of the mediation demand is an exercise in jiggery-pokery.”

The case is Rogers v. Cohen, No. 14-1-4143-53.

IMAGE: Judge Robert D. Leonard II John Disney/Daily Report

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