The opinion of the court was delivered by: CHERYL POLLAK, Magistrate Judge
REPORT AND RECOMMENDATION
On August 6, 1998, plaintiffs Abner and Micheline Louima filed
this civil action against the City of New York, the Patrolman's
Benevolent Association ("PBA"), various individually named
officers of the New York City Police Department ("NYPD"), and
members of the PBA, alleging, inter alia, violations of
42 U.S.C. § 1983 in connection with the brutal attack on Abner
Louima that occurred on August 9, 1997 and the subsequent alleged
cover-up conspiracy by the defendants. The underlying action was
settled on July 14, 2001, with the Louimas receiving a total
amount of $8.75 million in exchange for dismissal of the claims
against all of the defendants except for Officers Charles Schwarz
and Francisco Rosario. Pursuant to the settlement agreement,
one-third of the total settlement amount, representing the amount
to be allocated as attorneys' fees, was deposited in an escrow
account to be administered by a trustee appointed by the Court.
On March 12, 2001, prior to the consummation of the settlement,
the current attorneys for plaintiffs, the firm of Cochran,
Neufeld & Scheck ("CN&S"), and the firm of Rubenstein and Rynecki
(the "Rubenstein firm"), filed a motion to invalidate any claims
made by the Louimas' prior counsel, Carl W. Thomas,
Esq.,*fn1 Brian Figeroux, Esq., the firm of Thomas &
Figeroux ("T&F"),*fn2 and Casilda E. Roper-Simpson, Esq., to share in the legal fees arising from
the Louimas' civil action. In their motion, CN&S contend that T&F
should not receive any portion of the legal fees in this matter
because they violated their ethical and fiduciary duties to
Louima in three ways: (1) they withdrew from representing their
client without cause; (2) they violated their ethical duty to
keep client information confidential; and (3) by disclosing this
information, they violated Louima's express instructions to the
detriment of Louima. With respect to Ms. Roper-Simpson, CN&S
contend that since she was never retained by the Louimas, her
right to claim legal fees is entirely derivative of T&F's
entitlement to fees, and must fail for the same reasons. (See
Plaintiffs' Proposed Findings of Fact and Conclusions of Law
("CN&S's Post-Trial Br.") at 109).*fn3
T&F have a vastly different version of events. They contend
that when Louima initially contacted T&F with his story of police
brutality, T&F, "[d]espite the risks of pursuing such spectacular allegations," undertook to bring Louima's case to the prosecutors
and the public and, through "enormous time, effort, energy and
courage[,] . . . transform[ed] [Louima] from an anonymous
immigrant with dubious claims . . . into a nationally known
victim of egregious police brutality[,]" thereby virtually
ensuring "an easy victory" in Louima's civil case. (Memorandum of
Law in Opposition to Plaintiffs' Application for Fee Forfeiture
and For Recovery of Fees Due ("T&F's Post-Trial Br.") at 1-2).
T&F contend that after they had "overcome these obstacles and the
prospect of a large recovery was apparent," Cochran, through
"[d]issembling," "insinuated his way into the case as lead
counsel" and "began a campaign to exclude" T&F by alienating them
from Louima through, among other things, false charges that
Figeroux had leaked information to the press regarding Louima's
retraction of the "Giuliani time" statement.*fn4 (Id. at
A hearing was held before this Court beginning on October 16,
2002,*fn6 which culminated with the filing of extensive briefs by all parties. Having heard the
testimony of each of the witnesses and carefully considered all
of the papers submitted by the interested parties, this Court
makes the following findings of fact and conclusions of law.
During the early morning hours of August 9, 1997, Abner Louima
was assaulted by one or more police officers after he left the
Club Rendez-Vous on Flatbush Avenue, in Brooklyn.
(Compl.*fn7 ¶ 34). He was handcuffed, placed in the rear of
a radio patrol car, and transported to the 70th Precinct. (Id.
¶¶ 36-37). Louima alleges that twice on the way to the precinct,
the police officers stopped the car and beat him. (Id. ¶ 4).
Once in the precinct station house, Louima was taken into the
bathroom where he was brutally assaulted by NYPD Officer Justin
Volpe,*fn8 who shoved a stick into Louima's rectum "with
sufficient force to tear through his internal organs." (Id. ¶
42). Despite his horrendous injuries, Louima was detained in a
precinct holding cell for several hours, and eventually taken to
Coney Island Hospital where he underwent surgery for his
injuries. (Id. ¶¶ 63, 67).
While in Coney Island Hospital, Louima, who was then facing
possible criminal charges for allegedly assaulting Officer Volpe,
remained in handcuffs for several days. (L. Tr. at 58).*fn9
Police officers were stationed guard outside Louima's hospital room,
and, according to Louima, he was "fearful for his life." (Id.
at 61). He was on medication during that period of time and thus
he could not remember if he saw any family members during the
first few days that he was hospitalized. (Id. at 59).
B. Retention of Thomas & Figeroux
On August 11, 1997, while Louima was in the hospital, in police
custody, and handcuffed to his hospital bed, Jovens Moncoeur,
whose sister is now married to Louima's brother Jonas, contacted
Brian Figeroux, Esq., who had taught a course at Brooklyn College
which Jovens had attended. (M. Tr. at 128-29; F. Tr. III at
34-35).*fn10 Monceour asked Figeroux and Carl Thomas, Esq.
to represent Louima in the criminal case that was pending against
Louima at the time. (L. Tr. at 11).*fn11
Brian Figeroux testified that upon receiving Moncoeur's call,
he immediately attempted to meet with Louima in the hospital, but
was refused admission by the police. (F. Tr. III at 35). He was
forced to go to the 70th Precinct to obtain authorization to see
Louima as Louima's counsel. (Id.)
Although Louima could not recall when he first met Thomas and
Figeroux, Louima did remember meeting with them in the hospital
within a few days after the incident, but he could not recall
what was discussed. (L. Tr. at 57-58, 61). Louima explained that
some of the lawyers contacted by his family were asking for money
before they would take Louima's case; T&F was retained because the lawyers agreed to meet Louima and did not ask for money.
(Id. at 55, 84-85; M. Tr. at 130). Although Louima could not
recall if he signed a retainer agreement with T&F (L. Tr. at 63),
Figeroux testified that Louima orally retained T&F on August 11,
1997. (F. Tr. I at 174-75).
According to Louima, he first met Casilda Roper-Simpson, Esq.
at the same time that he first met Thomas and Figeroux. (L. Tr.
at 14). Thomas and Figeroux told Louima that Ms. Roper-Simpson
"was working with them," and Louima understood that when he
retained T&F, "[t]hey were together and working as one lawyer."
(Id. at 14-15). Louima testified that he did not ask
Roper-Simpson to serve as his attorney, and he did not sign a
separate retainer agreement with Ms. Roper-Simpson, but rather he
understood that she would be paid by T&F. (Id. at
15).*fn12 Louima testified that he did not realize at the
time that Roper-Simpson had a separate office. (Id. at 77-78).
According to both Figeroux and Roper-Simpson, T&F were hired at
the outset to represent Louima for purposes of both the pending
criminal charges and any potential civil action. (F. Tr. III at
51-52; R.S. Tr. I at 23).*fn13 In support of that claim, T&F
point to Sanford Rubenstein's testimony that when Rubenstein was retained during "one of the early visits" to
the hospital, he was told by Louima to work with T&F on the civil
case. (R. Tr. at 71).
C. Initial Contact with the Internal Affairs Division and Mike
On Sunday, August 10, 1997, prior to the retention of T&F, a
nurse at Coney Island Hospital who was caring for Louima,
contacted the Internal Affairs Division ("IAD") of the NYPD.
(R.S. Tr. I at 163; S. Tr. I at 78, 177-78; CN&S Post-Tr. Br. at
7). On August 11, 1997, attorneys for the Brooklyn District
Attorney's Office attempted to interview Louima. (R.S. Tr. I at
11, 170). According to Roper-Simpson, after approximately fifteen
minutes, Louima, who was still very weak, could not respond to
their questions and the interview was terminated. (Id. at
12-13). On August 12, 1997, although heavily medicated, Louima
was interviewed by officers from the IAD. (L. Tr. at 96, 98; Ex.
84*fn14 at 1-2).
On that same day, August 12, 1997, Louima was also interviewed
by Mike McAlary of the New York Daily News, who published an
article on August 14, 1997, entitled "Victim and City Deeply
Scarred." (L. Tr. at 59, 90; T&F Post-Hearing Br., Ex. 1; F. Tr.
III at 38-39). T&F claim that they were instrumental in making
the necessary arrangements for McAlary to gain access to Louima.
(See T&F Post-Trial Br. at 8 n. 7).*fn15 The next day, August 13, 1997, Mayor Giuliani came to visit
Louima in the hospital. (L. Tr. at 61-62; R.S. Tr. I at 65; CN&S
Post-Tr. Br. at 10). According to Louima, at the urging of
Louima's Uncle Nicolas, the mayor made a call from the hospital
during that visit; the criminal charges were dropped, and the
handcuffs were removed. (L. Tr. at 62-63). Although Figeroux and
Roper-Simpson testified that they were responsible for having the
charges dropped (F. Tr. III at 52; R.S. Tr. I at 32), it was
Louima's testimony that T&F played no role in the decision to
drop the charges despite the fact that they had been hired for
the purpose of representing Louima in the criminal case. (L. Tr.
D. Giuliani Time Statement
On August 13, 1997, while Louima was still in Coney Island
Hospital, a press conference was held which was attended by the
Reverend Al Sharpton, members of Louima's family, Thomas,
Figeroux and Roper-Simpson. (R.S. Tr. I at 16; S. Tr. I at
71;*fn17 F. Tr. I at 174, 179). During that press
conference, which was held outside of Coney Island Hospital,
Figeroux told the press that one of the officers who attacked
Louima had, during the attack, said in substance, "`It's not
Dinkins' time. It's Giuliani time'" (the "Giuliani time
statement"). (R.S. Tr. I at 18-19; F. Tr. I at 165-72; S. Tr. I
The following day, August 14, 1997, Louima was wheeled out on
his hospital bed for a press conference and repeated the Giuliani time statement. (S. Tr. at
71-72; R.S. Tr. I at 53; L. Tr. at 152-53). Louima testified that
he did not want to speak to the press at that time, but he
acquiesced to the pressures of Thomas and Figeroux. (L. Tr. at
151-52). Roper-Simpson testified that it was Louima who
"insisted" on speaking to the press to tell the world his story
and that he ignored the advice of his attorneys. (R.S. Tr. I at
55-56). However, contrary to Roper-Simpson's testimony, Figeroux
testified that he wanted the press conference with Louima to take
place. (F. Tr. I at 182-83). He described it as a "collective
decision" and indicated that the attorneys spoke to Louima before
that press conference. (Id. at 183).
On August 15, 1997, the day after Louima's first press
conference, Louima was moved to Brooklyn Hospital. (L. Tr. at 51;
R. Tr. at 38). On that same day, his videotaped testimony was
taken in the hospital for presentation to a state grand jury.
(R.S. Tr. I at 50, 170; CN&S Post-Tr. Br. at 16). His testimony
was then taken again for the state grand jury via videotape on
August 20, 1997. (Id.)
During both the interview with IAD, the videotaped testimony
before the grand jury, as well as the press conference on August
14, Louima was in a great deal of pain, on medication and clearly
not in shape to make statements. (L. Tr. at 96, 98-99; R.S. Tr. I
at 12-13). Many of the inconsistencies in his testimony that
would later plague the prosecution's case during the criminal
trials stem from statements made during these initial few public
statements. (L. Tr. at 98). Louima attributed the failure of T&F
to prevent him from speaking to the press as stemming from
E. Initial Contacts with the U.S. Attorney's Office
During this same time period, T&F contacted the U.S. Attorney's
Office for the Eastern District of New York (the "Office"), because, as T&F told Louima, they
thought Louima had a "very good case." (Id. at 63-64). Thomas,
who was a former Assistant District Attorney, told Louima that
the State does "[not] do a good job when it comes to police
brutalities" so it would be better to have the federal government
get involved. (Id. at 64).
Kenneth Thompson, formerly an Assistant United States Attorney
("AUSA"), who was employed in private practice at the time of the
hearing, testified that he had served as an AUSA for five years
in the Office, and was one of the first assistants assigned to
the Louima matter, along with AUSA Leslie Cornfeld, Deputy Chief
of the Civil Rights Section of the Office. (T. Tr.*fn18 at
210, 213-14). They were later joined on the government's team by
AUSA Cathy Palmer,*fn19 who served as the lead prosecutor
until she left the Office, and by then AUSA Loretta
Lynch,*fn20 then AUSA Alan Vinegrad,*fn21 and AUSA
Margaret Giordano. (Id. at 214-15; V. Tr. at 236). According to Mr. Thompson, he handled the grand jury
investigation with Ms. Palmer, and drafted the indictment, as
well as the government's response to the change of venue motion.
(T. Tr. at 214-15). Alan Vinegrad, former Interim United States
Attorney, became involved in the Louima case in September 1998,
first as a trial prosecutor with Ms. Lynch and Mr. Thompson,
replacing AUSA Giordano, and eventually replacing AUSA Palmer as
lead counsel. (V. Tr. at 235-36). Vinegrad participated in the
decision to seek and obtain additional charges against Officers
Bruder, Schwarz and Wiese for obstruction, which resulted in the
second criminal trial in the case, and in the decision to indict
Officers Alleman and Rosario, which resulted in the third
criminal trial. (Id. at 237-38).
According to Mr. Thompson, on Monday, August 11, 1997, at
approximately 8:00 p.m.,*fn22 Mr. Thompson received a phone
call in his office from Carl Thomas, who told Thompson that he
had a client who had been "raped"*fn23 by the police in the
precinct. (T. Tr. at 218). Mr. Thompson testified that he had
first met Carl Thomas while attending New York University Law
School. (Id. at 215). At that time, Thompson was a year ahead
of Thomas in law school, knew that Thomas was a Root Tilden
scholar, had one or two classes with Thomas, and had attended a
number of events at the law school arranged by Thomas. (Id. at
During the first phone call, Thomas told Thompson that he
wanted Thompson to come to his office because he wanted the
United States Attorney's Office to get involved and investigate
the Louima matter. (Id. at 218). At that point, Thompson had
never heard of either Abner Louima or Justin Volpe. (Id. at 219). Thompson testified that originally
he did not "think police officers would engage in such conduct,"
and he told Thomas that he did not have the time to meet with
Thomas that evening. (Id. at 218-19). When Thompson told Thomas
that he could not meet with him that night, Thomas, and later
Figeroux, who got on the phone with Thompson, tried to persuade
Thompson to set up a meeting with Zachary Carter, then U.S.
Attorney for the Eastern District of New York. (Id. at 219).
The next day, Thompson spoke to Gordon Mehler, Chief of Special
Prosecutions, and Leslie Cornfeld, Deputy Chief of the Civil
Rights Unit in the Office, and although they both expressed an
interest in meeting with Thomas and Figeroux, Thompson had to
first get permission from Mr. Carter who was out of the office
that day. (Id. at 220). During the day, Thomas and Figeroux
paged Thompson to see if he had been able to set up a meeting
with Mr. Carter. (Id. at 219-20). They told Thompson that
Louima was "actually injured." (Id. at 221).
On the morning the McAlary article appeared on the front page
of the Daily News, Thompson showed the article to the United
States Attorney, Zachary Carter, and explained to Mr. Carter that
he had gone to law school with Carl Thomas, the attorney
representing Louima. (Id. at 222). He told Mr. Carter that
Thomas had asked for a meeting to discuss the Louima situation,
and thereafter, a meeting was arranged, attended by AUSAs
Thompson, Cornfeld, Gordon Mehler, and Jason Brown, as well as
Thomas, Figeroux, and Ms. Roper-Simpson. (Id. at 222-23; R.S.
Tr. I at 25; F. Tr. III at 41-42, 59-60, 62). According to Mr.
Thompson, based on the discussion at the meeting and the press
report, the attorneys understood the significance of the case.
(T. Tr. at 224). However, at this point in time, the District
Attorney's Office was investigating the case and "the [O]ffice
didn't commit to doing anything with respect to the case. . . . I believe [we] were committed at
that time to adhere to the policy of the [Department of Justice,]
to let a state prosecution . . . play itself out." (Id. at
According to Mr. Thompson, eventually, after conversations
between Mr. Carter and Charles Hynes, the Brooklyn District
Attorney,*fn24 a press conference was held, at which time
Mr. Carter announced that there would be a joint federal-state
investigation conducted into the Louima incident. (Id. at 225).
Thereafter, Mr. Thompson attended a variety of meetings with
Thomas, Figeroux, and Roper-Simpson, as well as Cochran, Neufeld
and Scheck. (Id. at 226). Mr. Thompson testified that AUSA
Cornfeld initiated "a pattern and practice investigation,"
looking into NYPD statistics. (Id. at 237-38). While she was
focused on that aspect of the investigation, Thompson and Palmer
were focused on the "horrific thing" that happened to Louima.
(Id. at 238).
Thompson expressed his view that by reaching out to federal
prosecutors, Thomas "made an important contribution to [the]
case," "because what they did for me . . . was it focused our
attention. We had access to the lawyers representing the victim
early on, and [Thomas] urged us in no uncertain terms why we
should take the case from the state." (Id. at 255-56).
Mr. Thompson's testimony was largely confirmed by Ms. Palmer,
who became involved in the Louima case within a week to ten
days of the actual incident, even though the Office had not yet
made a decision to officially take the case. (P. Tr. at 6). Ms.
Palmer testified that Mr. Carter, who had already "establish[ed]
a very affirmative civil rights presence," was committed to
monitoring the case along with District Attorney Charles Hynes.
(Id. at 6-7). According to Ms. Palmer, the call to Thompson "gave us the first heads up as to the situation" but,
according to Ms. Palmer, Mr. Carter was already committed to
doing civil rights investigations and, in her opinion, the U.S.
Attorney's Office would have become involved even if Thomas had
not contacted Mr. Thompson. (Id. at 8).
Palmer explained that Carter had indicated within a "couple of
days" of the McAlary article that the Office was "going to
investigate" the Louima matter. (Id. at 74). Palmer testified
that "[t]he only question was whether [the Office] would
affirmatively take it over from the D.A.'s office or . . . do a
follow-along civil rights investigation." (Id. at 74-75). She
further testified: "I can affirmatively state, both from my
experience and my involvement in this investigation, that this is
a case that the office was going to do. Period. . . . [W]ith or
without a telephone call." (Id. at 11-12). She denied that
Figeroux, Thomas or Roper-Simpson ever said anything to her or,
to her knowledge, to anyone else in the Office that convinced the
Office to prosecute the case. (Id. at 13).
F. Retention of Rubenstein
At some point, Louima's uncle, the Reverend Philius Nicolas,
and Louima's cousin, Samuel Nicolas, expressed concern about the
way that Thomas and Figeroux were handling the case, noting that
they were "spending a lot of time with the media instead of
really working the case." (L. Tr. at 12).*fn25 Sanford
Rubenstein, Esq. had been representing another member of Louima's
family and was well known for his work in the Haitian community,
so Louima's family recommended that Rubenstein be brought onto
the case. (Id. at 12-13). According to Rubenstein, on August 11, 1997, a paralegal in
Rubenstein's office received a phone call from Herold Nicolas, a
cousin of Louima's and the brother of Samuel Nicolas, who was a
client of the Rubenstein firm. (R. Tr. at 32). Herold Nicolas
asked that a lawyer from Rubenstein's firm go to see Abner
Louima, who had been sodomized by a police officer. (Id. at
32). Rubenstein sent a lawyer to Coney Island Hospital, where the
lawyer was told by Figeroux that they would call him if they
needed him. (Id. at 33).
Subsequently, on August 13, 1997, Rubenstein was asked by his
client, Samuel Nicolas, to meet with Nicolas' father, the
Reverend Philius Nicolas, at Pastor Nicolas' church, the
Evangelique Church. (Id. at 33-34). The meeting was also
attended by Dr. Jean Claude Compas. (Id. at 34). Dr. Compas,
who had known Rubenstein for over 20 years and considers him to
be a friend, was also a friend of Pastor Nicolas, a leader in the
Haitian community. (Compas Tr. at 166-67, 170; see also R. Tr.
at 31).*fn26 Moreover, although Dr. Compas did not know
Abner Louima prior to August 9, 1997, Louima's mother and other
family members are patients of the doctor. (Compas Tr. at
167).*fn27 According to Dr. Compas, he and Rubenstein had
been working on community matters at the time Louima's story was
carried in the media, and they met with Pastor Nicolas to discuss
a possible community response to the Louima assault and to
organize a march in support of Louima. (Id. at
170-71).*fn28 At the church, Rubenstein met with members of Louima's family,
including Samuel and Philius Nicolas. (R. Tr. at 36). Thomas and
Figeroux were also present. (Id.) Problems between Rubenstein
and the T&F lawyers started almost immediately. According to
Rubenstein, Figeroux called Rubenstein "a pariah," who "fed off
the community," to which Rubenstein responded that he was well
respected in the Haitian community. (Id. at 35).
Roper-Simpson's notes*fn29 indicate that, at the church,
Rubenstein introduced himself to Figeroux who told Rubenstein
that he had never heard of him and that Rubenstein was a "???
vulture." (Ex. 84 at 6).*fn30 When Roper-Simpson became
concerned that Figeroux was going to lose his temper, she went
outside to find Thomas. (Id.) According to her notes, that was
a "[b]ig mistake. [Thomas] started calling Rub[enstein] all types
of names." (Id.) Inside the church office, Thomas "really lost
his cool. He started yelling." (Id. at 7; see also R. Tr. at
36-37). According to Ms. Roper-Simpson, Louima's wife ultimately
intervened and told Figeroux that T&F "were only handling
[c]riminal." (Ex. 84 at 7).
On August 15, 1997, Rubenstein was contacted by Samuel Nicolas
and was asked to visit Louima in Brooklyn hospital. (R. Tr. at
38). At that time, Louima decided to hire Rubenstein for the
purpose of representing the Louimas in the civil matter. (Id.
at 39; L. Tr. at 14). Rubenstein discussed the filing of a Notice
of Claim with Louima, and then contacted Mr. Rynecki, his partner
at the firm, who prepared the Notice of Claim and Retainer Agreement and
brought them to the hospital. (R. Tr. at 39). At that time,
Louima signed the retainer agreement with Rubenstein, which bears
the date August 15, 1997. (Id. at 41; L. Tr. at 66-67; Ex. 61).
Rubenstein acknowledged that during one of the early visits to
Louima while he was in Brooklyn Hospital, Louima told Thomas,
Figeroux and Rubenstein that he wanted them to work as a team on
his civil case. (R. Tr. at 71). Roper-Simpson's notes confirm
that Louima told the T&F attorneys to work together with the new
attorney. (Ex. 84 at 8).*fn31
Following his retention, on August 18, 1997, Sanford Rubenstein
filed the Notice of Claim with the City of New York on the
Louimas' behalf, alleging personal injuries, including
psychological and emotional distress injuries, under
42 U.S.C. § 1983, and seeking damages in the amount of $50,000,000.00 for
Abner Louima and $5,000,000.00 on behalf of Louima's wife for
loss of services. (Ex. 3). Dated August 15, 1997, the Notice of Claim is signed by
the Rubenstein firm and by the Louimas. (Id.) T&F do not appear
to have signed the Notice. (Id.)
An Amended Notice of Claim, dated November 4, 1997, was later
filed on behalf of the Louimas under the names of all of the
attorneys, CN&S, the Rubenstein firm, and T&F. (Ex. 4). In this
Amended Notice, the request for compensatory damages for both
Louimas remains at $55,000,000.00, but there is an added claim of
$100,000,000.00 for punitive damages. (Id. at 3).*fn32
On August 23, 1997, a rally was held at the 70th Precinct to
protest what had happened to Louima. (L. Tr. at 64; R.S. Tr. I at
57). The Reverend Al Sharpton confirmed that both Thomas and
Roper-Simpson attended rallies in connection with the Louima
matter. (Sharpton Tr. at 149-50, 164). Figeroux also attended the
march and testified that there were a number of marches that he
and Thomas participated in during this early period. (F. Tr. III
at 56-57). Louima learned about the rally through his family and
the media, but he did not recall that T&F or Roper-Simpson had
organized the rally. (L. Tr. at 64). He also learned of the
subsequent march across the Brooklyn Bridge to City Hall
involving 8,000 Haitians. (Id. at 65; R.S. Tr. I at 58-61).
Roper-Simpson testified that Louima gave her a note to read in
Creole to the crowd, which she did. (R.S. Tr. I at 59; Ex.
KC-15). Louima did not recall giving Roper-Simpson something to
read to the people at the rally nor did he recall discussing the march with T&F prior to the march taking place. (L. Tr. at
65). Instead, he recalled Mr. Rubenstein asking Louima for
something to say in Creole; in response, Louima told him to say
"Kimbe Le" which means "stay strong." (Id. at 65).
Louima testified that the decision to retain Johnnie Cochran
was precipitated by Louima's family's concern that T&F lacked the
necessary experience to handle the case. (Id. at 16). King
Keno, the lead singer of the band Phantom, told Louima that he
had a contact, Jenny Washington, who could call Johnnie Cochran
if Louima wished, so Louima told King Keno that it was "okay" to
call Cochran. (Id. at 16-17). Although Louima could not recall
the exact dates of his meetings with Cochran in the hospital, he
did recall that he signed the retainer agreement with CN&S during
his second meeting with Cochran. (Id. at 46-47). Louima also
recalled that he was in Brooklyn Hospital when Cochran's name was
first suggested to him. (Id. at 52).
Cochran confirmed Louima's testimony. Cochran testified that in
August 1997, he first became aware of Louima's story when he read
about it in the media. (C. Tr. I at 180).*fn33 He
subsequently received a call from Jenny Washington, the general
manager of station WLIB in New York. (Id.) Although Cochran
does not believe he knew Ms. Washington prior to that phone call,
he did speak to her and she told Cochran that Abner Louima wanted
to see him about representing Louima in this matter. (Id.) She
told him that Louima wanted him to contact King Keno, the leader
of the band that was playing at the Club Rendez-Vous on the night of the incident,
which Cochran did. (Id. at 181).*fn34
Cochran had previously met Carl Thomas during an appearance on
Cochran's Court TV show, so Cochran called Thomas and told Thomas
that Louima had asked to see Cochran. (Id. at 181). Cochran
told Thomas that he was going to the hospital and that either
Thomas or members of Thomas' team could meet him there. (Id. at
180-81). However, Cochran did not tell Thomas that Louima
intended to retain Cochran, because that information had not been
definitively conveyed to Cochran by King Keno. (C. Tr. II at 35,
99). According to Cochran, Thomas did not express any
reservations about Cochran's visit at that time. (Id. at 182).
Thereafter, on August 23, 1997, Cochran went to Brooklyn
Hospital for the first time.*fn35 (C. Tr. II at 83; C. Tr. I
at 183; L. Tr. at 17). Scheck testified that he accompanied
Cochran on this visit. (S. Tr. I at 27, 238).*fn36 Scheck
confirmed that he received a call from Cochran on approximately
August 23, 1997, in which Cochran stated that representatives of
Louima had contacted him and he was going to be visiting Louima at the hospital. (Id. at 27).
Cochran also told Scheck that he wanted Scheck to accompany him
to the hospital, and that he had notified Thomas. (Id.)
Although Louima was hooked up to various machines and intubated,
according to Scheck, he seemed "alert and comparatively in good
spirits. He seemed very happy to see us." (Id. at 28). Cochran
recalled that on his first visit with Louima, there were a number
of people there, including either Thomas or Figeroux or
both.*fn37 (C. Tr. II at 83). Scheck also testified that
Thomas and Figeroux were both present. (S. Tr. I at 27-28). Also
present at the time were several members of Louima's family,
including Louima's father, his brother Jonas, and Pastor Nicolas.
(C. Tr. I at 183).
Scheck testified that Cochran did most of the talking. (S. Tr.
I at 28). Cochran recalled that Louima knew who Cochran was; they
spoke briefly, exchanged greetings and Cochran met the other
people there. (C. Tr. I at 183-84). Louima indicated that he
wanted Cochran to represent him and that Cochran should work out
the details with Louima's family. (Id. at 184; S. Tr. I at 28).
According to Louima, Cochran responded that he did not have any
problem with that if that was what Louima wanted. (L. Tr. at
18).*fn38 According to Cochran, none of the lawyers who was
present at this meeting expressed any objection to Louima's
retention of Cochran. (C. Tr. I at 188). Cochran also recalled
giving Louima a copy of his book, A Journey to Justice, an
autobiography, and he agreed with Roper-Simpson's testimony that
photographs were taken during the first visit. (Id.; R.S. Tr. I
at 71-74; Court Exs. 5-A, 5-B, 5-C; Exs. KC-8, 9, 10). According
to Louima's testimony, Cochran told Louima that he was sorry about what had happened to Louima, and advised him
"to stay strong." (L. Tr. at 17).
Louima also recalls receiving a copy of Cochran's book, which
Cochran signed for Louima. (Id.) Louima told Cochran that he
was impressed to meet him because he had only seen him on
television before. (Id. at 18). Louima took Cochran's business
card and said he would call Cochran back. (Id.) Louima then
consulted with his family and he told them about his interest in
hiring Cochran. (Id. at 19). Some family members were concerned
that Cochran's prior representation of O.J. Simpson might hurt
Louima with a jury, but Louima was not concerned. (Id.)
After Louima decided to hire Cochran, Cochran came to the
hospital a second time. (Id. at 19-20).*fn39 Cochran told
Louima that he would also be working with Neufeld and Scheck, and
Louima approved. (Id. at 20; C. Tr. I at 193).*fn40 During
the second meeting with Louima in the hospital, Cochran brought a
copy of the retainer agreement which bears the date August 25,
1997 next to Louima's signature.*fn41 (C. Tr. I at 192-193;
Ex. 1). Louima asked Cochran to be the lead lawyer and told
Cochran that he would be working with T&F. (L. Tr. at 20-21, 25).
Cochran told Louima that the lawyers could work together; "I thought I could work with
anybody." (C. Tr. I at 194). Although Cochran understood at that
time that T&F were Louima's lawyers, Cochran did not know what
role Roper-Simpson played. (Id. at 195). After speaking with
Cochran, Louima told Thomas and Figeroux that he was hiring
Cochran and that they should work together. (L. Tr. at 23).
According to Louima, Thomas and Figeroux were not happy and they
told Louima that one of their concerns was that Cochran and his
partners were "not from the community." (Id. at 24).
Soon after the signing of Exhibit 1, all of the lawyers met at
the hospital, at which time Louima told them to work together as
one team on his behalf. (L. Tr. at 22-23, 24; C. Tr. I at 195-96;
R.S. Tr. I at 76).*fn42 According to Cochran, he was there,
along with Scheck; also present was Rubenstein, and either Thomas
or Figeroux. (C. Tr. I at 196; R.S. Tr. I at 76).*fn43 At
the meeting, Louima gave the attorneys directions to work as a
team and designated Cochran lead counsel, to be in charge of the
case, and "to make decisions." (L. Tr. at 24-25; C. Tr. I at
196). Cochran believed that Louima also told the lawyers that
they should speak to Louima before they spoke to the press. (C.
Tr. I at 197). No one objected to that instruction. (Id.)
However, according to Roper-Simpson, Thomas was angry that
Cochran was coming onto the case; he accused Cochran of ethical
violations, and threatened to quit. (R.S. Tr. I at 80). Later,
Louima learned that there had been an argument between the
lawyers about Louima's decision to designate Cochran as the "lead"
attorney, and it was subsequently decided that Thomas would be
the lead attorney "for the public, the community, and everybody
to know," but that any decision-making would be Cochran's
responsibility and Cochran would be the lead attorney if the case
went to trial. (L. Tr. at 25).
J. The Retainer Agreements
The August 25, 1997 letter of retention signed by Louima
clearly states that Cochran, Neufeld and Scheck were being
retained "to investigate and pursue a claim for personal injury
and civil rights violations" and to represent Louima in
connection with the state and federal criminal and civil rights
investigations relating to this incident. The handwritten
addition, initialled by Cochran, confirms that "the total
attorney fees for all attorneys representing Louima shall not
exceed 33 1/3%. JLC Jr." (Ex. 1).
On October 6, 1997, the attorneys entered into an "Agreement By
and Between Counsel" (the "Agreement") in which it was agreed
that all signatories "will jointly handle the civil matters" of
the Louimas, will be "collectively . . . responsible for the
preparation of all pleadings," shall provide copies of written
correspondence to the others within 48 hours, and promptly report
oral communications to each other. (Ex. 60). The Agreement
specifies that Thomas would "have the title of lead counsel" and
that "all important attorney decisions in the case will be made
by consensus." (Id.) Once trial began, Cochran was to be given
the title of lead counsel. (Id.)
The Agreement, which was signed by Rubenstein, Thomas (on
behalf of T&F), Cochran, Scheck and Neufeld,*fn44
divided the fees among counsel and
contained a paragraph in which it was agreed that each of the
assumes joint responsibility (as that term is applied
in Disciplinary Rule 2-107 [A] ), for the
representation of ABNER LOUIMA and MICHELINE LOUIMA
in this matter, and that the division of fees among
counsel . . . recognizes and assumes that the
division of fees will not necessarily be proportional
to the amount of work performed by each such
signatory. Each of the signatories to this agreement,
on behalf of themselves and the firms and lawyers
they work with, have considered the matter of the
division of fees in light of D.R. 2-107(A) of the New
York Lawyer's Code of Professional Responsibility and
has concluded after due deliberation, that the total
fees to the signatories to this agreement in the
aggregate, and to the signatories to this agreement
on an individual basis, will not be unreasonable or
excessive in light of factors, including those set
forth in D.R. 2-106(b) of the New York Lawyer's Code
of Professional Responsibility.
(Id.) Thereafter, on November 3, 1997, the Louimas executed
another Retainer Agreement as to all the attorneys T&F, CN&S,
and the Rubenstein firm in which it was agreed that the total
amount of legal fees, representing 33 1/3% of any total net
recovery, would be divided equally, with CN&S, T&F and the
Rubenstein firm each receiving "eleven (11) and one-ninth (1/9)
percent." (Ex. 2). The November 3, 1997 Retainer Agreement
further specified that the lawyers "will work jointly on this
matter and will participate and share responsibility in the
prosecution of the claim." (Id. at 2).
On September 18, 1998, after T&F had ceased to represent the
Louimas, the Rubenstein firm and CN&S entered into an "Amendment
to Agreement By and Between Counsel." (Ex. 5). This agreement
noted that T&F were "no longer involved" in the case as of
January 23, 1998 and provided that if T&F "as the result of their cessation of representation,"
were not to receive their 11 percent of the fees, then T&F's
share would be divided as follows: (a) the Rubenstein firm would
"receive eleven (11) percent of any portion of the eleven (11)
percent of the gross recovery to which Thomas & Figeroux are not
entitled to;" and (b) CN&S would "receive 89% of the 11% of the
gross recovery to which Thomas & Figeroux are not entitled to."
K. Louima's First Meetings with the U.S. Attorney's Office
Prior to the retention of CN&S, the U.S. Attorney's Office had
attempted to arrange a meeting with Louima, scheduled for August
26, 1997. (N. Tr. I at 13-14). Peter Neufeld testified that on
that day, Cochran and Scheck asked him to go to the hospital to
be with Louima during the interview by federal prosecutors
because neither Cochran or Scheck was available to attend the
meeting. (N. Tr. I at 14). Since Neufeld had been on vacation out
of the country on the date of Louima's assault, he did not become
involved in the case until that morning of August 26, 1997, when
he went to the hospital where he met Louima and Figeroux. (Id.
Neufeld testified that when he arrived at the hospital, Louima
was lying in a hospital bed, hooked up to an I.V. and various
other devices; "[h]e appeared to be very, very tired and in a
certain amount of pain." (Id. at 15). At the time, Louima was
on several painkillers in addition to other medication. (Id.)
Before the government interview began, Neufeld asked Figeroux
for the details of what had happened to Louima, but "Figeroux
told me he was not familiar with the details. He only knew the
case in broad stroke." (Id. at 14). Neufeld did not think that
it was a good idea to allow Louima to speak with the government
before the attorneys had debriefed their own client. (Id. at
14-15). Neufeld was also concerned that Louima had already testified before a state
grand jury via videotape, explaining, "it is my experience that
when you have a client or a witness who is in that kind of
physical condition and psychological condition, where you know he
is not going to die, that one would be prudent and wait until he
is feeling better so you can interview him thoroughly and you can
make sure that . . . he testifies with all of his faculties."
(Id. at 16). When Neufeld voiced these concerns, Figeroux
responded that it was "[t]oo late for that. We're going forward."
Shortly thereafter, Ms. Palmer arrived with Mr. Thompson and an
FBI agent. (Id. at 17). Neufeld tried unsuccessfully to have
Ms. Palmer postpone the interview. (Id.) As the interview
progressed, it became very clear that Louima was in pain; his
answers were disjointed and at one point, one of the gauges on
one of the machines signaled that he was in a danger zone,
requiring the nurse to come in. (Id.) Neufeld then urged that
the interview stop for fear it was exacerbating Louima's
Ms. Palmer also described her first meeting with Louima while
he was still in Brooklyn Hospital. (P. Tr. at 15). She described
him as "physically uncomfortable" due to his "significant
injuries" and "a little reluctant" because she and Ken Thompson
were from the government. (Id.) Over the next three months,
after Louima was released from the hospital, Ms. Palmer, Mr.
Thompson and the agents began to spend a significant amount of
time with Louima and he eventually developed "a very strong
relationship of trust" in the government team. (Id. at 15-16).
Among other things, the AUSAs spent time with Louima at his home
and, according to Ms. Palmer, both Scheck and Neufeld helped to
establish a good relationship between Louima and the government
which enabled the government to move its investigation forward.
(Id. at 16). By contrast, Ms. Palmer testified that based on her
interactions with Figeroux, she felt that he did not trust the
government or what they were trying to do. (Id. at 16-17). One
example of this was Figeroux's reaction to the decision of the
Office to include both FBI agents and officers from the NYPD on
the investigative team. (Id. at 17-18). Figeroux, upset that
NYPD officers would be involved, questioned the U.S. Attorney's
commitment to a serious investigation. (Id. at 18). Figeroux
was, according to Ms. Palmer, present at the first meeting in the
hospital and then again during one of the first visits at
Louima's house; "[b]ut other than that, [she did not] have a
recollection of him being present." (Id.) Palmer testified that
on several occasions, she made it clear to Figeroux that she did
not think he was being helpful in getting to the bottom of who
was with Louima at the Club Rendez-Vous: "He was not being
helpful in building that bridge" with the family. (Id. at
Some time after the August 25th retainer agreement was signed,
and after Neufeld had gone to the hospital with Cathy Palmer to
question Louima, arrangements were made to have all of the
lawyers meet to discuss how they would proceed as a team to
pursue the case. (S. Tr. I at 32-33). The meeting was held in
Rubenstein's office on Court Street in Brooklyn. (Id. at 33).
Thomas, Figeroux, Cochran, Scheck, and Rubenstein were present
at the meeting. (S. Tr. I at 33-34).*fn45 Neither Scheck or
Cochran could recall if Roper-Simpson was there. (Id.; C. Tr. I
at 198-99).*fn46 According to Scheck, one of the first things that happened was
that he took out his laptop computer to take notes of the
meeting. (S. Tr. I at 34; C. Tr. I at 199). "Almost immediately
as I did so, Mr. Figeroux became very upset and he told me to
close my `fucking laptop computer.' What are you trying to do,
intimidate me with your technology?" (S. Tr. I at 34-35; Ex. 55;
see also R.S. Tr. I at 83-84; R. Tr. at 43-44).*fn47
Thomas tried to calm Figeroux down and it was clear to Scheck
that they were both "very angry." (Id. at 35). Mr. Cochran
described Figeroux as "acting as if he was insane." (C. Tr. I at
198-99). "Not only were there hostile words but [Figeroux was]
just trying to intimidate him with his presence." (Id. at 202).
Figeroux conceded using these statements during this incident.
(F. Tr. II at 68-69). Figeroux admitted that, taken "out of
context," his comments "appear[ed] to be inappropriate." (Id.
at 70). However, in T&F's papers, Figeroux attempts to justify
his behavior at this meeting as "readily understandable when
placed in the context of Cochran's duplicity and evasion in
dealing with [T&F] at this time of his entry into the case that
[T&F] had worked so hard and so successfully to build." (T&F Mem.
After this initial incident, Thomas and Figeroux asked to speak
privately with Cochran, telling Cochran that Scheck and Neufeld
knew nothing about civil rights. (C. Tr. I at 204). When Cochran
tried to dissuade them of this notion, Thomas and Figeroux
accused Cochran of being "an Uncle Tom," and they argued that
because they were Black like Cochran, he "should . . . favor
them, and should kick Scheck and Neufeld off the team." (Id. at 204-05; S. Tr. I at
40-42). Thomas said to Cochran, "`Why are you practicing with
these two Jew lawyers [referring to Neufeld and Scheck] . . . you
should be working with us' Mr. Figeroux and Mr. Thomas
`because we're lawyers for the community.'" (S. Tr. I at 41).
Figeroux also accused them of not caring about police brutality
issues. (Id.) Cochran testified that:
First of all, they accused me of being Uncle Tom for
bringing in these Jewish lawyers. Then they referred
to them other than as Jewish lawyers. They used a
terribly pejorative term.*fn48 . . . They
indicated I should not be working with them
[referring to Neufeld and Scheck], and that they know
nothing about civil rights. That these lawyers,
Thomas and Figeroux, were from the community. That
Scheck and Neufeld were only interested in the money.
(C. Tr. I at 204). Cochran then explained that he "had great
faith" in Neufeld and Scheck, that they "were honorable people,"
and "some of the best lawyers that [he] knew." (Id. at 205).
Figeroux stated: "`We're the people that built this case. You
don't care about the community. All you people are interested in
is money.'" (S. Tr. I at 35).
Cochran was upset by the Uncle Tom remark and he told Thomas
and Figeroux that he was "black before they were even born." (C.
Tr. I at 205). He then detailed his history as a lawyer and his experience with police brutality cases. (Id.; S. Tr. I at 41).
He also told them that he had been trying civil rights cases
before they even thought about going to law school and that they
had never tried a civil rights case. (C. Tr. I at 205) He told
them that this was a good opportunity for them to learn something
and he encouraged them to do that, but he "didn't think they were
going to get anywhere with their racist views and acting in this
insane manner." (Id.)
Cochran told them that the important thing was what was best
for Louima and the case, not the attorneys and that if it would
"help a young lawyer in his community," he would agree to allow
Thomas to be the community spokesperson. (Id. at 206). However,
Cochran stressed that they had to clear everything with Louima.
(Id.) Figeroux and Thomas told Cochran that they were from
Trinidad and had a special relationship with Peter Noel at The
Village Voice. (Id.) They told Cochran that they could "slip
him information" and "get anything they wanted to in the press."
(Id.) Cochran warned them not to do that, reminding them of
Louima's instructions to clear press matters with Louima first.
(Id. at 206-07). According to Cochran, they responded
"negatively." (Id. at 207).
Cochran also told them it was "malpractice for them to allow
Abner to go before the cameras when he is sedated, to have him be
interviewed like that before the state grand jury." (Id.) He
told them they did not know what they were doing and that they
should "try to learn before they got this case all totally messed
up." (Id.) According to Cochran, Thomas and Figeroux did not
dispute any of this. (Id. at 208).
After meeting with Thomas and Figeroux separately for fifteen
to twenty minutes, Cochran returned with Thomas and Figeroux to
Rubenstein's office where the other lawyers were waiting and they
all discussed the fact that this was about Louima and not
individual personalities. (Id.) It was also agreed at this time that Thomas would act as spokesperson to the
community, and that Scheck and Figeroux would act as liaison with
the U.S. Attorney's Office. (Id. at 208-09; S. Tr. I at 46; Ex.
Scheck testified that an attempt was made to reach a truce and
eventually everyone agreed that it was important to work as a
team. (S. Tr. I at 42). They also addressed the "importance of
not leaking, working in a united way, because in high profile
cases dissension among a legal team . . . can create serious
They also discussed at that meeting the concept of targeting
the Patrolman's Benevolent Association ("PBA") because its
practices had contributed to covering up police brutality in the
past. (Id.) They discussed possible Monell claims and the
idea of attacking the procedures by which the PBA and the police
department dealt with allegations of police brutality. (Id.)
Figeroux and Thomas stated that they had not thought about these
ideas, although Thomas mentioned a legislative initiative to
require all police officers to live within New York City. (Id.
There was, at that meeting, a general agreement that attorneys'
fees would be split one-third for Mr. Rubenstein, one-third for
T&F, and one-third for CN&S. (Id. at 45). The attorneys also
discussed the necessity of providing for Louima's security when
he left the hospital. (Id.) Subsequently, a meeting was held
with Ms. Palmer, Figeroux, Scheck, and Rubenstein to discuss
compensation for Louima, as well as security arrangements. (Id.
Cochran described the relationship between CN&S and T&F as "oil
and water. It was a difficult relationship from the very
beginning." (C. Tr. I at 213). Cochran described Thomas as "not only bellicose, but always threatening." (Id. at
214).*fn49 Between August 1997 and January 1998, Cochran
attended approximately ten meetings with Thomas and Figeroux to
plan strategy and divide up responsibilities. (Id. at 217-18).
According to Cochran, at "almost every meeting" T&F would bring
up the racial issue, contending that CN&S were interested only in
money and not the underlying issues in the case. (Id. at 219).
M. The Civil Investigation
In late August 1997, the attorneys began to arrange for
Louima's care and to make preparations to bring a civil action on
Neufeld described his primary role in the early part of the
case as encompassing three things: (1) improving Louima's
physical health; (2) improving Louima's mental condition; and (3)
retaining an investigative agency to work with CN&S in
investigating Louima's civil rights claims. (N. Tr. I at 19-24).
Given concerns about possible long-term damage to Louima's
bladder and blockage to his colon, Neufeld contacted experts at
Montefiore, Mt. Sinai and New York Hospitals. (Id. at 19). The
lawyers were also concerned about obtaining medical testimony to
disprove the claims that Louima's injuries were the result of gay
sex. (S. Tr. I at 51).
Thomas objected to Mt. Sinai and Montefiore Hospitals,
allegedly because they mainly treated white patients. (N. Tr. I at 22). In the end, it was agreed,
through Neufeld's efforts, that medical experts would consult
with Louima's doctors at Brooklyn Hospital. (Id. at 20).
Neufeld also contacted psychiatric experts at Massachusetts
General, Mt. Sinai, and Columbia Hospitals, who had experience
dealing with victims of trauma and torture. (Id. at 21). They
finally retained Dr. Kasimir, who was familiar with the Haitian
experience and with torture victims, as a treating psychiatrist.
(Id.; S. Tr. I at 51). Neufeld also worked with Dr. Kasimir
during the criminal proceedings in litigating the question of
defendants' access to Louima's psychiatric records. (N. Tr. I at
21-22). Neufeld also secured other experts to testify on the
issue of post-traumatic stress problems. (Id. at 22). Neufeld
testified that with respect to both the issue of Louima's medical
and psychiatric care, he consulted with Thomas and Rubenstein.
(Id. at 23).
Neufeld attributed the retention of a private investigative
agency to the uncertainty of criminal convictions and the fact
that there was no guarantee that the government would pursue a
pattern and practice case. (Id. at 27). In particular, Neufeld
was concerned with the "blue wall" of silence and the possibility
that Police Department personnel would attempt to obstruct
justice. (Id. at 29). His concerns stemmed from the service of
summonses by the police on the owner of Club Rendez-Vous,
alleging that they were running a club where there was
"inappropriate sexual activity." (Id.) These summons were
served at a time when claims were being made that Louima's
injuries were the result of consensual homosexual activity.
(Id.) In searching for an investigative agency, Neufeld
interviewed three firms, and he consulted with Thomas and
Rubenstein about all three. (Id. at 28). Both Thomas and
Neufeld preferred the Walker Investigative Agency, so it was the
consensus of all the attorneys that the Walker firm be retained.
(Id. at 28). The Walker Agency interviewed people who were known to Louima
at the Club Rendez-Vous on the night of the incident, including
members of the band, the Phantoms, that was playing that night.
(Id. at 30). The investigators took photographs, inside and
outside the Club, as well as photographs of the route taken by
the squad car on the way to the precinct. (Id. at 32). One of
the things Neufeld was trying to determine was whether there were
other witnesses who might have been present when the squad car
stopped between the Club and the precinct, during which time
Louima claimed he had been beaten by the officers. (Id. at
Neufeld also testified that because Louima's attorneys were
interested in pursuing a pattern and practice case, they wanted
the Walker Agency investigators to interview other people who
alleged that they had been brutalized in the same precinct.
(Id. at 34). Mr. Neufeld met with Ms. Cornfeld of the U.S.
Attorney's Office to discuss the pattern and practice
investigation. (Id. at 35). At her request, Neufeld arranged a
meeting with the police brutality bar to encourage lawyers who
had clients claiming police abuse to come forward with their
clients and describe not only what happened to them but also the
response, if any, of the Civilian Complaint Review Board ("CCRB")
and IAD. (Id. at 35-36). Neufeld testified that he briefed
Thomas on his meetings with the police brutality bar and with
Leslie Cornfeld. (N. Tr. II at 161). Among other things, Neufeld
met with the head of Civil Rights Division of the Department of
Justice, who had investigated and prosecuted pattern and practice
cases in other parts of the country, not only to lobby the
Justice Department to proceed with an investigation into Louima's
case but to discuss Neufeld's ideas about appropriate injunctive
relief. (Id. at 36-37). Eventually, however, the Justice
Department did not file a pattern and practice action. (Id. at
As part of the civil case before this Court, CN&S litigated and
obtained authorization to take photographs inside the 70th Precinct to show that the distance
between the bathroom, the sergeant's desk, the interview room and
the holding cell was such that it was likely that "every single
police officer" on the first floor of the precinct house knew
what had happened to Louima and yet chose not to come forward.
(Id. at 33). The U.S. Attorney's Office did not object to what
the lawyers were doing; in fact, Neufeld testified that "[CN&S]
kept them apprised of the things that we were doing of that
nature." (Id. at 34).
With the authorization of Louima, Neufeld met with the New York
State Legislative Black Caucus in New York near the end of
September 1997 to discuss the systemic causes of the Louima
tragedy and what could be done to remedy them. (Id. at 37-38).
Neufeld remembered that either Thomas or Figeroux went with
Neufeld to that meeting but had to leave shortly after the
meeting commenced. (Id. at 168). Cochran testified that he
played a role in organizing "grass roots efforts" in the Black
community to support Louima, including contacting Earl Graves of
Black Enterprise, Ed Lewis of Essence magazine, Mayor Dinkins,
Congressman Rangel, Reverend Sharpton, and Carl McCall. (C. Tr. I
at 212). Neufeld also met with the legal counsel to the N.Y. City
Council, who turned over all notices of claims that had been
filed with the City during the prior year alleging misconduct by
police officers. (N. Tr. I at 38-39). Neufeld, working with a
group of law students from Columbia University School of Law,
divided these notices of claims into categories for the Monell
pattern and practice case. (Id. at 38). Neufeld also met with
the Counsel to the New York State Assembly to discuss possible
legislation. (Id. at 39).
N. Assistance to the Government's Case Shortly after the press reported that CN&S was joining the
Louima legal team, Scheck received a call from a former student,
Joanne Richardson, who was a former Kings County Assistant
District Attorney, then in private practice. (S. Tr. I at 52).
She told Scheck about Sonia Miller, a nurse at Coney Island
Hospital, who had information relevant to the case, but who did
not want to speak to the authorities. (Id.) Scheck arranged to
meet with Ms. Richardson, her partner, and with Ms. Miller.
(Id.) They discussed the practice of taking police brutality
victims to Coney Island Hospital as opposed to other Brooklyn
hospitals and Ms. Miller's role in calling Internal Affairs.
(Id. at 52-53). After speaking with Ms. Miller, Scheck notified
Figeroux and they arranged to have Ms. Miller meet with federal
prosecutors. (Id. at 53). Ms. Palmer noted that Ms. Miller, who
was one of the first nurses to see Louima in the hospital, had
not previously been made available to the U.S. Attorney's Office
or the District Attorney's Office. (P. Tr. at 23). Once Ms.
Miller met with the government, she provided information in an
interview that Ms. Palmer described as "a very significant part
. . . of our initial understanding of what happened that night in
the hospital." (Id.)
After Louima was released from the hospital on October 10,
1997, the government met with Louima for numerous debriefings.
(S. Tr. I at 72). Although generally, it was decided that Scheck
and Figeroux would be the liaison with the government during
these debriefings, at some point Figeroux stopped attending.
(Id. at 53-54, 72). During the first meeting in Louima's home,
both Scheck and Figeroux were present along with Palmer, Thompson
and an FBI agent. (Id. at 54). Prior to the arrival of the
government, the attorneys had a discussion with Louima about the
need to be truthful. (Id.) During the subsequent debriefing,
Palmer and Thompson asked Louima to describe, in "very
comprehensive detail[,]" where and how everything had happened.
(Id.) Palmer and Thompson "were pressing [Louima] very hard on certain points," and "expressing
some disbelief . . . about certain details." (Id. at 54-55).
During this meeting, Figeroux expressed to Scheck and to Louima
some suspicions regarding why the government was pressing Louima
so hard. (Id. at 55-56). Figeroux made some of these remarks in
the presence of AUSAs Thompson and Palmer. (Id.)
Scheck noted that at this point in time, "there was a
tremendous amount of distrust and, frankly, paranoia, among
Louima, his family and friends, others in the community, and
suspicion of all police officers involved in [the]
investigation." (Id. at 56). There was also a "sense of tension
and some distrust in terms of these debriefings" with federal
prosecutors. (Id.) According to Scheck, he was trying to
persuade Louima to trust the prosecutors as his allies and be as
accurate and truthful as possible; Figeroux, on the other hand,
expressed distrust of the government, both through his demeanor
and by questioning Palmer as to why she was pushing Louima
regarding certain details of his account of the night of the
incident. (Id. at 56-57). However, Thompson testified that,
during the fall of 1997, Thomas and Figeroux were helpful in
trying to "get [the government's] investigation down the road."
(T. Tr. at 235).
After the first two debriefings, Ms. Palmer spoke to Scheck and
Neufeld and told them that she was suspicious of what Louima had
been saying about who was with him and what had happened when
Volpe was assaulted outside the night club on the night of the
incident. (S. Tr. I at 58). Ms. Palmer testified that the
government experienced problems with certain witnesses in the
investigation of what occurred at the Club Rendez-Vous. (P. Tr.
at 19). There were a number of interviews with Louima's friends
and family members regarding the events earlier in the evening
prior to Louima's assault, but according to Ms. Palmer, the
details "weren't hanging together. They weren't making sense."
(Id. at 19-20). Louima had maintained that he was with his cousin Herold
that night, but had made no mention of his cousin Yves Nicolas,
also known as Jay. (S. Tr. I at 58). Palmer had interviewed
Herold and several others, but she did not believe she was
getting the full story. (P. Tr. at 19-20). In particular, Ms.
Palmer cited the initial meetings with Herold who "was frankly,
just not credible. And the more we tried to get to the bottom of
it, the more stories changed, and it was very problematic."
(Id. at 20). With respect to Jay, Thompson testified that the
government originally did not know about his involvement on the
night of the incident. (T. Tr. at 260).
Palmer asked Scheck and Neufeld to see if they could get to the
bottom of the events leading up to the assault on Louima with
Louima and the witnesses. (P. Tr. at 20-22; N. Tr. I at 50). Ms.
Palmer explained that she had "developed what I thought was a
good working relationship with Peter [Neufeld] and Barry
[Scheck]." (P. Tr. at 20-21). Scheck testified that they tried to
involve Figeroux in the process, but he "openly said to [Scheck]
that he was suspicious and resentful that Ms. Palmer, in
particular, and Mr. Thompson" were looking closely at the
testimony of these cousins and that they were looking to CN&S for
assistance. (S. Tr. I at 59). One of the problems Scheck
identified was that Figeroux had been the first person to bring
these family members to the government and now their credibility
was being questioned. (Id. at 60).
Accordingly, Neufeld and Scheck spoke to these witnesses and
determined that Yves was in fact the person who actually struck
Volpe, not Louima. (Id. at 61). However, because Yves had
immigration problems, his relatives had asked Louima to protect
him. (Id.) So Neufeld and Scheck asked a lawyer, Rick
Finkelstein, to speak to Yves and eventually, Neufeld was able to
get all of the witnesses to come forward with the true story.
(Id.) According to Ms. Palmer, having Yves come in and admit that it
was he and not Louima who had punched Office Volpe "was an
important break-through for us to start piecing together the
facts of what really happened that night." (P. Tr. at 22). Mr.
Thompson confirmed that Yves Nicolas' admission of his
involvement was "a big deal in the case" because before that the
government did not know who hit Volpe. (T. Tr. at 260).
Although Thompson was not sure if it was Figeroux or Neufeld
who brought in Yves Nicolas (id. at 260-61), he testified that he
recalled that both Figeroux and Neufeld played a role in getting
Gregory Normil, Louima's friend, to cooperate. (Id. at
262).*fn50 Palmer testified that either Thomas or Figeroux
first brought Normil to the government. (P. Tr. at 92). It was
Thompson's view that Figeroux "endeavored, like the other
attorneys, to get these witnesses to tell us the truth because we
had people coming in [and] just outright lying to us." (T. Tr. at
261). According to Thompson, Figeroux was "instrumental" in
keeping everyone informed of Louima's physical status and Neufeld
took the lead regarding the payment of Louima's medical expenses.
(Id. at 229).
Ms. Palmer, however, explained that she "did not feel that
Brian [Figeroux] or Carl [Thomas] assisted us. As I said, my
interactions with Brian gave me the very strong sense that he was
not completely trustful of our investigation. I felt that Barry
and Peter and Johnnie, who I interacted with to a lesser extent,
did have confidence in our ability . . . and were willing to work
with us to get it done." (P. Tr. at 22). O. The Tacopina Meetings
During the investigative phase of Louima's case, Cochran
received a call from Joseph Tacopina, the lawyer representing
defendant Thomas Weise, one of the police officers charged in the
criminal action. (C. Tr. II at 24-25; S. Tr. I at 64). Tacopina
invited Cochran to have lunch and meet with him and Russell
Gioiella, Weise's other attorney. (C. Tr. II at 25; S. Tr. I at
64; N. Tr. I at 40-41). At that time, there was no discussion as
to what topics would be covered at the luncheon. (C. Tr. II at
25). There were ultimately two meetings between Tacopina,
Gioiella and CN&S one on November 20, 1997 and one on November
26, 1997. (S. Tr. I at 65; N. Tr. I at 48). The initial lunch
meeting occurred at a crowded Italian restaurant in Manhattan and
was attended by Tacopina, Gioiella, Cochran and Neufeld. (N. Tr.
I at 41). Neufeld testified that it was only at the last minute
that Cochran suggested that Neufeld come along, and according to
Neufeld, the only thing that was agreed before the luncheon was
that neither Cochran or Neufeld would reveal anything that had
they learned from their client. (Id.) Not only did they not
tell Thomas and Figeroux about the meeting, but according to
Neufeld, neither Rubenstein or Scheck was told about this first
meeting because "we didn't think much of it at the time." (Id.
According to Neufeld, Tacopina did most of the talking but
Gioiella spoke as well. (Id.) They were trying to persuade
Cochran and Neufeld that Thomas Weise, their client, "was really
a good guy," that he was "in the wrong place at the wrong time,"
and that "perhaps others were at fault but not him." (Id.)
Tacopina told them that Justin Volpe had a history of other
incidents and that his supervisor had "turned a blind eye" to Volpe's behavior, information which
Neufeld thought might later be useful in the civil suit against
the supervisor. (Id. at 42-43). Based on Tacopina's description
of what happened that night from Weise's perspective, Neufeld
believed that Weise's version of events contained false
exculpatory statements that might be used against Weise in the
civil case. (Id. at 43). After the meeting, Neufeld prepared
notes as to what had transpired. (Id. at 44; Court Ex. 1).
A few days later, Tacopina called and asked for a second
meeting. (Id.) Since Cochran was out of town, Scheck and
Neufeld met with Tacopina for breakfast at the Cupping Room in
Soho. (Id. at 44, 46). Scheck attended the second meeting
because Weise's lawyers had indicated that they had useful
information about acts of police brutality involving Justin
Volpe. (S. Tr. I at 66). Since Weise was a PBA delegate, Scheck
thought Tacopina and Gioiella might have information that could
be used in connection with Louima's civil conspiracy claim.
(Id.) Even assuming that the information Weise's attorneys
provided was not truthful, Scheck believed that the false
information could then be used against Weise in a civil
proceeding. (Id. at 66-67). According to Scheck, CN&S made it
clear, as a condition of the meeting, that they were not going to
say anything regarding what Louima had told them or what they
knew about the case; they were just listening. (Id. at 67).
They also made it clear that the meeting would not be a secret
meeting; it was to be held in a public restaurant on both
T&F contend that they were not told of the meetings with
Tacopina in "a deliberate act of exclusion," "fuel[ing] the
impression that [CN&S] sought to exclude [T&F] from important
decisions affecting the case." (T&F Mem. at 26; see also R.S.
Tr. I at 96-98, 194-95; F. Tr. I at 138). Indeed, Scheck admitted
on cross-examination that there was no effort to include Thomas
or Figeroux in either the first or second Tacopina meeting. (S.
Tr. I at 149-50). Rubenstein also was unaware of the Tacopina meetings until some time after the meetings had
occurred. (R. Tr. at 74). On the other hand, Scheck testified
that because Tacopina had appeared on Cochran's television show
"many times," "it was not a big event that they were asking us to
go out to lunch." (S. Tr. I at 151).
Palmer was shocked when she learned about the Tacopina
meetings,*fn52 particularly since they occurred around the
time the government was trying to elicit Weise's cooperation; "I
was pretty mad." (Id. at 50). She told Scheck and Neufeld that
she was upset that the government had not known about the
meetings, because she thought that the meetings might have
contributed to Weise's decision not to meet with the government.
(Id. at 50-51). The government had been trying to get Tommy
Weise to meet with them for a proffer session to see if he would
cooperate, and Tacopina had already cancelled at least one
proffer session prior to the meeting with CN&S. (T. Tr. at 240;
P. Tr. at 50-51). Thompson testified that he "thought it was
wrong that we didn't know about these meetings, and I thought we
should have been told about them." (T. Tr. at 239-40). The
meetings presented problems in that the government "had to devote
time to find out what was going on and what they learned about
the initial contact." (Id. at 240). Thompson testified that
CN&S told the prosecutors that they had decided not to tell the
government because they did not want to taint the government's
investigation; they were concerned about Tacopina's purpose in
meeting with CN&S and they were not certain that what he was telling them was true. (Id. at 244).*fn53
Mr. Thompson stated that unfortunately, CN&S' meetings with
Tacopina and Gioiella "robbed [the government] of the ability or
potentially did because I don't know what caused Weise not to
come in, but potentially robbed us of the ability to sit Tommy
Weise down and hear his statement from himself. . . . And to this
day, I felt it was wrong." (Id. at 244-45). Mr. Thompson
indicated that he did not understand why CN&S did not tell the
government about the meetings without going into the substance of
what was discussed. (Id. at 246). However, he indicated that he
did not believe that the CN&S meeting "played a role" in the
government's inability to prosecute Weise. (Id. at 250-51).
Mr. Vinegrad testified that he had two reactions to the
Tacopina meetings. (V. Tr. at 245). He testified that if he had
known about the meetings beforehand, he would have been concerned
because the government did not want anything to dissuade Wiese
from coming in to speak to the government. (Id. at 245,
271-72). He also would have been concerned if Louima's lawyers
had shared information about the investigation with Tacopina.
(Id.) However, given that CN&S had spoken to Tacopina, Vinegrad
"thought that there was potentially some strategic advantage in
[the government] being able to offer or impeach Mr. Wiese, should
he testify, with the statements that his attorneys made" during
the meetings, and he undertook to get a written stipulation as to
what had transpired to resolve any issues of admissibility.
(Id. at 245-46). There was also an issue surrounding the
potential disqualification of Wiese's attorneys if there was a
dispute about what was said. (Id. at 246). Mr. Vinegrad
testified that he never said anything to CN&S as to whether he considered the
meetings with Tacopina's lawyers to be improper. (Id. at 247).
When asked if the notes taken by CN&S posed a Brady*fn54
problem with respect to the criminal prosecution of Officer
Wiese, Mr. Vinegrad responded "no," explaining that information
given to CN&S by Wiese's attorneys was clearly information within
Wiese's attorneys' knowledge. (Id. at 276). Moreover, the
account given to CN&S was "in material respects consistent with
accounts" given by Wiese to federal investigators during an
earlier proffer session. (Id. at 277).
P. The Investigation of the "Giuliani Time" Statement
Another issue that plagued the government's case was the
"Giuliani time" statement, first uttered by Figeroux at the press
conference on August 13, 1997 and then repeated by Louima during
his first press conference on the following day. (See
discussion supra at 11-12). With respect to the "Giuliani time"
statement, Ms. Palmer expressed her view that when she first
heard about the statement, she thought "it was an incendiary
statement in terms of not just the prosecution, frankly, but
. . . for the City of New York," and therefore, it was important
to determine the genesis of the statement." (P. Tr. at
24).*fn55 During the first interview with Louima in the
hospital, Ms. Palmer "became convinced that the Giuliani [time]
statement had never been made." (Id. at 26).
Later, toward the end of November or early December of 1997,
during a walk through of the events of that evening, Louima told
the government, "without any prompting," that the Giuliani time statement was untrue. (Id. at 105-107; S. Tr. I at 73). Palmer
then called Scheck and told him that Louima had told the federal
prosecutors that the "Giuliani time" statement had never been
made and that the government was suspending the grand jury
presentation until this issue could be straightened out. (S. Tr.
I at 73).
Vinegrad participated in the investigation into the Giuliani
time statement. (V. Tr. at 238-40). Since Louima made the
statement not only to federal agents and prosecutors, but under
oath in one of the state grand jury sessions, it created
"significant concern[s]" about Louima's credibility at trial.
(Id. at 240). Ms. Palmer asked Scheck to investigate this and
get to the bottom of how the "Giuliani time" statement first
arose. (S. Tr. I at 74). According to Scheck, Palmer wanted
Scheck "alone to do this" and "[s]he wanted me to do it
carefully, obviously without any leaks." (Id.) Palmer indicated
that she did not ask T&F to investigate the Giuliani time
statement because she "had a concern as to whether Mr. Figeroux
had had any involvement in the statement initially being made,"
and she did not feel that T&F had been "helpful in building the
kind of trust working with [the government]." (P. Tr. at 42).
T&F assert that because Figeroux was under suspicion for having
originated the Giuliani time remark, Scheck "conduct[ed] his
investigation in an accusatory manner . . . and encouraged Louima
to blame" Figeroux even after the investigation confirmed that
the statement originated from others. (T&F Post Hearing Br. at
31). T&F further contend that CN&S failed to take steps to
prevent Louima's family members from making statements designed
to shift the blame back onto Figeroux even after the truth was
known and T&F had left the case. (Id. at 32 (citing S. Tr. I at
These accusations are belied by the credible evidence which
demonstrates that Scheck conducted the investigation in a
deliberate and non-biased fashion. Indeed, upon being asked by
Palmer to investigate the genesis of the Giuliani time statements,
Scheck first performed a Lexis-Nexis search of every article
written about the Louima case in an effort to determine who
first said anything regarding the "Giuliani time" statement. (S.
Tr. I at 76). Articles in the Daily News and Newsday first
attributed the statement to Brian Figeroux at the August 13, 1997
press conference in front of Coney Island Hospital. (Id.)
Scheck also spoke to Louima, who told Scheck that while Louima
was in the hospital, either late on August 13 or early in the
morning on August 14, he spoke to a man, later determined to be
Jean-Claude Laurent, a relative of Magalie Laurent, one of the
nurses taking care of Louima. (Id. at 74-75). Scheck learned
that Laurent had spoken to Louima in Creole and told Louima that
he had to make a statement that his attacker had said, "`It's not
Dinkins time. It's Giuliani time,' because this would be
important to bring attention to [Louima's] case." (Id. at 75).
Louima then went out on August 14 at the press conference, where
he was "in terrible pain, . . . [and] on drugs," and he made the
statement. (Id.) Louima did not really know Laurent very well,
but he told Scheck that Louima's brother Jonas might have more
Scheck, at Louima's suggestion, then met with Louima's brother
Jonas at Junior's restaurant in Brooklyn. (Id. at 76). Jonas
told Scheck that Jean-Claude Laurent and his brother, Andre
Laurent, or "Tefrey" as they called him, were auxiliary policemen
and had given advice to Louima's family on how to file a
complaint with the Civilian Complaint Review Board. (Id. at
76-77). Jonas mentioned that he had attended a meeting with
Figeroux at the Laurents' home in Brooklyn where they had
discussed strategy. (Id. at 77). Finally, Jonas admitted that,
prior to the August 13 press conference, Tefrey had given Jonas a note to give to Figeroux that contained the
statement, "`It's not Dinkins time. It's Giuliani time,'" because
Tefrey felt that this would be important to call attention to the
case. (Id.) Jonas then gave the note to Figeroux who made the
announcement at the press conference. (Id.)
Scheck then met with the Laurents and they confirmed Jonas'
description of their early role in the genesis of this statement.
(Id. at 78). Although they defended the "Giuliani time"
statement, neither Jean-Claude Laurent nor Andre Laurent was
willing to go so far as to admit that he had suggested that
statement to Louima. (Id. at 78-79). After a second meeting
with the Laurents, also attended by Cochran, Scheck tried to
arrange a meeting with Figeroux. (Id. at 80). Scheck testified
that maybe two or three days passed between the time he learned
that Figeroux was the first person to publicly make the "Giuliani
time" statement and the time that he confronted Figeroux. (Id.
at 152-53). When Scheck questioned Figeroux about the statement,
Figeroux claimed to know nothing about Louima's conversation with
Jean Claude Laurent on the morning of August 14, 1997, but
Figeroux did tell Scheck that he had seen Laurent at the hospital
on August 14. (Id. at 81). At the meeting, Scheck showed
Figeroux the newspaper articles, and explained that Figeroux was
the first one to say anything about the "Giuliani time"
statement. (Id. at 80).
According to Figeroux's testimony during the fee hearings,
Jonas Louima, Abner's brother, handed Figeroux a note during the
press conference which Figeroux opened and read to the press. (F.
Tr. I at 165).*fn57 Although Figeroux had never heard Louima
mention this remark in any of his prior conversations, Figeroux decided it must be true and revealed it
to the press without confirming it with Louima. (F. Tr. I at
172-3; R.S. Tr. I at 19). Figeroux conceded that the note had
been thrown away and that Figeroux had "assum[ed]" that Jonas had
written it. (F. Tr. I at 169-70). Figeroux also conceded that he
had spoken to Louima on three or more occasions prior to the
press conference, and that even though Louima had never said
anything about the Giuliani time statement during those
conversations, Figeroux did not question Jonas about the note
because Figeroux "didn't have the opportunity at that time to
speak to anyone" and because he believed it to be true. (Id. at
It is unclear whether Louima ever confirmed the Giuliani time
statement to Figeroux. Figeroux's own version of events varied.
At one point during his testimony, Figeroux stated that he could
not remember if the Giuliani time statement was discussed with
Louima before the press conference. (Id. at 184-85). However,
he changed his testimony later to say that he could not "remember
exactly what was said but I know it was discussed, and he did
confirm that, yes, that statement is true." (Id. at 187).
Figeroux then testified that Louima had told him in the
presence of Thomas and Roper-Simpson that the remark was true.
(Id.) In a subsequent interview with the FBI, he indicated that
he was "almost 100% certain" that Louima had confirmed the
statement in Thomas' and Roper-Simpson's presence on the day
before the August 14th press conference, although he was unsure
whether Thomas and Roper-Simpson had heard the conversation. (Ex.
44 at 1-2).
This testimony by Figeroux was contradicted by the testimony of
both Louima and Roper-Simpson. Louima testified that he did not
recall discussing the Giuliani time statement with Figeroux prior
to the August 14th press conference (L. Tr. at 152), and
Roper-Simpson's testimony was that Figeroux was not even in the
hospital room with Louima prior to Louima's press conference.
(R.S. Tr. IV at 6-9). According to Roper-Simpson, she and Thomas were the
only ones in the room with Louima and she has no recollection of
Figeroux ever discussing the Giuliani time statement with
When asked, Figeroux denied considering the political
ramifications of the Giuliani time statement, but acknowledged
that he knew it would generate a lot of publicity. (F. Tr. I at
167-68). He testified that "[a]t that time we had the opportunity
of having the Reverend Al Sharpton and various political leaders
there talking about our client being victimized," and therefore
Figeroux thought it was an opportune moment to disclose the
statement to the press. (Id. at 165). Figeroux also testified
that he understood that ultimately Louima's credibility would be
evaluated against the credibility of the police officers, and
that therefore it was important to maintain consistency in
Louima's statements. (Id. at 163-64). Figeroux stated that,
"[i]n a million years[,] I would never believe that that
statement was false. If I [had] thought it was false, I would not
have proffered it." (Id. at 166). Figeroux thought that since
Jonas was there on the night of the incident and had had
discussions with Abner, the statement must be truthful. (Id.)
Scheck testified that during his investigation, he also tried
to speak to Thomas about the issue but Thomas would not speak to
Scheck until sometime during the week between Christmas and New
Years, when Scheck finally met with Thomas at Thomas' offices in
Brooklyn. (S. Tr. I at 84). Scheck testified that the statement
had an "enormous detrimental effect on both the civil and
criminal case, because it was considered by many a blood liable
of a kind." (Id. at 156). "[I]t undermined obviously the
credibility that Louima would have at the criminal trial. And I
think it undermined the force of our civil case." (Id.) Scheck subsequently reported to Cathy Palmer
and Ken Thompson what he had learned about the Laurents and then
the government's debriefing sessions began again with Louima.
(Id. at 89).
Q. Statements to the Press