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LOUIMA v. CITY OF NEW YORK

July 21, 2004.

ABNER LOUIMA, et al., Plaintiffs,
v.
CITY OF NEW YORK, et al., Defendants.



The opinion of the court was delivered by: CHERYL POLLAK, Magistrate Judge

REPORT AND RECOMMENDATION

INTRODUCTION

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 2).*fn5

  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.

  FACTUAL FINDINGS

  A. The Assault

  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 McAlary

  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. at 62-63).*fn16

  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 at 71).

  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 "inexperience." (Id.)

  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 216-17).

  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 223-24).

  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

  G. Notices of Claim

  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

  H. The March and Rally

  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).

  I. Retention of CN&S

  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 signatories:
assumes joint responsibility (as that term is applied in Disciplinary Rule 2-107 [A] [2]), 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." (Ex. 5).

  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. at 13-14).

  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." (Id.)

  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 condition. (Id.)

  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 79-80).

  L. The "Laptop Incident"

  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. at 17).

  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. 60).

  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 problems." (Id.)

  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. at 43-44).

  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. at 46-47).

  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 Louima's behalf.

  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 32-33).

  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 37).

  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. at 41-42).*fn51

   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 occasions. (Id.)

   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 76-81)).

   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 information. (Id.)*fn56

   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 172-73, 176).

   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 Louima.*fn58 (Id.)

   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

   (1) Louima's Initial ...


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