United States District Court, E.D. New York
July 21, 2004.
ABNER LOUIMA, et al., Plaintiffs,
CITY OF NEW YORK, et al., Defendants.
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.
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
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
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
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
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.
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
(1) Louima's Initial Instructions
Although Louima acknowledged the benefits of publicity in
bringing his case to the attention of the public (L. Tr. at
130),*fn59 early on, Louima told all the lawyers, including
T&F, that he did not want them making statements to the press
without his approval. (Id. at 26; C. Tr. I at 197). Louima
testified that he had several discussions with the lawyers about
press statements and team work. (L. Tr. at 27-28). According to
Louima, he told the lawyers at the first meeting with CN&S in
late August 1997 that Cochran would be "the one who will deal
with the press." (Id. at 26). Cochran testified that, at this
meeting, Louima instructed all of the attorneys to clear all
statements to the press with Louima beforehand, and designated
Cochran as lead counsel.*fn60 (C. Tr. I at 197-98; see
also R. Tr. at 45).*fn61 This comports with Cochran's testimony that the press instruction
was discussed among counsel during the meeting at which the
"laptop incident" occurred. (C. Tr. I at 206-07).
Neufeld testified that during the six or seven months prior to
the withdrawal of T&F, Louima repeatedly reminded the lawyers he
did not want them speaking to the press. (N. Tr. II at 169-70).
According to Neufeld, by September 1997, the press was writing
stories critical of Louima's family and that "early on," Louima
advised the lawyers not to speak to the press unless they cleared
it with Louima first. (Id. at 170-72). Neufeld explained that
after reading certain articles, Louima complained about T&F's
statements to the press. (Id. at 174). Neufeld denied that he
ever "prompted" Louima to complain about the stories in the press
(id. at 175); Neufeld maintained that Louima "expressed that
position to us." (Id. at 173).
Louima testified that while there were times when Rubenstein,
Neufeld, Scheck and Cochran would ask for approval from Louima to
speak to the press,*fn62 Figeroux and Thomas never asked for
Louima's approval. (L. Tr. at 27). Problems developed because
Figeroux and Thomas were not working as a team with the others;
according to Louima, they were "bad mouthing" Cochran, Neufeld
and Scheck, "for a long time," even after they resigned. (Id.
at 28, 30). Among other things, Louima testified that they used
"some ethnic word like a negative word that you use against a
Jewish person." (Id. at 29). Louima told Figeroux and Thomas
"not to do it." (Id.) Ms. Palmer was also concerned about stories appearing in The
Village Voice in the late fall of 1997 in which Thomas and
Figeroux were being referenced as the sources of the stories. (P.
Tr. at 29). She testified: "To me, this case was problematic
enough, given the spotlight on [the case]. . . . Having it play
out in the press . . . was not helpful." (Id.) Mr. Vinegrad
also indicated that he preferred there to be as little discussion
as possible about the case in the press prior to and during the
criminal trials. (V. Tr. at 242). Vinegrad stated that Neufeld
and Scheck would usually contact him before responding to press
inquiries. (Id. at 242-43).
(2) Specific Examples of Alleged T&F Leaks
During the fee hearing, CN&S introduced a number of press
clippings that they argued demonstrated T&F's continuous
unauthorized leaks to the media regarding Louima's case. In each
of these articles, either Thomas or Figeroux is quoted as making
comments about the case that were neither designed to publicize
the tragedy nor promote their client's interests. Rather, the
comments appear to be critical of the client's family, the other
lawyers, or designed to promote their own interests.
For example, an article appeared in the September 2, 1997
edition of The Village Voice that recounted rifts between
factions of the Louima family and the various attorneys. (Ex.
29). The article stated that T&F were "engaged in a struggle with
members of the more conservative side" of the family. (Id.) The
article relied on a "source close to Louima's lawyers" (id.),
and stated that the wealthier branch of Louima's family had
"reportedly turned the case over to a white lawyer." (Id.) The
article went on to state that T&F were "deliberate[ly]" excluded
from an August 12, 1997 meeting between Mayor Giuliani and the
Louima family. (Id.) The article also recounted a contentious
first meeting between T&F and Rubenstein, quoting an "insider" as stating that
Thomas called Rubenstein an "`obsequious piece of s____'" and a
On November 9, 1997, an article appeared in The New York
Times questioning the need for CN&S' involvement in the Louima
case. The article states: "One member of the original Louima team
suggested that Haitian immigrant leaders had pushed for Mr.
Cochran because they feared that some of the original lawyers
were not up to the job." (Ex. 30). The article quotes Thomas as
follows: "`There was a feeling that our lack of experience was
such that we would not be able to handle the case to the
conclusion. . . . We feel we're capable.'" (Id.). The article
cited Thomas as stating that "he thought the decision to bring in
Mr. Cochran reflected a lack of confidence in him and his two
associates, not by the Louima family but by people in the
`Haitian and African-American and other communities.'" (N. Tr. I
at 100 (quoting Ex. 30)). Neufeld testified that when Louima saw
the article, he "expressed his displeasure with Mr. Thomas's and
Mr. Figeroux's comments to the press, saying that they created
disunity as opposed to helping him with his lawsuit." (N. Tr. I
at 101). When asked about the statements in this article,
Figeroux testified that he had spoken to Joseph Fried from The
New York Times, but he could not recall whether he made any of
the statements cited in the November 9, 1997 New York Times
article. (F. Tr. I at 222-24).
In the December 1997 issue of Vanity Fair, there appears a
lengthy article by Marie Brenner, entitled "N.Y.P.D. Blue, Inside
the Police Brutality Case that Shocked the Nation." (Ex. 27). In
this article, Figeroux is quoted as saying:
"There are two sides of the family in this case,"
Figeroux told me. "The poor side is for political
change that's Abner and Micheline. But they have no
real power. And then there is the rich side: Pastor
Nicolas and Samuel."
(Id. at 330). Later, in the same article, Figeroux is quoted as
saying: "`It is all about money where this family is
concerned. . . . It's a diseased family as far as his [Louima's]
family goes.'" (Id. at 334). According to the article, when
Figeroux originally arrived at the hospital to meet Louima for
the first time, "there was already `a bloodsucker' from a
personal injury law firm. . . . `They weren't even concerned with
the guy's safety,' Figeroux stated." (Ex. 27 at 330; F. Tr. I at
195). When asked during the fee proceeding who the "bloodsucker"
was that he was referring to, Figeroux did not directly answer
the question. Instead, he responded: "Mr. Rubenstein had an
agreement with Ms. Brenner. Apparently, Mr. Rubenstein wanted to
write a book." (F. Tr. I at 196).*fn63 Ultimately, when
questioned further, Figeroux admitted that the person he was
referring to was an attorney from Rubenstein's firm. (Id. at
200). He did not deny making the statement; he simply testified
that he could not recall if he made that statement to Ms.
Brenner, but he knew that both he and Thomas had uttered "that
statement `bloodsucker.'" (Id. at 196-97).
Figeroux conceded that he did not have an "oral or written
agreement from Mr. Louima to speak to anyone in the media," in
connection with this article. (Id. at 197). Instead, he claimed
that at that time, December 1997, he was just trying to get
Louima's story out. (Id.) When asked if he told the author of
the article that "Abner has no power," he testified that he could
not recall. (Id. at 206). Nor could he recall whether he
discussed Louima's uncle's influence over Louima with the
reporter. (Id.) In essence, when questioned about specific
statements attributed to him by the author of the article,
Figeroux did not deny making any of those statements,
consistently responding, "I don't recall." (Id. at 207-210).
According to Neufeld, he had discussions with Louima about a
number of these articles, indicating that Louima was "distressed"
that T&F were discussing "the inner-workings of his legal team"
with the press. (N. Tr. I at 103). At some point, Louima stopped
reading the articles in part because the prosecutors had
instructed him not to read them, and because "he really had just
run tired of the whole thing in the press." (Id.)
(3) Louima's Retraction of "Giuliani Time"
In the January 20, 1998, edition of The Village Voice, Peter
Noel printed an article revealing for the first time that Louima,
"[a]ccording to sources," had not told the truth and was
retracting his statement about "Giuliani time." (Ex. 53). The
article quotes "[a] federal investigator" as its source. (Id.)
The Village Voice article, although dated January 20, 1998, hit
the newsstands sometime around January 12 through 14, 1998. (S.
Tr. I at 90).
On January 15, 1998, The New York Times also printed an
article revealing that Louima had retracted the "Giuliani time"
statement. (Ex. 36). Marvyn Kornberg, Esq., lawyer for Justin
Volpe, was quoted in the article as noting that "`[i]f he
[Louima] would lie about that, what would he say to collect $450
million, which is what he is suing for?'" (Id.)*fn64
According to Scheck, he, Neufeld, Cochran and Rubenstein, were
"very upset and angry" that the story broke this way, as was
Louima. (S. Tr. I at 90). Scheck also testified that Cathy Palmer
was "livid, extremely angry." (Id.) She was extremely angry because
The Village Voice article indicated that Louima had only
revealed the truth after extensive interrogation, which according
to Palmer was not true. (P. Tr. at 29-30). Instead, Louima had
voluntarily come to the government and revealed this information.
(Id. at 29-30, 106-07). Palmer noted that at the time the
article was released, the case had not been indicted and the
government was concerned that it would seriously damage Louima's
credibility. (Id. at 30).
Both CN&S and the government were concerned that either Thomas
or Figeroux had been the source of the The Village Voice
article because CN&S believed that either Thomas or Figeroux or
both had a relationship with Noel. (S. Tr. I at 91-92; P. Tr. at
30, 37). A number of prior articles written by Noel had quoted
Thomas and Figeroux. (Id.) Indeed, Ms. Thomas testified that
her husband knew Noel (Thomas Tr. at 77), and that he spoke to
Noel about the Louima matter. (Id. at 78). Figeroux also
admitted knowing Peter Noel for at least six years and had spoken
with him ten to twenty times. (F. Tr. I at 219). He claimed,
however, that he does not read The Village Voice. (Id. at
Palmer testified that she believed that either Thomas or
Figeroux was responsible for leaking the retraction of the
Giuliani time statement and that having the story leaked
prevented the government from "mak[ing] good use of the fact that
[Louima] had [voluntarily] come forward" and recanted his
statement. (P. Tr. at 30, 37). Indeed, when asked about the
Tacopina meetings, Palmer made it very clear that while she was
angry about the Tacopina meetings, The Village Voice article in
January "was potentially devastating with respect to the impact
it had on Abner's credibility." (Id. at 65).
Another article by Mr. Noel was subsequently printed in The
Village Voice, which although dated January 27, 1998, was on the
newstands around January 21, 1998. (N. Tr. I at 103-04; Ex. 34). This article described in part the investigation conducted by
Scheck into the "Giuliani time" statement. (Id. at 94; Ex. 34).
Although this article quoted Thomas and Figeroux as declining
comment (Ex. 34), Louima was again upset and reprimanded Thomas
and Figeroux. (L. Tr. at 36-40). T&F contend that not only is
there nothing in the article to suggest that they were the
source, but the article specifically refers to a "law enforcement
insider." (T&F's Post-Hearing Br. at 37).
R. The Withdrawal of T&F
Louima testified that during the summer, fall and winter of
1997, Louima read certain things about the case in the press that
upset him. (L. Tr. at 31). Specifically, there were articles
quoting Figeroux at times when Louima had not authorized the
release of that information. (Id. at 31-32).*fn65 Among
others referred to by Louima was the January 20, 1998 article in
The Village Voice, which quoted Figeroux and discussed the
"Giuliani-time" remark. (Id. at 32, Ex. 53). According to
Scheck, after that article came out, Louima was "angry at Brian
and Carl because he thought they might be the source of this
article." (S. Tr. I at 93). Neufeld also testified that "Louima
said that he believed that Carl Thomas and Brian Figeroux were
the source of the leaks, that he was well aware of the long
relationship they had with Peter Noel." (N. Tr. I at 94).
Moreover, Louima was concerned that the article reported that
Louima had first uttered the Giuliani time statement to his
brother Jonas information attributed in the article to Brian
Figeroux. (Id. at 94-95). Louima was concerned because this
"was a statement that had never been in the press any place, that
no one had ever uttered publicly." (Id. at 94).
When Louima saw the article, he went "straight to Figeroux's
office" and asked him why Figeroux's name was mentioned in the
article. (L. Tr. at 33). Figeroux responded that he didn't know
anything about it, to which Louima said, "`[w]hy don't you pick
up the phone and call the newspaper and tell them, ask them why
they put your name if you are not the source of the article.'"
(Id. at 33). According to Louima, Figeroux denied being the
source but told Louima that he did not want to make the call.
(Id. at 34). Louima testified that he was "so upset I slammed
the newspaper on [Figeroux's] desk, and I walked away." (Id.)
Louima then called a meeting with all the lawyers that
afternoon at Rubenstein's office. (Id.; R. Tr. at 51). Most of
the lawyers were there except Cochran. (L. Tr. at 34-35). At the
meeting, Louima was angry and he instructed the attorneys that it
was not acceptable for them to make comments to the media without
Louima's approval. (Id. at 35; S. Tr. I at 90). According to
Rubenstein, Louima specifically said to Figeroux, "`your name is
in this article. I want the leaks stopped.'" (R. Tr. at 52).
Although Figeroux denied leaking anything, Louima stated that if
the problem continued, he would "fire all of them." (Id.; L.
Tr. at 35). The lawyers all agreed that it would not happen
again, and that they would work as a team and follow Louima's
instructions. (L. Tr. at 36).
During the course of the proceedings, the Estate of Mr. Thomas
called the Reverand Al Sharpton as a witness. Reverand Sharpton
testified that prior to the time of Martin Luther King's
birthday, on or about January 15, 1998, Sharpton had a
conversation with Thomas in which Thomas indicated that he wanted
to quit the Louima case because Abner Louima was angry about the
press leaks. (Sharpton Tr. at 172-73). Sharpton persuaded Thomas
not to quit because he felt that this was "not the way to handle it," and "it would not be good for what we
are trying to do." (Id. at 172). When asked on redirect
examination whether what "Mr. Thomas was upset about was his view
that the lawyers of [CN&S] had been turning Abner Louima against
him," Mr. Sharpton responded, "No. The conversation I had with
him was . . . about his feud with Abner." (Id. at 174).
Sharpton categorically denied that Thomas had ever "expressed to
[Sharpton] his view that he was being marginalized by [the other]
attorneys," adding that "I don't think anybody could marginalize
Carl Thomas." (Id. at 175).
Approximately one week later, when the second article appeared
in The Village Voice, Louima called a second meeting of the
attorneys. (L. Tr. at 36; Ex. 34). This time the meeting took
place in the afternoon of January 23, 1998 at CN&S's offices at
99 Hudson Street in Manhattan. (L. Tr. at 36-37; R. Tr. at
52).*fn66 Previously, a decision had been made that Jonas
Louima would speak to some FBI agents about what he had told
Scheck about the Giuliani time statement and that meeting was
scheduled to occur at 99 Hudson Street. (S. Tr. I at 96-97).
Louima was in Cochran's office and the Laurents were in the
conference room. (Id. at 97-98). An attempt was made to
persuade the Laurents to confirm the origins of the Giuliani time
statement to the FBI, but the Laurents would not commit to
confirming what Jonas Louima had said about the origin of the
Giuliani time statement. (Id. at 97). Eventually, they left.
(Id. at 98).
At some point, however, Thomas, Figeroux, and possibly
Roper-Simpson, arrived and thereafter, Louima held a meeting with
them and with the CN&S attorneys. (Id.; R.S. Tr. I at 126-27;
N. Tr. I at 106-07). All of the attorneys were there except for
Rubenstein, who arrived later. (L. Tr. at 37; R. Tr. at 53). Louima told the lawyers that things were
"getting out of control," that "[w]hat they [were] doing is
hurting the case instead of helping the case," and that the media
was printing stories about a fight among the lawyers. (L. Tr. at
38-39). According to Scheck, Louima complained that he did not
think that Thomas and Figeroux were cooperating with CN&S and he
urged them to cooperate in the Giuliani time investigation. (S.
Tr. I at 99). Thomas objected, stating that he thought Scheck's
investigation was an effort "to set up or harm" Figeroux, and
Figeroux joined in what Scheck described as a "heated" protest.
(Id. at 100). Scheck tried to reassure them that if the
Laurents, Louima, Thomas and Figeroux were consistent in their
stories, Figeroux would not be a target for subornation of
perjury charges even though Scheck believed that what Figeroux
had done, in making the statement to the press without first
confirming it with Louima, "was incredibly it was a ridiculous
thing to do from the point of view of a lawyer." (Id.)
According to Scheck, Louima was particularly angry at Figeroux
and Thomas about the press leaks and he said that nobody should
speak to the press until he had approved the statement. (S. Tr. I
at 99). Louima testified that he was very upset about the January
27, 1998 Village Voice article because this article quoted both
Thomas and Figeroux after Louima had explicitly said that he
would fire them if they did not follow his instructions not to
speak to the press. (L. Tr. at 37). According to Louima, Thomas
and Figeroux indicated that they were not willing to follow his
instructions. (Id. at 39).
Thereafter, Louima met separately with Figeroux, Thomas and
Roper-Simpson in Cochran's office. (L. Tr. at 39; S. Tr. I at
101-02). Scheck went to the conference room, and Neufeld went
back to his office. (S. Tr. I at 101). In private, Louima told
T&F and Roper-Simpson that he "was very angry at them, and I [told] them I respect them because they were
the first one[s] who [got] involved with the case. But they are
hurting the case. [And] I [told] them prior that if that happened
again, I am going to fire them. So that is their last chance.
That if anything happens again, I am not even going to call them
in. I am just going to fire them." (L. Tr. at 39-40).*fn67
According to Louima, Thomas responded by stating that "they
want to quit." (Id. at 40). Neither Figeroux or Roper-Simpson
said anything to disagree with Thomas. (Id. at 41). Louima then
left the room to tell the other lawyers what had been said.
(Id.) Cochran said that the resignation would be a publicity
problem but they would have to deal with it. (Id. at 41-42).
Louima then went back to Cochran's office where he told Figeroux,
Thomas and Roper-Simpson that their decision was "fine with me,"
at which point they just "walked out on their own." (Id. at
Scheck testified that after speaking with Louima, "they [Thomas
and Figeroux] came out and really were stomping out of the office
and I heard Mr. Thomas say `we resign. We are resigning.'" (S.
Tr. I at 102). Scheck then went back into Cochran's office and
Louima told Scheck, "they quit and he [Louima] was as shocked as
I was." (Id. at 102). According to Scheck, after he heard
Thomas state that they were quitting or resigning, he did not
hear or see Figeroux do anything to express disagreement with what Thomas had said. (Id. at 103).*fn68 Although
Neufeld testified that he was not privy to all of the discussions
because he was working in his office at the time, he specifically
recalled that prior to leaving the offices of CN&S, Thomas stated
words to the effect of "`I'm quitting the case.'" (N. Tr. I at
106). Neufeld heard no objection from either Figeroux or
Roper-Simpson. (Id. at 107).
Rubenstein testified that he arrived at 99 Hudson Street and
had just walked into the office when Thomas and Figeroux came
walking towards him. (R. Tr. at 53). Rubenstein could not recall
if Roper-Simpson was there. (Id.) One of them said to
Rubenstein, "we quit." (Id.) When Rubenstein asked why, one of
them, either Thomas or Figeroux, simply said, "we quit" and kept
on walking. (Id.)
T&F concede that there was conflicting testimony as to whether
either Thomas, Figeroux, or Roper-Simpson stated that they "quit"
or "resigned" (compare R.S. Tr. I at 128, L. Tr. at 162-63, C.
Tr. I at 230, S. Tr. I at 102-03, R. Tr. at 53, N. Tr. II at
261), but they contend that this is irrelevant because their
"termination was not voluntary." (T&F Post Trial Br. at 38).
S. The Resignation Letter
According to Scheck, after Figeroux, Thomas and Roper-Simpson
left the office, there were discussions with Louima about what
should happen next. (S. Tr. I at 104; N. Tr. I at 107). CN&S were concerned about what might be said to the press by Thomas
and Figeroux and they immediately drafted a letter to make sure
that T&F would not reveal anything that they had learned of a
confidential or privileged nature while representing Louima. (S.
Tr. I at 104-05; N. Tr. I at 107-08). Scheck noted that "[w]e
were very concerned that they might say something about . . .
Louima's behavior, demeanor [or] conduct." (S. Tr. I at 105).
Thus, after T&F left, Neufeld, Scheck and Louima sat in Neufeld's
office and drafted a letter (Ex. 8),*fn69 instructing Thomas
and Figeroux not to make any comment or talk to anyone about the
case and noting they had resigned. (L. Tr. at 43; N. Tr. I at
108). Louima was physically present when the letter was drafted
as was Rubenstein, who testified that he saw the letter as it was
being prepared. (R. Tr. at 53). Louima approved the letter, told
CN&S that he thought it was a good idea, signed it, and the
letter was delivered by messenger from Rubenstein's office. (L.
Tr. at 43-44; Ex. 8; N. Tr. I at 108; R.S. Tr. I at
The January 23, 1998 letter, which was addressed to T&F,
stated: "I accept your resignation as my attorneys as tendered
orally this afternoon." (Ex. 8). The letter seeks "an accounting
. . . for the time and expenses" incurred by T&F and by "your
colleague Casilda Roper-Simpson." (Id.)
The letter then explicitly instructed the attorneys not to
disclose confidential information or secrets: "I do not intend to
comment on the reasons surrounding your resignation," noting that
"it is imperative that everything you have learned in the course
of representing me, including this letter, be kept confidential."
(Ex. 8). The letter further reminded T&F that their "professional
and fiduciary duties to [Louima] survive the end of [their] representation." (Id.)
The letter then explicitly states:
I am requiring that all information you have gained
in the course of our professional relationship be
held inviolate unless and until you receive express
written permission for me. Any written authorization
shall be limited to the specific communication
described in the authorization and shall not be
construed as a broad or blanket authorization or
Moreover, it is essential that you recognize that the
types of information covered by this requirement go
well beyond privileged communications. For instance,
it includes, but is not limited to, observations
about my behavior, demeanor, and conduct, as well as
information gained through discussions with other
attorneys, witnesses, my friends, and family. I too
appreciate that you will adhere to these rules.
According to T&F, after the January 23rd meeting, CN&S
prevented T&F from speaking with Louima. (T&F Post Trial Br. at
38). Thomas went to Louima's house after the meeting, but Louima
was not home. (L. Tr. at 141-42). Thereafter, a second letter was
sent to T&F, signed by Louima, instructing T&F not to communicate
directly with Louima but only through CN&S. (Ex. 9). This second
letter, dated January 29, 1998, advised T&F to speak to CN&S or
Rubenstein if they wished to communicate with Louima; "Effective
today, I advise you not to make any attempt to communicate with
me directly." (Id.)
Figeroux acknowledged receiving Exhibit 8 and understood that
Louima was requesting that T&F not speak to the press. (F. Tr. I
at 229-30; F. Tr. II at 2-5). Figeroux also acknowledged that
from January 23, 1998 until the date of the hearing, the only
authorization received by T&F to speak about the case was the authorization given by Louima to allow
Figeroux to speak to the FBI. (F. Tr. II at 4).*fn71
Neither Figeroux nor Thomas ever indicated orally or in writing
that they disagreed with the January 23rd letter. (S. Tr. I at
112; N. Tr. I at 109). Although the first sentence in Louima's
letter says, "I accept your resignation as my attorneys as
tendered orally this afternoon," [T&F] never disagreed with this
statement nor did they inform CN&S that they thought they were
entitled to make public statements. (S. Tr. I at 112) Although
the January 23rd letter asked for an accounting from T&F for
purposes of payment, T&F decided to assert their right to share
in the contingency fee (F. Tr. III at 23-24), and they further
believed that there was nothing to be gained by responding to the
letter. (Id. at 22-23).
Thompson testified that he learned from Neufeld, and then from
either Thomas or Figeroux, that Thomas and Figeroux were no
longer representing Louima. (T. Tr. at 253-54). Neufeld told
Thompson that they had resigned. (Id. at 254). Thompson said
that he did not question Neufeld about it because it had been
clear that there were tensions among the lawyers; "[s]o it didn't
surprise me that Brian and Carl got off the case." (Id. at
T. Post-Termination Press
After the resignation of T&F, there were "many" articles in the
media regarding the resignation and Figeroux and Thomas continued
to speak to the press about the case. (L. Tr. at 44).
On January 28, 1998, The New York Times ran an article by
Gary Pierre-Pierre, quoting Figeroux as saying that he and "his law partners . . . Thomas and
. . . Roper-Simpson" "resigned" from representing Louima, but
"declin[ing] to say why." (Ex. 13). The article further indicates
that Neufeld confirmed that T&F had "left the case" but he also
declined to comment further. (Id.) The article then quotes
"someone involved in the case"*fn72 as reporting that
"Louima met with all of his lawyers on Friday and offered the
three a choice of resigning or being dismissed." (Id.) This
same anonymous source is quoted as stating that "[t]he other
lawyers had lost confidence in them. . . . [t]he whole `Giuliani
time' thing was suspect." (Id.). The article, without
attribution, relates a "heated discussion" between Thomas and
Neufeld, approximately one month earlier, in which the "two
lawyers questioned each other's legal skills and Mr. Thomas even
cursed Mr. Neufeld." (Id.)
On that same day, the Daily News also published an article
about the departure of T&F from the team. This article quotes
Thomas as saying that "Louima's reversal on the `Giuliani time'
quote . . . `exacerbated differences' among the lawyers." (Ex.
14). Citing "`professional and ethical differences,'" Thomas is
quoted as saying: "`We think their leadership is in the wrong
direction and we couldn't support it.'" (Id.) These same quoted
remarks also appear in the January 28, 1998 issue of the New
York Law Journal. (Ex. 15).
The following day, January 29, 1998, The New York Times
published an article by Garry Pierre-Pierre entitled, "Former
Louima Lawyer Says New Team Ignores the Big Issue." (Ex. 16).
Thomas again is named as the source of certain statements
critical of the CN&S legal team, stating that T&F had been "pushed aside by Johnnie L. Cochran Jr." and
accusing CN&S of being interested only in the money and showing
little concern for the broader issue of police brutality: "`We've
always felt that we were part of a movement to stop police
brutality in New York,' said the lawyer, Carl W. Thomas. . . .
`But it was just being dealt with as a case about money, and
that's not enough.'" (Id.) The article quotes "a person
involved in the case" as stating that Louima gave Thomas,
Figeroux and Roper-Simpson "the choice of resigning or being
A Daily News article of January 29, 1998, written by Lawrence
Goodman, also contained statements attributed to Thomas. The
article states that Thomas "resigned because the O.J. Simpson
legal dream team . . . didn't care about battling police
brutality." (Ex. 17). Neufeld, in response, is quoted as saying
that the T&F lawyers were "`discharged.'" (Id.) The article
further quotes Thomas as follows:
"These guys had no organic connection to civil
rights." . . . "They were unconcerned about what was
taking place and didn't understand what it meant."
[Thomas] accused Cochran partners Neufeld and Barry
Scheck of having a "white liberal background where
they had to control everything."
(Id.) Thomas also is quoted as stating that Cochran "`has a
significant amount of baggage' stemming from the Simpson case
including the `perception that he was, in some ways, dishonest.'"
(Id.) The piece quotes Thomas as stating that, at the January
23rd meeting, he had said "`I wanted the leadership,' and
demanded [that] `Cochran no longer act as the lead attorney in
the case.'" (Id.) Neufeld is quoted as stating that Thomas was
"`discharged' and did not quit." (Id.)
Neufeld testified that he was contacted by Goodman prior to the
publication of the article and was told that Thomas had given the
writer four reasons for T&F's resignation, which Neufeld
testified "were comments which disparaged [CN&S] . . . [and] the client."
(N. Tr. I at 113). Neufeld explained that as a result, he was
"very upset" and told Goodman "that based on this conduct alone
they certainly could be discharged." (Id.) He denied stating
that they had been fired, noting that he had already told The
New York Times and an employee of the Corporation Counsel's
Office that T&F had resigned. (Id. at 113-14; N. Tr. II at
The press leaks continued into February 1998. A February 1998
article in Haiti Progres reported an interview with Thomas in
which he is quoted extensively about the friction between the
CN&S and T&F lawyers. (Ex. 31). Again, much of Thomas' remarks
were focused on his view that CN&S lacked links to the community
and an expressed "fear" that Cochran's team would not address the
broader social issues implicated by the case. (Id.)
According to Scheck, Louima saw an article dated February 3,
1998 by Peter Noel published in The Village Voice, entitled
"Louima's Dream Team Crumbles." (S. Tr. I at 110-11; Ex. 18).
Louima expressed concern that these types of statements would not
help him when he was testifying as a witness and would not help
either his civil case or the criminal case. (Id. at 110-11).
All of these articles were published after Louima sent the letter
of January 23, 1998 to T&F. (Id. at 111).
On February 6, 1998, Neufeld wrote a letter to Thomas and
Figeroux reminding them of the January 23rd letter and expressing
"Mr. Louima's serious concern with your continued communications
with the press concerning privileged and confidential matters
arising from your representation of Mr. Louima," and their
"repeated violations of Louima's express instructions in the
January 23rd letter." (N. Tr. I at 114; Ex. 10). The letter noted
the critical importance of their silence given the expected
return of criminal indictments in the then near future and
further warned that: "There is no question your conduct violates the Code of Professional Responsibility. We advise you
to cease and desist." (Ex. 10). According to Scheck, this letter
was authorized by Louima who was upset about the continued press
statements. (S. Tr. I at 114-15). Thomas and Figeroux did not
respond to the February 6, 1998 letter. (Id.; N. Tr. I at 114).
On June 1, 1999, Louima sent another letter to Thomas, Figeroux
and Roper-Simpson to remind them of their obligations of
confidentiality. (Ex. 11; N. Tr. I at 114-15).
Figeroux testified that he had not seen the January 28, 1998
Daily News article until it was produced in connection with the
fee hearing, and he also stated that he was not aware that Thomas
was communicating with the press after January 23, 1998. (F. Tr.
II at 6). However, when shown Exhibit 10, the February 6, 1998
letter from Neufeld which mentioned the press leaks, Figeroux
acknowledged having received the letter. (Id. at 8). He could
not recall, however, whether he had read any of the articles in
which either he or Thomas was quoted; "No I heard rumors, people
talking about the case, you know . . . but I never followed up or
anything like that." (Id. at 10).
Approximately one week prior to February 17, 1998, an article
appeared in The Village Voice, entitled "Fallen." (S. Tr. I at
115; Ex. 19). This article quotes Thomas as saying, "`We will not
be intimidated by Peter Neufeld and his media-hungry associates."
(Ex. 19 at 2). According to the article, Thomas "insists that he
and his colleagues resigned and claims Neufeld was behind an
attempt to prevent them from condemning `unethical behavior' by
the O.J. Simpson `dream team.'" (Id.) The article noted that
the controversy between the lawyers "has undercut the emotional
wave on which Abner Louima has been riding in the Haitian
Thomas is also quoted extensively as describing a meeting among
the lawyers at which the origins of the Giuliani time statement
were explored. (Id. at 4). Thomas stated that he and Figeroux "offered to resign." (Id.) In the article, Thomas also
describes the initial meeting between Cochran and Louima in the
hospital. (Id.) Figeroux is also quoted in the article, stating
that after Cochran "launched into a sales pitch" with Louima,
"`he came to me [Figeroux] and whispered, `I'd like to come on as
a consultant.''" (Id.)
Some of these same quotes appear in a July 7, 1998 Village
Voice article written by Peter Noel. (Ex. 20). This article,
entitled "Johnnie Came Lately," again quotes Thomas: "Thomas, a
former assistant district attorney, . . . accused Cochran and
company of ignoring minority concerns about cops and of isolating
the case from the larger movement against police brutality." (S.
Tr. I at 117-18; Ex. 20). Scheck testified that Louima was
concerned that these statements would undermine his support in
the community and he was concerned about "the perception that
either Mr. Cochran or myself or Mr. Neufeld would engage in
tactics that were deceiving," particularly since Louima
understood from discussions with Mr. Vinegrad and his attorneys
that, during the criminal trial, Louima could be cross-examined
about the civil case and his relationship with his lawyers. (S.
Tr. I at 118-19).
The July 7, 1998 article also stated that: "In January, Thomas,
Brian Figeroux, and Casilda Roper-Simpson quit the Louima legal
team over what they described as `professional and ethical
differences' with Cochran, Scheck, and Neufeld." (Ex. 20). Scheck
denied ever discussing any such issues with any of the T&F
lawyers nor was he present when any such conversations took
place. (S. Tr. I at 120-21). In addition, in this article, Thomas
discussed a dispute among the lawyers over the amount requested
in the Notice of Claim, alleging that, in persuading Louima that
T&F had made a mistake in filing a Notice of Claim for only $55
million, "`Cochran used Abner's ignorance of the law to try to create a problem for us.'" (Ex. 20 at 5).*fn73
In a subsequent Village Voice article dated September 22,
1998, Thomas is referenced as stating that the conflict between
the attorneys "arose when he and his colleagues felt that [CN&S]
. . . had improperly entered the explosive case.'" (Ex. 21).
Among various quotes appearing in this Village Voice article,
also by Peter Noel, entitled "Ex-Louima Lawyers' Lien on `Dream
Team,'" was the following statement from Thomas: "Thomas
described Cochran as a racial ambulance chaser who may have
`broken ethical canons' when he allegedly sidestepped Louima's
original legal team to solicit the role of lead attorney." (S.
Tr. I at 122; Ex. 21). According to Scheck, this issue was never
raised with CN&S by either Thomas or Figeroux. (S. Tr. I at 122).
This article, along with a March 28, 2000 article in The Village
Voice, entitled "Shake the Trees," allegedly written by Thomas,
was brought to Louima's attention and, according to Scheck,
Louima was very "upset" by these articles. (Id. at 121-23; Ex.
T&F contend that these comments to the press were "restrained
and truthful, going no further than necessary to explain why
Thomas & Figeroux had left the case." (T&F Post Trial Br. at 40).
They contend that the quotes "accurately reflect" the
alternatives given to T&F "resign or surrender . . . all
authority as counsel." (Id. at 41). They argue that the
statements quoted in the press, suggesting that Figeroux was the
subject of a federal investigation as a result of the Giuliani
time statement, "invited response" from T&F. (Id. at 42). When questioned, however, Figeroux acknowledged that many of
the things revealed to the press were in fact "secrets" gained
during the course of their professional relationship with Louima.
(F. Tr. II at 18-19, 21-22, 25, 27, 40-47). He also conceded that
Thomas' statements to the press in Exhibits 16, 17, 18, 19, 21,
and 31 were not made in a "restrained manner." (Id. at 24-25,
27, 40-43, 45, 47).
Figeroux admitted discussing the issue of press leaks with
Thomas after receiving Neufeld's letter dated February 6, 1998,
and stated that he presumed that what Thomas was doing was "in
Thomas and Figeroux's best interests in regard to the Louima case
and he would conform to whatever guidelines." (Id. at 32-33).
However, he also conceded that, in general, the lawyers were
required to do what was in Louima's best interest rather than
their own interest. (F. Tr. I at 226). According to Figeroux,
when he asked Thomas about the press issue, Thomas told him to
"`just ignore that because . . . it's not true.'" (F. Tr. II at
34). Figeroux admitted, however, that he took no steps to read
any of the articles to find out what Thomas was saying. (Id. at
U. The Allegations Contained in the Attorneys' Fee Papers
On March 12, 2001, CN&S submitted a Memorandum of Law in
support of their application for fee forfeiture, along with an
affidavit from Scheck, describing the events leading up to the
resignation of T&F, and detailing certain aspects of the alleged
misconduct by T&F.*fn74 Among other things, Scheck's affidavit related a conversation that had occurred on
March 6, 2001, a week prior to the filing of the affidavit, at
which Neufeld, Rubenstein and Figeroux had been present. (Scheck
Aff. ¶ 26; N. Tr. I at 116-117). According to Scheck, Figeroux
had threatened "`to go to war'" against Louima, CN&S, and the
Rubenstein firm if T&F were not paid one-third of the legal fees
in the case. (Scheck Aff. ¶ 27; N. Tr. I at 118). Figeroux also
stated that the fight would be "`on many different fronts,'" and
T&F would "`win, no matter what the cost.'" (Scheck Aff. ¶ 27; N.
Tr. I at 118). According to the Scheck Affidavit:
Mr. Figeroux then told Mr. Rubenstein and Mr. Neufeld
a story about a "short jewish man" who had written an
unfavorable story about him years ago. Mr. Figeroux
claimed that he pulled the man aside and told him
that in retaliation for what the man had said about
him, he would go into the man's community and "make
war against the man and his family." When Mr. Neufeld
asked Mr. Figeroux if he was making a threat, Mr.
Figeroux replied: "It's not a threat, it's a
(Scheck Aff. ¶ 27; see also N. Tr. I at 117-118).
Later, when asked during the fee hearing about the March 6th
meeting described by Mr. Scheck in his affidavit, Figeroux first
testified that he did not recall that meeting. (F. Tr. I at
78-79). Figeroux admitted that he received Scheck's March 12,
2001 affidavit, which described this meeting that had occurred
six days earlier, but he initially denied having read the
affidavit. (Id. at 84-85). Following colloquy with counsel,
Figeroux then testified that he "browsed through most of it. I
read some parts of it. I didn't read all of it." (Id. at 86).
He then could not remember if he read the part in the affidavit
about the March 6th meeting. (Id.)
When asked whether he told Rubenstein and Neufeld a story about
"a short Jewish man" who Figeroux had "made war against the man and his family," Figeroux
first testified that maybe they did not understand him because of
his "thick Trinidadian accent" and that he "did not say that."
(Id. at 87-88). Then he stated that he "never knew whether or
not the guy that I was talking about was Jewish. I did not say he
was a short Jewish man." (Id. at 88). He also denied saying
that he "made war against the man and his family." (Id.) When
asked about the claim that he threatened to "go to war" against
Louima, Figeroux testified that he recalled telling the other
lawyers that if T&F were not paid what they had contracted for,
"that we would take all measures, call it war or call it whatever
you want to secure our rights." (Id. at 80). He did not,
however, recall saying that they would "go to war" against Louima
personally. (Id.) When asked if he told the other attorneys
that the issue of legal fees "`would not end with a decision in
the courtroom' and that he would fight `on many different fronts'
and would `win, no matter what the cost'" (Scheck Aff. ¶ 27),
Figeroux testified that he did not recall if he used those
specific words, but he admitted telling CN&S that he would "take
whatever steps are necessary . . . to protect our interest."
(Id. at 81). He could not recall whether Neufeld asked him if
he was threatening Rubenstein and Neufeld, although he admitted
saying, "`It is not a threat, it is a promise.'" (Id. at 89).
He claimed that that particular statement was made in the context
of the story he was telling and was not directed at Neufeld and
At the time the Scheck affidavit was filed in March 2001, CN&S,
on behalf of Louima, sought a protective order preventing any of
the attorneys from discussing the motion for fees in public.
Based on the threats from Figeroux, the past press leaks and the
fact that CN&S were attempting to settle the civil action, CN&S
asked this Court to order that all papers filed in connection
with the fee application be sealed. That application was granted
on March 12, 2001. Thereafter, in response to CN&S's moving papers, T&F filed a
Memorandum of Law dated April 18, 2001, in which counsel asserted
that T&F was "forced off the case through the elimination of
[their] role as co-counsel" (T&F Mem. at 2), and that they
"`resigned' after they were constructively discharged through the
effective elimination of their role as co-counsel." (Id. at
With respect to the accusation that T&F allegedly disclosed
client confidences and secrets, T&F contended in their initial
responsive papers that "[a]t the time the alleged statements were
made, [T&F] . . . were subject to public criticism and
misrepresentations regarding the circumstances under which they
were discharged, or forced to resign, from the case." (T&F Mem.
at 9-10). T&F also stated in their responsive papers that they
"made certain very limited statements to the press describing in
broad, general terms the disagreements among counsel that led to
their departure from the case, and denying the accusations of
misconduct," and they contended that "[n]one of these alleged
statements constitutes a disclosure of protected client
information." (Id. at 2).*fn76 T&F claimed that they "were
mindful of their obligations to Mr. Louima and careful not to say
anything more than was necessary to defend their reputations and
explain their sudden departure from the case." (Id. at 6). They
also claimed that any statements that were made were " necessary
to establish their [right] to a fee" in the case. (Id.) Indeed,
during the fee hearing, although Figeroux did not recall making
any of the statements attributed to T&F in the various articles
(F. Tr. I at 228), he testified that his "understanding was that
anything that was done would have to be defensive if anything was said about [T&F]
resigning." (F. Tr. II at 32).
Finally, in their April 2001 papers, T&F took the position that
the statements made did not reveal anything that was not "already
generally known" and were in fact the "opinions of Messrs. Thomas
and Figeroux regarding the circumstances under which they were
forced out." (T&F Mem. at 8). They contended that these opinions
did not "implicate any client secrets or confidences," but
related "solely to broad, strategic disagreements among counsel."
(Id. at 9).
V. The Figeroux Affidavit
In December 2001, while the criminal case against defendant
Schwarz was still pending, T&F filed an affidavit from Figeroux,
dated December 19, 2001 ("Figeroux Aff."), in which he alleged
that T&F "were forced to resign because of ethical and strategic
disagreements with our co-counsel that made it impossible for us
to continue to represent the Louimas in the way that we believed
was appropriate." (Figeroux Aff. ¶ 2). The affidavit further
charged CN&S and Louima with engaging in serious, even criminal,
[A]fter CN&S entered the case, representatives of the
U.S. Attorney's Office, with whom Mr. Thomas and I
had an excellent relationship, called us to tell us
that they were concerned that Mr. Scheck was
improperly influencing witnesses' testimony by
meeting with witnesses before the prosecutors had a
chance to interview them, and essentially telling the
witnesses what to say.
(Id. ¶ 12). According to the affidavit, "Representatives of the
U.S. Attorney's Office asked us to put a stop to this practice."
(Id.) Mr. Figeroux then stated in his affidavit:
We knew that Mr. Scheck and others associated with
CN&S had been meeting with witnesses, sometimes in
groups, and "preparing" them in ways that we (and at
least some members of the U.S. Attorney's Office) believed to be improper. We spoke
to Mr. Scheck about it, and he refused to listen to
what we had to say. This obviously exacerbated the
tension among attorneys on the case, and was one of
the ethical issues that eventually led to our being
forced off the case.
The affidavit contained an even more serious charge directed
not only against the CN&S attorneys but against Louima,
suggesting that after CN&S lawyers had met with Tacopina,
Figeroux "observed a change in Abner's testimony." (Id. ¶ 14).
Specifically, the Figeroux affidavit stated:
We also learned at some point that the CN&S lawyer[s]
were having secret meetings with Joseph Tacopina,
counsel for Thomas Weise. We did not believe that
such meetings were likely to benefit the Louimas. In
fact, we believed that such meetings, and our lack of
prior notice regarding them, were improper. After
this meeting, we observed a change in Abner's
testimony regarding his recollection of which officer
Weise or Schwarz was present in the bathroom
while Volpe was assaulting Abner. This contributed to
our sense of discomfort with the way that witnesses
including Abner were being handled by our
co-counsel. We raised these concerns with our
co-counsel on numerous occasions, but our concerns
were rebuffed and ignored.
(Id.) Thus, in this Figeroux affidavit, T&F appeared to have
supplemented their earlier position as to why they had withdrawn
from the case, now asserting that their withdrawal was prompted
by ethical concerns relating to misconduct by Louima and by
W. CN&S Response to the Figeroux Affidavit
CN&S sought an order from this Court on January 25, 2002,
continuing the prior March 12, 2001 Protective Order and seeking
to modify it to prevent "Figeroux and those associated with him,
in the `guise' of preparation for the [fee] hearing, from
disclosing in any way the supposed confidences and secrets
relating to the obviously fabricated story of the perjury
conspiracy." (CN&S Mem. of Law, dated Jan. 25, 2002 at 12). CN&S
asserted that any knowledge Figeroux could have as to a change in
Louima's testimony would have been gained as a result of either
privileged conversations with Louima or through his observations
of his client during the course of the representation, and thus
Figeroux's affidavit constituted a breach of his ethical
obligations to Louima.
In connection with that application, Neufeld submitted an
affidavit to this Court asserting that Figeroux "has recently
engaged in a scheme to falsely accuse Mr. Cochran, Mr. Neufeld,
Mr. Scheck and Mr. Louima of participating in a perjury
conspiracy," and that these "false allegations" were designed to
"defeat the pending fee motion" of the CN&S firm. (Neufeld Aff.
¶¶ 8, 10). Neufeld further noted that Officer Schwarz had been
"engaged in a well-publicized campaign aimed at overturning his
much justified conviction" by proclaiming his innocence, and that
Figeroux's allegations that Louima lied about Schwarz's role, if
made public, "will set off a media frenzy" that would seriously
harm Louima. (Id. ¶ 11).
Mr. Neufeld further swore in his affidavit that Louima's
testimony before the state grand jury on two occasions, before
the federal grand jury in February 1998, and then in the three
subsequent federal criminal trials was consistent in that the
driver of the car Officer Schwarz "`was present in the
bathroom while Volpe was assaulting Abner.'" (Id. ¶ 13). When shown the statement in Figeroux's affidavit of December
19, 2001, that the original team was "forced to resign because of
ethical and strategic disagreements with our co-counsel," Scheck
testified at the fee hearing that no such issues had ever been
brought to his attention. (S. Tr. I at 125-26). Mr. Scheck also
denied the truth of the statement in Figeroux's affidavit which
read: "Mr. Scheck was improperly influencing witness testimony by
meeting with witnesses before prosecutors had a chance to
interview them and essentially telling the witnesses what to
say." (Id. at 127). Scheck further denied "meeting with
witnesses, sometimes in groups and `preparing' them in ways that
we (and at least some members of the United States Attorney's
Office) believed to be improper." (Id. at 128). He not only
denied preparing witnesses "in groups," but he stated that
neither Thomas or Figeroux had ever told Scheck that they felt he
was improperly preparing witnesses, contrary to the claim in the
affidavit that "we spoke to Mr. Scheck about it, and he refused
to listen to what we had to say." (Id. at 128-29). Scheck also
denied that either Ms. Palmer or anyone else from the U.S.
Attorney's Office ever asked the CN&S lawyers to stop speaking to
witnesses or ever asked Scheck to stop telling witnesses what to
say. (Id. at 127-28, 131-32).
Neufeld similarly denied that he or Scheck, to his knowledge,
had ever "improperly influenced any witness's testimony," never
told a witness what to say, and was never asked by the government
to put a stop to this practice. (N. Tr. I at 120-21). He also
denied the truth of Figeroux's statement that T&F had spoken to
CN&S about it, but they refused to stop, noting that the only
conversation Neufeld had with Figeroux about witnesses was one
where Figeroux said "there was no point in speaking to certain
Haitians witnesses because all Haitians lie." (Id. at 122).
Scheck testified that to his knowledge, neither the issue of
witness preparation or ethics had anything to do with the tensions between counsel, although
Scheck's investigation of the "Giuliani time" statement clearly
did. (S. Tr. I at 129-30). Mr. Scheck also denied that either
Thomas or Figeroux ever told him personally that they thought the
meetings with Weise's counsel "`were improper,'" nor was Scheck
ever made aware of "any change in Mr. Louima's recollection
concerning who was present in the bathroom" during the assault.
(Id. at 132-133).
In response to a question from the Court, Mr. Scheck explained
that at one point at the beginning of the case, Ms. Palmer had
asked CN&S not "to send investigators out to canvass the whole
neighborhood," but she "understood that we would be talking to
witnesses and doing our own investigation." (Id. at 131).
Cochran also testified that he and Scheck and Neufeld had
interviewed multiple witnesses. (C. Tr. II at 44). Cochran
admitted that he did not provide reports of these interviews to
the U.S. Attorney's Office. (Id. at 45). However, Cochran
denied ever having conducted a "parallel investigation," stating
that CN&S encouraged witnesses to speak to law enforcement and
turned over all relevant information to the government. (Id. at
49). Cochran explained that, although he generally questions the
efficacy of government investigations of police wrongdoing, in
this instance he had complete confidence in the U.S. Attorney's
Office. (Id. at 50-52).
Palmer testified that while she was unaware of any independent
investigations conducted by CN&S, she knew that CN&S were focused
on building a civil case on behalf of Louima and pursuing a
lawsuit against the PBA. (P. Tr. at 70-71).*fn78 While Mr.
Thompson explained that it was important for the prosecution to control the investigation, he also knew that
CN&S were interviewing witnesses and it was agreed that they
would keep the government informed and send witnesses on to the
government. (T. Tr. at 248-49). Thompson was not aware, however,
that CN&S had hired private investigators or interviewed more
than 50 witnesses. (Id. at 149). Thompson noted that he would
have had concerns with regard to a large scale investigation by
CN&S, because witnesses might give conflicting accounts and would
be less likely to lie to a federal agent or a prosecutor. (Id.
Mr. Vinegrad testified that he was made aware of the fact that
CN&S had interviewed people present at the Club Rendez-Vous on
the night of the incident and had investigated the origin of the
Giuliani time statement. (V. Tr. at 265, 267-68). Vinegrad
acknowledged that to the extent CN&S were representing Louima in
the civil action, they "had an obligation consistent with
Rule 11. . . . to make sure that that lawsuit was well founded and
filed in good faith." (Id. at 301). While Vinegrad was not
aware of a broader investigation conducted by CN&S, he testified
that if CN&S had been conducting their own extensive
investigation of the facts, he would have wanted to know who they
spoke to and what evidence they obtained. (Id. at 265-66).
X. The FBI Interview and Figeroux's Deposition
In response to CN&S' application to extend the protective
order, T&F submitted a Memorandum in Opposition to Continuance of
Protective Order, dated February 11, 2002, seeking to lift the
Protective Order to allow the attorneys to discuss the various
issues raised by the CN&S fee forfeiture application. In that
Memorandum, T&F asserted that "Mr. Figeroux's allegations are
. . . neither `recent' nor a `fabrication,'" and stated that "we
will show at the hearing" that T&F raised their concerns about Louima's change in testimony with co-counsel and
with the government. (T&F Mem. at 27 n. 2). However, T&F also
conceded in the Memorandum that "without access" to the grand
jury minutes, "it is impossible to assess the veracity" of the
contention that Figeroux's allegation was false. (Id.)
Nevertheless, the Memorandum further stated:
Mr. Figeroux must make his own judgment about what
his [Figeroux's] rights and obligations are with
respect to disclosing, beyond this Court, his
concerns regarding Mr. Louima's statements about the
identity of his second attacker.
(Id. at 26). In moving to lift the protective order, Figeroux
represented to this Court that he believed he had an ethical
obligation to disclose the fact of Louima's changed testimony,
presumably to prevent a future crime namely, perjury by Louima
in the upcoming Schwarz trial.
Given that the hearing to address the fee dispute had been
adjourned pending the trial of Officer Schwarz, this Court denied
T&F's request to lift the protective order at that time, but
modified it slightly with the consent of Louima to authorize
disclosure to a federal Grand Jury of paragraph 14 of the
Figeroux Affidavit and footnote 2 of the T&F Memorandum of Law.
(Order, dated April 3, 2002). By letter dated March 27, 2002, the
U.S. Attorney's Office had sought authorization to obtain these
portions of the T&F Memorandum and Figeroux's Affidavit.
Following disclosure, the FBI conducted an interview of
Figeroux on April 2, 2002. In the notes prepared by the FBI of
the interview on April 2, 2002, Figeroux is reported to have
admitted to the FBI that he did not know what Louima had
testified to, conceding that he "`never read Louima's court
testimony or the media accounts of that testimony.'" (F. Tr. I at
142; Ex. 43). He also allegedly told the FBI that he was "`pissed
that more people aren't in jail or charged' (with crimes related
to the assault of Louima)," and that "`he believe[d] this is due
to a lack of focus by the new attorneys.'" (F. Tr. I at 143; Ex. 43). Figeroux told the FBI investigators that although he
believed it was Weise in the bathroom, at some point later,
around the time of the Tacopina meetings, Figeroux learned that
it was suspected that Schwarz was the second officer in the
bathroom. (F. Tr. I at 146-48; Ex. 43).
When questioned at the fee proceedings about the FBI interview,
Figeroux acknowledged that he told the FBI that he was concerned
about what was being said in the media and that the case was not
being properly investigated "due to the lack of focus by the new
attorneys." (F. Tr. I at 142-43, 145). According to his
statements to the FBI, Figeroux never said to anyone at the time
of CN&S' meetings with Tacopina that Louima's account had
changed. (Id. at 143). Figeroux testified that it was true that
at that time, he did not know what Louima had testified to in
court, but he also stated that it "may or may not be true,"
since, as he told the FBI, "he never read Louima's court
testimony or media account of that testimony." (Id. at 145).
Figeroux testified, "I never said that he said anything that was
different. My problem is if he is saying certain things, why did
the case go in x direction rather than y direction?. . . . I
thought that day that Weise would have been the one in the
bathroom rather than Schwarz. That is what I believed." (Id. at
Following the FBI interview, the prosecutors, on April 22,
2002, provided certain disclosures to Ronald Fischetti, Esq.,
counsel to defendant Charles Schwarz, regarding Figeroux's
statement that Louima had changed his story. The press quickly
reported Figeroux's perjury charge against Louima. On April 30,
2002, an article in The New York Times reported that "a former
lawyer for Abner Louima once said Mr. Louima had changed his
account on a pivotal issue." (Ex. 32). Another New York Times
article, dated May 18, 2002, and referred to by CN&S in their
papers filed after the fee hearing, quotes Schwarz's attorneys as
stating that "Schwarz would very likely have been acquitted at the first trial had this information [Figeroux's statement] been
disclosed." (CN&S Post-Trial Br. at 76). The New York Sun also
ran an article on April 30, 2002, titled, "Louima Lawyer Said
Schwarz Played No Role In Torture." (F. Tr. I at 129; Ex. 33).
That article, quoting a motion filed by Schwarz's attorney,
reported that, according to the government, "`Figeroux later
recanted the statements.'" (F. Tr. I at 129, 151-52; Ex. 33).
This alleged statement by the government prompted Figeroux's
attorneys to send a letter to this Court, dated May 13, 2002,
asserting that the government's claim that Figeroux had
"recanted" his statement was "less than entirely accurate," and
arguing that it was necessary to lift the Protective Order so
that Figeroux could publicly respond. (See Letter of Thomas
Kissane, dated May 13, 2002, at 2, Ex. 57).*fn79 On May 10,
2002, the government provided that portion of Figeroux's
affidavit dealing with Louima's purported change in testimony, as
well as the notes of Figeroux's FBI interviews relating to this
statement and to the "Giuliani time" investigation, to Fischetti.
(See Letter of Alan Vinegrad, dated May 10, 2002).
The government's disclosure prompted Fischetti to write to this
Court seeking more information. (See Letter of Ronald
Fischetti, dated May 21, 2002). Fischetti's motion eventually led
to an order from the district judge presiding over the Schwarz
trial, the Honorable Reena Raggi, allowing Figeroux to be deposed
prior to the Schwarz trial.
On June 20, 2002, Fischetti conducted Figeroux's deposition.
Fischetti questioned Figeroux about the affidavit submitted in the fee proceedings and the
paragraph relating to the Tacopina meetings. (Ex. 41 at 31-32).
At the deposition, Figeroux affirmed that the contents of the
affidavit, including paragraph 14, were true and that he "read
[the affidavit] before [he] signed it." (Id. at 31). However,
when asked what change in Abner's testimony Figeroux observed,
Figeroux could not remember anything that Louima had said that
constituted a change in his recollection of the incident. (Id.
The following colloquy occurred at the deposition:
Q: You stated . . . that you observed a change in
Abner Louima's testimony regarding his recollection
of which Officer Wiese or Schwarz was present in the
bathroom while Volpe was assaulting Abner.
What observations did you make of Abner Louima that
caused you to write that?
A. There was testimony that should be used, but it
wasn't testimony, just, you know, we were having
discussions with him over a period of time.
. . . .
Q: And you noticed a change in what he was telling
you that occurred after the meeting that Cochran,
Scheck and Neufeld had with Joe Tacopina, that is
what you are saying?
A. During our discussions with him. I personally
believed that at one time that it was Wiese in the
bathroom and not Schwarz. I cannot pinpoint any
particular testimony, you know, discussions by Abner,
but based on, from general point of view, that's what
Q. But you say here that "I observed a change in
Abner." I am trying to find out what change you
Did he tell you something differently than he had
told you before?
A. I would say that change is more how do we move
from at least in my head, Wiese Schwarz, now, how
did we move from that, you know. It was not general
consensus that it was Wiese in the bathroom. I am
talking about my own personal. I thought it was Wiese
and not Schwarz, and throughout that time,
discussions with Carl, you know, I let him know that
I thought, and know, I was concerned about that.
Q: But you say in your affidavit that you observed a
change in Abner's testimony. You are now telling us
not testimony but what he told you?
Q: What I would like to know is what change did you
A: I can't pinpoint anything. I am just saying that
based my opinion of what I knew at that time and
there were other circumstances, obviously things that
were happening that, you know, I thought that the
focus was not on the client, but on other issues.
(Id. at 33-35) (emphasis added).
Ms. Roper-Simpson was also interviewed by the FBI and deposed
in connection with the Schwarz trial. She testified that she
saw no change in Louima's testimony: "I didn't notice any change
in Mr. Louima's recollection of what happened. The only changes
that I recall . . . [were] that he was more adverse to us, as to
[CN&S]." (Ex. 42 at 44).
Y. Figeroux's Testimony at the Fee Proceeding Figeroux was shown his December 19, 2001 Affidavit during the
fee proceedings before this Court and asked if he intentionally
filed a false affidavit in connection with the fee application.
(F. Tr. I at 91). Figeroux denied that the affidavit was false.
(Id.) When asked how he learned about the meetings between
Tacopina and CN&S, Figeroux testified that he learned about the
meetings from Mr. Thomas. (Id. at 93). He testified that one of
the reasons he ceased to represent Louima was because of these
"improper" meetings. (Id. at 95). However, it is clear that the
initial premise of paragraph 14 is false in that it suggests that
Figeroux saw a change in Louima's testimony immediately after the
Tacopina meetings. The evidence is clear that Figeroux, who
learned of the Tacopina meetings from Thomas, did not learn of
the meetings until long after they occurred.*fn80 When asked
if he raised the issue of the Tacopina meetings with CN&S,
Figeroux did not directly answer the question. (Id.) Instead,
he responded by testifying that the statement in the affidavit
that "`our concerns were rebuffed and ignored'" were his words
and that he "didn't understand why we had to make decisions on
the consensus and we couldn't act independently." (Id. at
Figeroux was also questioned at the fee hearing regarding the
statement in his affidavit that "[a]fter this meeting we observed
a change in Abner's testimony regarding his recollection of which
officer Weise or Schwarz was present in the bathroom while
Volpe was assaulting Abner." (Ex. 56 ¶ 14). When asked if he ever
saw a change in Louima's "testimony," Figeroux stated that
"[o]bviously, that wasn't the situation." (F. Tr. I at 105). For
the first time, Figeroux testified that "[w]e used the wrong
words." (Id.) Figeroux testified that the word "account" might
have been a better word to use and should have been the word used in the
affidavit. (Id. at 131). Figeroux asserted that during the time
he was representing Louima, he "always believed that the person
who was in the bathroom was Weise and not Schwarz." (Id. at
103). Although the affidavit refers to a "change in Abner's
testimony," Figeroux testified that "I believe I may have
overlooked the word [testimony] at the time when I signed it. I
realized it and we remedied that." (Id. at 98). Figeroux
testified that he did not draft the affidavit, and when asked if
he saw a draft before he signed it, he testified that he could
not remember. (Id. at 99). He admitted that the affidavit was
an important document and that he was swearing to it under oath.
(Id. at 100-01). He conceded that by using the word "testimony"
in his affidavit, he had accused Louima of changing his testimony
and that "obviously caused problems." (Id. at 120-21). Figeroux
admitted that there was public controversy as a result of his
affidavit, which suggested that Louima was not telling the truth.
(Id. at 153-54).
Figeroux was questioned at the fee proceeding regarding his
testimony during the deposition taken by Fischetti. (Id. at
106). Figeroux agreed that when Fischetti asked him about this
statement in his affidavit during the deposition, Figeroux told
him that the change was not in Louima's testimony "but [in] what
he told" Figeroux. (Id. at 107). Later, Figeroux insisted that
Louima's account of the incident had changed, "because he
[Louima] made certain statements and for whatever reason the
government investigators didn't believe him." (Id. at 134).
Figeroux testified that "[f]or whatever reason the client at all
times . . . was not telling the truth to the investigators. . . .
I was concerned that if Schwarz was innocent, I would not like
Schwarz to go to prison. . . . I believe that I had an obligation
to say something, and that is what I did." (Id. at 134-35).
However, when pressed during the fee hearing to verify that he
had told Fischetti that he could not identify any change in Louima's "testimony," Figeroux
responded that he could not recall what he had said in that
regard at the deposition. (Id. at 107). When asked when
Figeroux first realized there was a mistaken use of the word
"testimony" in his affidavit, Figeroux testified that he could
not remember. (Id. at 110). He later claimed that he discovered
in March 2002 that there was an error in the affidavit when he
met with his attorney prior to meeting with the FBI. (F. Tr. II
at 81). However, when shown Neufeld's affidavit of January 25,
2002, claiming that Figeroux "has recently engaged in a scheme
[to] falsely . . . accuse Mr. Cochran, Mr. Neufeld, Mr. Scheck
and Mr. Louima of participating in a perjury conspiracy,"
Figeroux conceded that he had seen Neufeld's affidavit before.
(F. Tr. I at 115-16). Figeroux then admitted that it was in
January 2002 that the mistaken use of the word "testimony" was
pointed out to him. (Id. at 116, 118). When asked if he knew
what his obligations were to correct the false statement,
Figeroux testified that "[w]hatever my obligations were at that
time I can't say my attorney addressed those issues." (Id. at
120). However, he could not recall when he corrected the error.
(Id. at 110).*fn81 When asked what was done to correct the
error, he testified that his understanding was that "a number of
meetings were arranged. I was deposed by [Fischetti]. . . . and
steps were taken to correct this error." (Id. at 120).
Figeroux further testified that his "presumption was that the
correction was supposed to be made when we met with the FBI."
(Id. at 154). He denied that he had done nothing to correct the
statement between January 25, 2002, when Neufeld raised it in his
affidavit, until he met with the FBI in April 2002, stating
"[t]hat is not true. I met with my attorney sometime in March. We
discussed that issue in detail. We went through the statements together, and we
addressed that issue." (Id. at 156). He believed that his
attorney "would deal with that issue." (Id. at 157). Figeroux
claimed that the affidavit wasn't false, but that the use of the
term "testimony" "was an error that was made. . . . It was not
intentional." (Id. at 159).
However, through May of 2002, Figeroux refused to admit that
there was an error in the affidavit, as evidenced by his lawyers'
letter requesting this Court to lift the protective order. (Id.
at 149-50). That letter specifically states that "we wish the
court to be aware that we . . . disagree with the government's
assertion that Mr. Figeroux recanted the statements in Paragraph
14 of his December 19, 2000 affidavit." (Id. at 151-52). Even
at the fee proceeding, Figeroux testified that he "never thought
there was . . . any false statements in paragraph 14." (F. Tr. II
at 88). He testified that other than the word choice of
"testimony" which was a "mistake," nothing else was inaccurate
about the paragraph. (Id. at 89).
Figeroux also claimed that he raised the issue of his concern
regarding Louima's identification of his second assailant with
Neufeld and possibly with Scheck or Rubenstein in the fall of
1997. (Id. at 77-78). He claims he was "casual" so they may not
have paid attention to it. (Id. at 78).
When Figeroux was asked by this Court at the fee proceeding if
he actually did observe a change in Louima's account of which
officer was in the bathroom, Figeroux never directly answered the
question. He stated:
THE WITNESS: Most of it was directly only the
discussion among the attorneys, and it was not a
change in his. He, at one time, obviously, he said
one thing to the prosecution, right? They questioned
him, and he said X, and they said it is not true. All
right? At whatever time he probably they decided it was
true, because they the trial, is that right? So at
one time we were not there for all of the meetings.
We were in there for the trial itself for Volpe and
If my concerns at that time, right, that it was Wiese
rather than Schwarz. I never felt comfortable about
how it became Schwarz rather than Wiese.
Obviously, they may have corrected that information
as they went along. The FBI might have corrected,
. . . . Then when the issue came up in the news that
it was not Schwarz, it wasn't Wiese. Schwarz was
saying it was not him in the bathroom, and all this
issue came up. Then I became concerned again.
That is specifically what I was trying to address
there. That whatever happened, I wanted the truth to
(F. Tr. I at 135-36).
However, when pressed again by the Court as to what specific
statements Louima had made that constituted a change in Louima's
account, Figeroux again could not answer the question. He stated:
THE WITNESS: My concern was that at the early stages
I really believed that the person who was in the
bathroom, based on Abner's account, was Wiese. That
was in the early stages of the case.
For whatever reason, I believe that and others may
not believe it. I think we discussed it. That was
based on what Abner said.
So if logically at some point in time if, you know, I
wasn't there all of the time, right? If for whatever reason, okay it is now Schwarz and Wiese.
Let's accept it, all right? There had to be to me in
my mind either some changes in his account or I don't
know what evidence the government had gotten to
enhance that argument that Schwarz was the guy in the
bathroom rather then Wiese.
(Id. at 137-38).
Despite his inability to answer this Court's question, when
questioned by his attorney on the next day of the hearing,
Figeroux suddenly recalled the basis for his conclusion that
there might have been problems with Louima's identification of
the second attacker. (F. Tr. II at 92). Specifically, he claimed
that during the break in his testimony, he decided to reread the
notes of the meeting between CN&S and Tacopina. (Id. at 92-94;
Court Ex. 1). Although he had read them before, he claimed that
his recollection was refreshed as follows:
A. The paragraph starting heading towards the beach
on Flatbush Avenue and there would be a left on to
another road when they see police officers on foot in
pursuit of other civilians. Tommy Weise thinks he
sees where the people went who were getting away,
gets out of the car to help. . . . it's not clear how
long he's gone but . . . when he returns, Schwarz is
in the back seat, apparently, assaulting.
(Id. at 95-96). He then stated that these notes "reminded me of
that early issue where, based on Abner's account, the rear seat
of the driver, at that particular time, I believe the driver was
changed and it may have been Schwarz is driving, not showing
which is the order." (Id. at 96). In other words, Figeroux
claimed that it was his belief that between the two locations,
the driver changed seats and another officer drove the vehicle.
(Id.) He claimed that Louima had initially stated that the
officers made two stops on the way to the precinct on the night
of the incident. (Id.) When asked to identify the basis of his belief that Louima's
account regarding the switch in drivers had changed over time,
Figeroux's testimony was extremely unclear. (Id. at 96-102).
Indeed, again he could not identify a single conversation that he
had had with Louima at which this had been discussed. (Id.)
The government prosecutors were questioned about various
statements in the Figeroux affidavit and about Figeroux's
testimony. Palmer denied the claim in Figeroux's affidavit that
she had an "excellent relationship" with Figeroux. (P. Tr. at
53). She also denied that she ever called T&F to tell them she
was concerned about CN&S influencing witnesses' testimony or
preparing witnesses in ways which were improper. (Id. at
54-55). She did testify that she asked CN&S directly not to
canvass the neighborhood and they complied. (Id. at 56).
When asked if she ever observed a change in Louima's testimony,
Ms. Palmer adamantly responded: "[t]hat statement is
affirmatively false." (Id. at 58). When asked if Louima's
"account" of the incident had changed, Palmer responded, "[f]rom
the very first day that we met with Abner in the hospital bed, he
affirmatively told us that it was the driver. It was always the
driver. The driver was Schwarz. He never changed or wavered in
any of his dealings with us as to that fact." (Id. at 59). She
also refuted Figeroux's testimony that there was a change in
Louima's account as to the number of stops the officers made on
the way to the precinct on the night of the incident. (Id. at
Thompson also denied that he ever saw a change in Louima's
recollection after the Tacopina meetings: "I believe Abner was
consistent from the very beginning that it was the driver . . .
who took him into that bathroom and held him down." (T. Tr. at
283-84). Louima never once told Thompson that it was Weise and
not Schwarz. (Id. at 284). Mr. Thompson also denied that he
ever contacted Figeroux or Thomas to express concern that Scheck was improperly
influencing witnesses' testimony or "telling the witnesses what
to say." (Id. at 277-78). He testified that he may have spoken
to Thomas about the fact that people were being interviewed,
"without letting [the government] have a first shot at them," but
he did not accuse them of "trying to influence what [the
witnesses] were saying." (Id. at 279). He did not have any
evidence to suggest that CN&S continued to interview people after
being asked not to by the U.S. Attorney's Office. (Id. at 280).
Mr. Vinegrad testified that he first saw paragraph 14 of the
Figeroux Affidavit in late March or early April of 2002. (V. Tr.
at 249). He testified that he "was very surprised" when he
learned the substance of the affidavit "because to my knowledge
and understanding Mr. Louima had been consistent in all of the
various statements that he made about the issue in the third
sentence," regarding the second officer in the bathroom. (Id.
at 250-51). According to Vinegrad, who was familiar with all of
Louima's prior testimony, Louima had been consistent throughout,
always referring to the "driver." (Id. at 251). Vinegrad
testified that he never saw a change in Louima's testimony or
statements that would support Figeroux's allegation that Louima
changed his account. (Id. at 254-55).*fn82
As a result of these allegations, Vinegrad and his team
"expended considerable effort investigating that allegation,"
first getting access to the affidavit from this Court, and then
conducting interviews of numerous people, including Figeroux,
Roper-Simpson, and a number of people from the District Attorney's Office. (Id. at 252). The government was
also forced to litigate the circumstances behind the affidavit,
resulting in Fischetti's taking the depositions of Figeroux and
Roper-Simpson "literally days before the commencement of the
trial proceedings." (Id. at 253). Vinegrad testified: "So this
allegation caused us a considerable amount of further
investigative work at the time we were, again, between two and a
half months to the eve of trial." (Id.)
There were also leaks to the press which caused the government
concern because "it was pretrial publicity of matters that
[Vinegrad] did not know . . . would ever be admitted into
evidence," and because he believed the allegation by Figeroux was
"false" and he had concern about false information in the media
shortly before the trial. (Id. at 253-54). Vinegrad also
confirmed that insofar as there was any question as to who was in
the bathroom with Louima, he did not have any information to
suggest that the government's investigation had proceeded in the
wrong direction. (Id. at 261).
CN&S contend that T&F, as well as Roper-Simpson, are not
entitled to recover fees because they withdrew from the case
without cause. (CN&S Post-Tr. Br. at 111). In the alternative,
CN&S contend that T&F's discussion of client confidences and
secrets in the press, without their client's authorization,
constitute such a serious breach of T&F's ethical obligations as
to warrant forfeiture of their fees.
T&F, on the other hand, contend that they were terminated from
representation of the Louimas without cause, or, in the
alternative, their withdrawal was justified by the "pervasive and
unwarranted accusations of misconduct" directed at T&F by Louima
and CN&S. (T&F Post-Tr. Br. at 49). Specifically, T&F contend that CN&S engaged in a concerted
campaign to eliminate T&F from the case by a variety of means,
including: (1) failing to advise T&F regarding the CN&S
investigation; (2) failing to inform T&F of the CN&S meetings
with Tacopina; (3) disparaging T&F to Louima; (4) "initially
indulging Louima's efforts to blame [T&F] for `inventing' the
`Giuliani time' statement, and then encouraging Louima to blame
Figeroux for leaking Louima's retraction of the statement and
related matters to the press" (T&F Post-Tr. Br. at 23); and (5)
preventing T&F from speaking to Louima "after he had fired them."
T&F assert that CN&S has continued in a "scheme" designed to
discredit T&F in order to maximize CN&S' share of the fees,
including CN&S' efforts during the fee hearing before this Court
to promote "half-truths, distortions . . . and irrelevancies,"
including the claim that T&F voluntarily resigned from the case.
(Id. at 3). T&F contend that not only do CN&S lack standing to
raise any purported breaches of duty by T&F to Louima (id.),
but that the only misconduct warranting the forfeiture of fees
was perpetrated by CN&S in trying to drive T&F from the case. T&F
assert that they are entitled to receive 100% of the fees as a
result of CN&S' own unethical conduct in the case. (Id. at
As an initial matter, federal courts "have independent
authority to regulate attorney admission and withdrawal, and
ancillary to that, the authority to determine attorney's fee
disputes and regulate attorney's fee liens." Rivkin v. A.J.
Hollander & Co., Inc., No. 95 CV 9314, 1996 WL 633217, at *2 (S.D.N.Y. Nov. 1, 1996).*fn83 The "nature and extent of an
attorney's lien is controlled by federal law," Pomerantz v.
Schandler, 704 F.2d 681, 682 (2d Cir. 1983), where, as here, the
underlying action is brought pursuant to the Federal Civil Rights
Acts, 42 U.S.C. § 1983, 1985, 1986 and 1988. See, e.g.,
Misek-Falkoff v. Int'l Bus. Machs. Corp., 829 F. Supp. 660, 663
(S.D.N.Y. 1993) (noting that issues relating to an attorney's
lien are governed by federal law "certainly in a federal question
case and perhaps in all cases in federal court").*fn84
Thus, while the issues to be determined in this fee dispute are
governed by state rules of attorney conduct and state laws
regulating the relationship between an attorney and his or her
client, this Court remains mindful of its responsibility to
ensure that the policies underlying the federal statutes at issue
in this case are observed. See Rivkin v. A.J. Hollander & Co.,
Inc., 1996 WL 633217, at *2 (noting that both the N.Y. statutory
charging lien and the common law retaining lien "are recognized
and followed in the federal courts, as a matter of state or
federal law, unless a specific federal law alters the parties'
rights"). The federal policy behind the civil rights statutes "is
to deter state actors from using the badge of their authority to deprive individuals of their
federally guaranteed rights," Wyatt v. Cole, 504 U.S. 158, 161
(1992), and Congress specifically provided for the recovery of
attorney's fees by the prevailing party in civil rights actions
to encourage counsel to pursue such actions. See Kerr v.
Quinn, 692 F.2d 875, 877 (2d Cir. 1983) (holding that "[t]he
function of an award of attorney's fees is to encourage the
bringing of meritorious civil rights claims which might otherwise
be abandoned because of the financial imperatives surrounding the
hiring of competent counsel"). Section 1988 confers broad
discretion on the district court in determining whether to allow
an award of attorney's fees, and what an appropriate award of
fees should be in any given action. See Raishevich v. Foster,
247 F.3d 337, 344 (2d Cir. 2001). While the attorneys in this
case do not seek an award of statutory fees from the defendants
because a settlement with defendants was reached inclusive of
fees, this Court has a duty to ensure that, in determining the
allocation of fees, the policies behind the federal civil rights
laws are not circumvented.
B. Attorney's Lien
When an attorney ceases to represent a client during the course
of a proceeding, the attorney may seek to protect his right to
fees either by invoking a retaining lien on the files of his
client, see, e.g., Pomerantz v. Schandler, 704 F.2d at 683
(noting that "[i]t is settled that an attorney may claim a lien
for outstanding unpaid fees and disbursements on a client's
papers which came into the lawyer's possession as the result of
his professional representation of his client"), or through the
assertion of a statutory charging lien on any amounts recovered
by the attorney's former client in the proceeding. See Casper
v. Lew Lieberbaum & Co., Inc., No. 97 CV 3016, 1999 WL 335334,
at *5 (S.D.N.Y. May 26, 1999).
Section 475 of the Judiciary Law of the State of New York
provides the basis under which attorneys may assert their right
to a lien upon the proceeds of their client's cause of action:
From the commencement of an action . . . in any court
. . . the attorney who appears for a party has a lien
upon his client's cause of action . . . which
attaches to a verdict, report, determination,
decision, judgment or final order in his client's
favor, and the proceeds thereof in whatever hands
they may come; and the lien cannot be affected by any
settlement between the parties before or after
judgment, final order or determination. The court
upon the petition of the client or attorney may
determine and enforce the lien.
N.Y. Jud. Law § 475 (McKinney); see, e.g., Itar-Tass Russian
News Agency v. Russian Kurier, Inc., 140 F.3d 442
, 448 (2d Cir.
1998); Cohen v. N.Y. City Health & Hosp. Corp., 2001 WL 262764,
at *1; Caribbean Trading & Fidelity Corp. v. Nigerian Nat'l
Petroleum Co., No. 90 CV 4169, 1993 WL 541236, at *3 (S.D.N.Y.
Dec. 28, 1993). A lien created by Section 475 is fully
enforceable in federal court "`in accordance with its
interpretation by New York courts,'" Itar-Tass Russian News
Agency v. Russian Kurier, Inc., 140 F.3d at 449 (quoting
Chesley v. Union Carbide Corp., 927 F.2d at 67), and the Second
Circuit has held that federal courts have the responsibility to
exercise supplemental jurisdiction over an attorney's claim for a
lien "`to protect its own officers in such matters as fee
disputes.'" Id. at 444 (quoting Cluett, Peabody & Co., Inc. v.
CPC Acquisition Co., Inc., 863 F.2d 251
, 256 (2d Cir. 1988)).
An attorney's lien under Section 475 attaches "from the moment
the action commences" and attaches not only to any judgment that
the client may obtain but also to the proceeds of any settlement
between the parties to the underlying action. See Caribbean
Trading & Fidelity Corp. v. Nigerian Nat'l Petroleum Co., 1993 WL 541236, at *4 (citing cases). The Second
Circuit has also made it clear that "where a defendant settles
with a plaintiff without making provision for the fee of the
plaintiff's attorney, that attorney can in a proper case proceed
directly against the defendant." Chesley v. Union Carbide
Corp., 927 F.2d at 67.
The New York courts have, however, held that the charging lien
provided for in Section 475 is confined to the "attorney of
record" and "`is not broad enough to include counsel.'"
Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d
at 450 (quoting In re Sebring, 238 A.D. 281, 288, 264 N.Y.S. 379,
387 (4th Dep't 1933)); Cataldo v. Budget Rent A Car Corp.,
226 A.D.2d 574, 641 N.Y.S.2d 122, 123 (2d Dep't 1996) (stating
that "[t]he Court of Appeals has clearly stated that [Section
475] grants a lien to the `attorney of record'"). In defining
what qualifies counsel as "attorney of record," New York courts
have held that the attorney must "appear" on behalf of the client
"in the sense of participating in a legal proceeding on the
client's behalf or by having his name affixed to the pleadings,
motions, records, briefs, or other papers submitted in the
matter." Ebert v. New York City Health & Hosp. Corp.,
210 A.D.2d 292, 619 N.Y.S.2d 756, 757 (2d Dep't 1994); see also
Cataldo v. Budget Rent A Car Corp., 226 A.D.2d at 574,
641 N.Y.S.2d 123; Cheng v. Modansky Leasing Co., Inc., 137 A.D.2d 781,
783, 525 N.Y.S.2d 328, 330 (2d Dep't 1988) (holding that "an
attorney whose name nowhere appears in the pleadings, motion
papers, affidavits, briefs or record in a plaintiff's action is
not entitled to seek a . . . charging lien under [Section] 475"),
rev'd. on other grounds, 73 N.Y.2d 454, 539 N.E.2d 570,
541 N.Y.S.2d 742 (1989).*fn85 Indeed, the fact that an attorney has a retainer agreement "is
insufficient to create a charging lien" under Section 475. Ebert
v. New York City Health & Hosp. Corp., 210 A.D.2d at 292, 619
N.Y.S.2d at 757; see also Rodriguez v. City of N.Y.,
66 N.Y.2d 825, 827-28, 489 N.E.2d 238, 239-40, 498 N.Y.S.2d 351, 353
(1985) (holding that where the retained attorney hires a second
attorney to act "of counsel" but the second attorney in fact
handles all pleadings and the trial, the second attorney is
considered counsel of record even though he had no direct
retainer agreement with the client). On the other hand, the
Second Circuit has held that there may be more than one attorney
of record, and nothing limits an attorney who has a valid lien
from seeking compensation simply because another attorney of
record also appeared on behalf of the plaintiff. Itar-Tass
Russian News Agency v. Russian Kurier, Inc., 140 F.3d at 452.
Even where an attorney is not found to be counsel of record and
thus entitled to a charging lien under Section 475, the Second
Circuit has noted that there are cases which support the
proposition that such an attorney may nevertheless be an
equitable assignee by virtue of an agreement between the
attorneys. See id. (discussing Woodbury v. Andrew Jergens
Co., 69 F.2d 49, 50 (2d Cir. 1934), where the plaintiff had
agreed to pay a percentage of the recovery to his attorneys, one
of whom was not the attorney of record, yet that attorney
nevertheless "`became by the law of New York an equitable
assignee of the cause of action pro tanto' though he had no
charging lien for fees"). In these instances, it is not necessary
for the attorney asserting an "equitable lien" to show that he
has an agreement directly with the client; "`[i]t was sufficient
that he was employed under the agreement made with [co-counsel],
who acted, in making it, with the authority of [the clients], and
on their behalf.'" Id. at 453 (quoting Harwood v. LaGrange, 137 N.Y. 538, 540,
32 N.E. 1000 (1893)). "Thus, the distinction between an `attorney of
record' and one who is `of counsel' may be of little practical
significance in cases where attorneys have agreed among
themselves to share in the fruits of their combined labor." Id.
When the attorney's retainer agreement with the client assigns
to the attorney a portion of the proceeds of the action, the
attorney "acquires . . . a vested property interest which cannot
subsequently be distributed by the client or anyone claiming
through or against the client." People v. Keeffe, 50 N.Y.2d 149,
156, 405 N.E.2d 1012, 1015, 428 N.Y.S.2d 446, 449 (1980).
The attorney's lien is enforceable by the court in which the
action is pending, id. (citing New York Judiciary Law § 475),
and the outgoing attorney's fees will be considered a charge to
be included within the fees of the incoming counsel. See
Reubenbaum v. B&H Express, 6 A.D.2d 47, 50, 174 N.Y.S.2d 287,
291 (1st Dep't 1958).
In this case, T&F ceased representation of the Louimas before
any papers were filed in this federal civil action. The Summons
and Complaint were not issued and filed until August 6, 1998,
over seven months after T&F's relationship with the Louimas
ended. The only document filed in connection with the action that
was signed by T&F was the Amended Notice of Claim, dated November
4, 1997. (Ex. 4). It is unclear whether this constitutes a
"pleading" for purposes of asserting a lien. However, under the
case law, it is clear that T&F have a claim for fees as an
"equitable lien" that arises under the fee sharing agreements
entered into between T&F, CN&S, and the Rubenstein firm on
October 6, 1997 and November 3, 1997. (Exs. 60, 2). In addition,
if Roper-Simpson is found to have had an enforceable oral fee splitting agreement with Thomas and
Figeroux,*fn86 to which Louima consented, she would be
entitled to an equitable lien as well.
C. Termination of the Attorney Client Relationship
CN&S contend that T&F voluntarily withdrew from the
representation of the Louimas without cause, thereby forfeiting
any right to claim a share of the fees in this action.
(1) Standards for Termination or Withdrawal
Under New York law, it is well established that
"notwithstanding the terms of the agreement between them, a
client has an absolute right, at any time, with or without cause,
to terminate the attorney client relationship by discharging
the attorney." Campagnola v. Mulholland, Minion & Roe,
76 N.Y.2d 38, 43, 555 N.E.2d 611, 614, 556 N.Y.S.2d 239, 242 (1990);
see also Dagny Mgmt. Corp. v. Oppenheim & Meltzer, 199 A.D.2d 711,
712, 606 N.Y.S.2d 337, 338 (3d Dep't 1993); Schwartz v.
Jones, 58 Misc.2d 998, 999, 297 N.Y.S.2d 275, 276 (N.Y.Sup.Ct.
1969) (noting that "the client may discharge the attorney at any
time with or without cause, while the lawyer may withdraw only
for good reason"). When the client discharges her attorney
without cause, under New York law, the attorney is "entitled to
recover compensation from the party measured by the fair and
reasonable value of the services rendered, whether they be more
or less than the amount provided in the retainer agreement
executed by the party and his or her former attorney." Cohen v.
New York City Health & Hosp. Corp., 2001 WL 262764, at *2. See also Cheng v.
Modansky Leasing Co., Inc., 73 N.Y.2d at 457-58, 539 N.E.2d at
572, 541 N.Y.S.2d at 744.
However, if an attorney voluntarily withdraws from the case
without cause, the charging lien is subject to forfeiture. See
People v. Keeffe, 50 N.Y.2d at 156, 405 N.E.2d at 1015, 428
N.Y.S.2d at 449. The law is clear that when an attorney has been
retained in a legal matter, he "cannot abandon the service of his
client without justifiable cause, and reasonable notice." Tenney
v. Berger, 93 N.Y. 524, 529 (1883). If he abandons the client
prior to the termination of the proceeding "without just cause,"
the attorney forfeits the right to collect for services rendered.
Id. at 529. See also Allen v. Rivera,*fn87 125 A.D.2d 278,
280, 509 N.Y.S.2d 48, 50 (2d Dep't 1986) (noting "[i]f the
defendant's withdrawal as counsel was unjustifiable, then he
forfeited any right to recover damages for services rendered on
the basis of quantum meruit, and also forfeited any retaining
lien on the file").
Similarly, if an attorney is terminated for misconduct, the
charging lien is forfeited. People v. Keeffe, 50 N.Y.2d at 156,
405 N.E.2d at 1015, 428 N.Y.S.2d at 449; Dagny Mgmt. Corp. v.
Oppenheim & Meltzer, 199 A.D.2d at 712, 606 N.Y.S.2d at 338
(holding "`[w]here the discharge is for cause, [an] attorney has
no right to compensation or a retaining lien, notwithstanding a
specific retainer agreement'") (quoting Campagnola v.
Mulholland, Minion & Roe, 76 N.Y.2d at 44, 555 N.E.2d at 614,
556 N.Y.S.2d at 242); Williams v. Hertz Corp., 75 A.D.2d 766,
767, 427 N.Y.S.2d 825 (1st Dep't 1980) (holding that "an attorney who is discharged
for cause or misconduct has no right to the payment of fees").
Among other things, counsel's "interference with the client's
right to settle [can] constitute misconduct sufficient to . . .
warrant discharge for cause and forfeiture of its fee." Dagny
Mgmt. Corp. v. Oppenheimer & Meltzer, 199 A.D.2d at 713, 606
N.Y.S.2d at 339.*fn88 The burden rests with the client to
demonstrate that there was just cause to terminate the
attorney-client relationship. Casper v. Lew Lieberbaum & Co.,
Inc., 1999 WL 335334, at *6.
However, "attorneys who terminate the attorney-client
relationship for just cause continue to be entitled to enforce
their liens." Klein v. Eubank, 87 N.Y.2d at 462, 663 N.E.2d at
600, 640 N.Y.S.2d at 444; see also Kahn v. Kahn, 186 A.D.2d 719,
720, 588 N.Y.S.2d 658, 659 (2d Dep't 1992) (noting that
"[w]here an attorney's withdrawal from a case is justifiable, the
attorney is entitled to recover for services rendered on the
basis of quantum meruit"); Schwartz v. Jones, 58 Misc.2d at
999, 297 N.Y.S.2d at 276 (holding that "an attorney is entitled
to be paid when discharged without cause or he withdraws with
sufficient reason"). Even a disbarred lawyer has been held to be
entitled to fees for services rendered prior to the disbarment,
where the misconduct for which he was disbarred did not relate to
the case. See Schwartz v. Jones, 58 Misc.2d at 999, 297
N.Y.S.2d at 276 (citing Tiringer v. Grafenecker, 38 Misc.2d 29,
30, 239 N.Y.S.2d 567 (2d Dep't 1962)).
This is because "[a]ttorney-client relationships frequently end
because of personality conflicts, misunderstandings or
differences of opinion having nothing to do with any impropriety
by either the client or the lawyer." Klein v. Eubank, 87 N.Y.2d at 463, 663
N.E.2d at 601, 640 N.Y.S.2d at 445. Indeed, in some instances,
the attorney offers to withdraw "to avoid embarrassment, avert
further conflict, . . . or simply save the client from the
discomfort of having to fire the attorney," while in other cases,
the client asks his attorney to withdraw. Id. Where there is no
evidence of misconduct, no discharge for cause, and no
"abandonment" by the attorney, the New York Court of Appeals has
held that "[a] rule making the charging lien unavailable to
attorneys who voluntarily withdraw would introduce a strong
economic deterrent" to the amicable settlement of these fee
disputes and "rather than encouraging attorneys to bow out
graciously," the rule would provide an incentive to the attorney
to stay on in order to protect his right to fees. 87 N.Y.2d at
463-64, 663 N.E.2d at 601.
Under the Code of Professional Responsibility,*fn89 "a
lawyer may withdraw from representing a client if . . . [t]he
client . . . renders it unreasonably difficult for the lawyer to
carry out employment effectively." Disciplinary Rule ("D.R.") §
2-110(c)(1)(d), N.Y. Comp. Codes R. & Regs. tit. 22 §
1200.15.*fn90 See also Casper v. Lew Lieberbaum & Co.,
Inc., 1999 WL 335334, at *4. Where there is a history of
nonpayment by the client, see Galvano v. Galvano, 193 A.D.2d 779,
780, 598 N.Y.S.2d 268, 269 (2d Dep't 1993), or where the
client makes representation "unreasonably difficult," see
Bankers Trust Co. v. Hogan, 187 A.D.2d 305, 598 N.Y.S.2d 338,
339 (1st Dep't 1992), an order of withdrawal is appropriate. See Mars Productions, Inc. v. U.S.
Media Corp., 198 A.D.2d 175, 176, 603 N.Y.S.2d 487, 488 (1st
Dep't 1993). Thus, an attorney may properly withdraw from
representation if a client fails to communicate with the
attorney, see Furlow v. City of New York, No. 90 CV 3956,
1993 WL 88260, at *2 (S.D.N.Y. Mar. 22, 1993), or there is "an
irreconcilable conflict between [the] attorney and client."
Generale Bank, New York Branch v. Wassel, No. 91 CV 1768, 1992
WL 42168, at *1 (S.D.N.Y. Feb. 24, 1992); see also Casper v.
Lew Leiberbaum & Co., Inc., 1999 WL 335334, at *5; Hallmark
Capital Corp. v. The Red Rose Collection, Inc., No. 96 CV 2839,
1997 WL 661146, at *3 (S.D.N.Y. Oct. 21, 1997); Cosgrove v. Fed.
Home Loan Bank of New York, No. 90 CV 6455, 1995 WL 600565, at
*2 (S.D.N.Y. Oct. 12, 1995).
Irreconcilable differences between counsel and his client based
on the client's behavior, including "insults, lying, foul
language, accusations of unprofessional behavior, lack of
cooperation, and failure to communicate," have been found to
constitute a justifiable basis for terminating the
attorney-client relationship, where the relationship has "so
irretrievably broken down" that it cannot be repaired. Casper v.
Lew Lieberbaum & Co., Inc., 1999 WL 335334, at *2. See also
Itar-Tass Russian News Agency v. Russian Kurier, Inc., No. 95
CV 2144, 1999 WL 58680, at *2 (S.D.N.Y. Feb. 4, 1999) (holding
that a "breakdown in communication between [counsel and client]
plainly constitutes just cause for withdrawal").
Withdrawal under the rules is also permissible if the "client
renders it unreasonably difficult for the lawyer to carry out
employment effectively," by hiring new or additional counsel who
interferes with the strategies of the original attorney. Joseph
Brenner Assocs., Inc., v. Starmaker Entm't, Inc., 82 F.3d 55, 57
(2d Cir. 1996) (citing N.Y. Comp. Codes R. & Regs., tit. 22, §
1200.15(c)(1)(iv)) and finding withdrawal justified where the initial attorney perceived
new counsel's position to be that of a "`back-seat driver'"). In
Lasser v. Nassau Community College, the original attorney was
required by his client to get approval for all actions in the
case from another attorney. 91 A.D.2d 973, 974, 457 N.Y.S.2d 343
(2d Dep't 1983). The court found that "[s]uch a requirement . . .
was tantamount to being superseded by another attorney," and held
that the attorney's fee should be determined at the conclusion of
the litigation. Id. See also Goldman v. Rafel Estates,
Inc., 269 A.D. 647, 648-49, 58 N.Y.S.2d 168, 170-71 (1st Dep't
1945) (finding withdrawal justified where the client "manifested
a lack of confidence in [his attorney] by having another attorney
supersede him in related matters," and holding that withdrawal
under these circumstances did not amount to a forfeiture of his
Similarly, in Tenney v. Berger, the client retained counsel
in reference to the probate of the will of Cornelius Vanderbilt.
93 N.Y. at 526. Thereafter, the client, without consulting the
first attorney, hired another attorney and placed the first
attorney in a subordinate position to the newcomer. Id. at
530-31. The court noted first that:
The client would certainly have no right, against the
protest of the attorney, to introduce as counsel in
the case a person of bad character, or of much
inferior standing and learning one not capable of
giving discreet or able advice. It would humiliate an
attorney to sit down to the trial of a cause, and see
his case ruined by the mismanagement of counsel.
Id. at 530. The court continued by noting that since the
relationship between attorney and co-counsel is of "a delicate
and confidential nature," "professional etiquette" suggests that
the client should consult with the attorney so he can withdraw if
he does not wish to associate with new counsel. Id. Thus, if
new counsel or additional counsel interferes with an attorney's
litigation strategy, that may be a justified basis for
withdrawal. See Mars Productions, Inc. v. U.S. Media Corp.,
198 A.D.2d at 176, 603 N.Y.S.2d at 488 (citing Lasser v. Nassau Community College, 91
A.D.2d at 974, 475 N.Y.S.2d at 343).
CN&S contend that T&F forfeited their right to claim fees when
they withdrew from representing Louima and left the meeting of
lawyers on January 23, 1998, after telling Louima they "quit."
T&F contend that they were fired by Louima or at the very least
forced out in large measure by the actions of CN&S to discredit
T&F and to drive a wedge between T&F and Louima.
Although the parties dispute exactly what was said at the final
meeting of counsel on January 23, 1998, this Court, having
considered all the evidence credits the testimony of Louima that
he told T&F that he was giving them one last chance to listen to
his instructions and to stop speaking to the press without his
authorization. (L. Tr. at 39-40). Despite Mr. Neufeld's alleged
statement to the press that T&F were "discharged" (Ex. 17), this
Court credits the testimony of Mr. Scheck, Mr. Rubenstein, Mr.
Neufeld and Mr. Cochran that when Thomas and Figeroux left the
office that day after meeting privately with Louima, they
announced that they were quitting. (S. Tr. I at 102; R. Tr. at
53; N. Tr. I at 106; C. Tr. I at 230). Moreover, while
Roper-Simpson testified that Louima essentially forced T&F to
choose between resigning or being fired, she was also the only
witness to testify that the meeting was at Rubenstein's offices
rather than those of CN&S. This factor, in addition to her
conflicting testimony in other areas (see discussion infra at
139-44), leads this Court to discount her testimony in this
regard. In sum, this Court finds, based on the credible evidence,
that Louima did not fire T&F at that time but rather gave them
one more chance to conform their behavior to his desire that all discussions with the press be cleared through him first.
T&F contend, however, that even if they said they were
"quitting," they were in reality forced off the case by CN&S'
efforts to alienate them from Louima. T&F argue that Louima's
belief that they were the source of the leak of the retraction of
the Guiliani time statement was not only unjustified but was
fostered by CN&S in an effort to have T&F removed from the case.
T&F not only deny that Figeroux was the source of the January 20,
1998 Village Voice article that precipitated the January 23rd
meeting, but they also argue that the article itself provides no
basis to believe that Figeroux spoke to the press about this
issue at that time. Specifically, the article describes its
source of information regarding Louima's retraction of the
Giuliani time statement as a "federal investigator" (Ex. 53 at
1-2), and, according to T&F, the statement attributed to Figeroux
reflects his knowledge of the incident as of August 1997 at a
time when he was "freely" communicating with the press and before
Scheck's investigation had revealed that the Giuliani time
statement originated not from Louima but from his brother, Jonas.
(T&F Post-Tr. Br. at 32-33). T&F assert that CN&S deliberately
misread the article and encouraged Louima to believe that the
information was leaked by Figeroux in violation of Louima's
explicit instructions. (Id.)
Apart from the fact that there is no evidence in the record to
suggest that CN&S were responsible for the conclusion reached by
Louima, it is not necessary for this Court to determine whether
or not Figeroux was the source of the leaks to the press
regarding Louima's retraction of the Giuliani time statement.
Certainly, Louima had warned the lawyers many times long before
the press reports in November, December and January that they
were to clear press statements with him first. There was
sufficient evidence for a reasonable person in Louima's position
to conclude that T&F may have been responsible for leaking the story about the retraction
of the Giuliani time remark. Not only did both Thomas and
Figeroux have a previous relationship with Peter Noel (see F.
Tr. I at 219; Thomas Tr. at 77), but Figeroux had previously
spoken to him extensively (F. Tr. I at 219), and there were
references to both their names in numerous articles as sources of
what were clearly protected client secrets. (See, e.g., Exs.
27, 30). Indeed, Ms. Palmer believed that T&F were the source of
the leak as to the retraction of the Giuliani time statement. (P.
Tr. at 30).
More important, however, while the prior leaks by T&F, coupled
with their refusal to abide by Louima's press instructions and
cooperate with co-counsel in pursuing the Louimas' case, would
have warranted a discharge for cause, this Court finds that
Louima did not fire them on January 23, 1998. Despite the
continued leaks to the press and Louima's suspicion that T&F were
responsible for those leaks, Louima nevertheless gave T&F one
more chance to act in accordance with his instructions and remain
as counsel in the case. Instead, T&F rejected those conditions
and withdrew from further representation of the Louimas. This
does not end this Court's inquiry, however. While CN&S contend
that T&F withdrew without cause, essentially abandoning their
client, T&F contend, on the other hand, that their withdrawal was
justified by CN&S' other conduct and that, in essence, they were
Among other things, T&F contend that CN&S deliberately
alienated Louima from T&F by criticizing T&F not only with
respect to the press leaks but on other grounds as well. In
support of this claim, T&F contend that CN&S undermined their
relationship with Louima by criticizing the adequacy of the
monetary demand in the original Notice of Claim filed prior to
CN&S' entry into the case. (F. Tr. III at 18; R.S. Tr. I at
144-45; but cf. N. Tr. I at 62; C. Tr. 28-31). However, the
original Notice of Claim was signed only by Rubenstein. (Ex. 3). T&F did not sign
the first Notice, only the second. (Ex. 4). Moreover, there is no
evidence to support the claim that CN&S advocated for a higher
amount or criticized T&F to Louima regarding the amount of the
claim. Although Roper-Simpson testified that Cochran complained
about the amount, she thought he "was sort of putting down Mr.
Rubenstein" (R.S. Tr. I at 144-45), and Rubenstein testified that
he was in fact in favor of increasing the amount. (R. Tr. at 70).
In any case, whatever criticism there may have been regarding the
amounts requested in the Notices of Claim, the Amended Notice of
Claim was filed on November 4, 1997, more than two months prior
to T&F's withdrawal and clearly was not a precipitating factor
that led to their resignation.
T&F also point to Neufeld's testimony that he had formed a
negative impression of T&F even prior to signing the fee
splitting agreement in November 1997, and that he "may" have
shared that opinion with other members of the bar. (N. Tr. II at
156-57). Neufeld further testified that he may have shared these
views with Louima on occasions where T&F were not present. (N.
Tr. II at 264-65). Apart from this possible statement by Neufeld,
which he may or may not have shared with Louima, T&F can point to
no other examples of negative statements by any of the CN&S
attorneys to Louima or anyone else about T&F. By contrast, the
testimony is replete with examples of negative and even
anti-Semitic comments made by T&F about CN&S and the Rubenstein
firm. (See, e.g., S. Tr. I at 34-35; L. Tr. at 28-30; C. Tr. I
at 204; R.S. Tr. III at 30-32; Ex. 84).
Finally, T&F cite Scheck's investigation of the origin of the
Giuliani time statement, arguing that CN&S attempted to place the
blame on Figeroux for this statement, further alienating Louima
from T&F. However, the testimony before this Court revealed no
evidence that Scheck's investigation was biased in any way. Contrary to T&F's claims, this Court finds
that Scheck conducted his investigation in a restrained and
careful fashion; Scheck was not biased as T&F attempt to assert.
In the first place, the Scheck investigation was instigated by
the government based on Louima's voluntary revelation that the
statement was never made by his abusers. Ms. Palmer testified
that when she asked Scheck to conduct the investigation, she did
not want T&F informed. (P. Tr. at 42). Moreover, apart from Ms.
Palmer's views, there was clearly a reason to suspect that
Figeroux was involved with the creation of the Giuliani time
statement since he was the first person to repeat it publicly.
Nevertheless, rather than immediately accusing Figeroux, Scheck
interviewed other potential sources first, finally determining
that the Laurents were the source and that Figeroux's involvement
was limited to a failure to verify the accuracy of the statement
with his client before disseminating it to the press. In this
regard, CN&S and the government were justified in being critical
of Figeroux's actions.
Roper-Simpson also appears to contend that another reason T&F
felt forced to withdraw was CN&S' release of information to the
press blaming Figeroux for inventing the Guiliani time statement.
Although she could not be specific as to the date,*fn91
Roper-Simpson described a meeting which she attended in
Rubenstein's office where she, Figeroux, Cochran, Neufeld,
Scheck, Rubenstein and Rynecki were present; Louima was in the
room next door at the time. (R.S. Tr. I at 89-90). At this
meeting, Roper-Simpson claims that Scheck was "blaming [Figeroux]
for the Guiliani time statement." (Id. at 89). Cochran
allegedly told the lawyers that according to Louima, Figeroux had
told Louima the Guiliani time statement, to which Roper-Simpson responded and
told the lawyers: "Mr. Louima is a liar. It didn't happen that
way. And honestly, he is a piece of s____ [referring to Louima]."
(Id. at 90, 93). According to Roper-Simpson, the next day, she
received a phone call from Thomas, informing her that 1010 WINS
was reporting that Figeroux was being accused of coming up with
the Guiliani time statement. (Id. at 90-92, 151-154; R.S. Tr.
III at 159-160). However, later in her testimony, Roper-Simpson
changed her account, stating that she heard this report on the
radio after The Village Voice article dated January 20, 1998
was released. (R.S. Tr. I at 154; Ex. 53). Apart from the absence
of any evidence to corroborate Roper-Simpson's claims regarding
the 1010 WINS report, none of the printed articles blame Figeroux
for making up the phrase, nor do any of these articles attribute
any such accusations to CN&S. (Exs. 35, 36, 53).
Given the lack of any evidence to corroborate Roper-Simpson's
claim about the alleged 1010 WINS report, the Court finds no
basis to believe that CN&S leaked information to the press
blaming Figeroux for the Guiliani time statement, and thus this
alleged misconduct on the part of CN&S would not justify T&F's
withdrawal from the case.*fn92
Having thoroughly examined the record, this Court does not find
any credible evidence to support T&F's claim that CN&S were
engaged in a concerted effort to alienate Louima from T&F.
Although T&F could perhaps argue that their withdrawal was
justified by Louima's decision to hire CN&S as new counsel, and
T&F's sense that they were being superseded by these new
attorneys, see Joseph Brenner Assocs., Inc. v. Starmaker
Entertainment, Inc., 82 F.3d at 57; Goldman v. Rafel Estates, Inc., 26 A.D. at 648-49, 58 N.Y.S.2d at 170-71, here
they entered into a fee sharing agreement with the new attorneys,
agreed that Thomas would be the "lead" attorney for purposes of
public perception, and acquiesced in the relationship, working
with the new attorneys for more than four months before
withdrawing from the case. Moreover, apart from CN&S' failure to
inform and include T&F in the Tacopina meetings,*fn93 there
is no credible evidence to suggest that CN&S interfered with
T&F's strategies on how to litigate the case. See Joseph
Brenner Assocs., Inc. v. Starmaker Entertainment, Inc., 82 F.3d
at 57. Rather, the evidence clearly demonstrates that it was
Louima who interfered with T&F's strategy to litigate the case in
the press, instituting a requirement that T&F clear press
statements with him. This Court further finds, based on Ms.
Palmer's testimony and the testimony of Mr. Neufeld and Mr.
Scheck, which this Court credits, that the CN&S lawyers made an
effort, despite the overt hostility shown by T&F, to forge a
working relationship that would benefit the Louimas. Neufeld
clearly made an effort to consult with T&F regarding Louima's
treatment, the hiring of experts, the retention of the Walker
Investigative Agency and various contacts with organizations that
might provide assistance to the pattern and practice
investigation. Similarly, Figeroux originally participated with
Scheck in representing Louima in the course of Louima's dealings
with the government and worked with Scheck and on his own in
dealing with the various witnesses who were friends and family
members of the Louimas.
At some point along the way, however, there was clearly a
breakdown in the relationship. Figeroux stopped attending the debriefing sessions with the
government, and the hostility felt by T&F toward the other
lawyers, which was so evident during the meeting at which the
lap-top incident occurred, began to be discussed in the press.
(See, e.g., Exs. 27, 30). The increasing deterioration of the
relationship between counsel culminated in the investigation by
Scheck of the origin of the Giuliani time statement.
There is no question that, by January 23, 1998, the
relationship between T&F and Louima and the other attorneys had
"so irretrievably broken down" that it was impossible for CN&S
and T&F to work together as a cohesive team. Casper v. Lew
Liberbaum & Co., 1999 WL 335334, at *2. While, as the Court of
Appeals stated in Klein v. Eubank, "personality conflicts,
misunderstandings, [and] differences of opinion," may sometimes
justify an attorney's withdrawal, 87 N.Y.2d at 463, 663 N.E.2d at
601, 640 N.Y.S.2d at 445, here the conflict was almost entirely
attributable to the conduct of T&F. In addition to repeatedly
leaking information to the press, including comments highly
critical of Louima's family (see, e.g., Exs. 27, 30), Thomas
and Figeroux had increasingly refused to cooperate with CN&S,
thereby impeding the progress of Louima's lawsuit. T&F's attitude
toward their co-counsel was exemplified by their conduct during
the "laptop incident," when they were overtly hostile toward the
other attorneys. T&F's conduct at this meeting was indicative of
their behavior from the beginning of their joint representation
Therefore, while by January 23, 1998 the relationship between
T&F and CN&S had soured, and T&F had lost the trust of their
client, these circumstances had been caused in large measure by
T&F's conduct. Thus, T&F cannot rely on the poor state of their
relationship with co-counsel to justify their departure. Good
cause to terminate the attorney-client relationship cannot be
provided by the misconduct of the attorney. While Louima would have had good
cause to terminate T&F on January 23, 1998, their withdrawal in
advance of termination does not salvage their right to
compensation. Therefore, this Court respectfully recommends that
T&F be denied any share of fees in this litigation.
However, if the district court disagrees with this Court's
finding that T&F withdrew from further representation of the
Louimas, or that such withdrawal was without good cause, then, as
set forth below, T&F would be entitled to an award of fees. In
order to assist the district court in its analysis, this Court
will set forth, in the alternative, the basis for and amount of
such an award.
D. Misconduct by T&F
In addition to arguing that T&F are not entitled to share in
the legal fees due to their withdrawal without cause, CN&S also
contend that T&F forfeited any right to fees because they
violated the rule of client confidentiality as set forth in D.R.
4-101, by disseminating client confidences and secrets both
before and after they ceased their representation of the Louimas.
(CN&S Post-Tr. Br. at 113-114).
In response, T&F and Roper-Simpson contend first that CN&S have
no standing to raise the issue of T&F's alleged breach of the
Disciplinary Rules. Citing the Restatement (Third) Law Governing
Lawyers § 6, T&F argue that "[t]actical deployment of the
disciplinary rules . . . is highly disfavored," and the fact that
a disciplinary rule may provide a basis for sanctions against an
attorney "`does not imply that an antagonist in a collateral
proceeding or transaction has standing to seek enforcement of the
Rule.'" (T&F Mem. at 53 (quoting Restatement (Third) Law
Governing Lawyers § 6)). Therefore, T&F contend that CN&S have no standing to seek a reduction in
fees based on purported breaches of the ethical duties owed by
T&F to Louima. (T&F Post-Tr. Br. at 55).
None of the parties have identified any case law directly on
point dealing with a fee dispute between attorneys who are
signatories to a fee-splitting contingency fee agreement where
one attorney is accused of ethical violations. The cases cited by
T&F for the proposition that only the client has a right to
assert a claim based on an alleged violation of the disciplinary
rules are inapposite. See, e.g., Itar-Tass Russian News Agency
v. Russian Kurier, Inc., 1999 WL 58680, at *9 (holding that
co-plaintiffs who are not liable for attorneys' fees could not
move for sanctions against plaintiff's counsel for a violation of
the Disciplinary Rule governing fee splitting since co-plaintiff
had not been damaged by the fee splitting arrangement); Heard v.
Bonneville Billing & Collections, 216 F.3d 1087 (table) (10th
Cir. 2000) (holding that plaintiff lacked standing to challenge a
fee splitting arrangement between defendant and defendant's
counsel); Pepe & Hazard v. Jones, 33 Conn. L. Rptr. 72, 77
(Conn. Super. Ct. 2002) (excluding testimony of legal ethics
expert in dispute between former law partners).
None of these cases deal with a dispute such as the one here,
where the Louimas executed a retainer agreement dated November 3,
1997 with all of the attorneys,*fn94 providing that the
various attorneys would be entitled to share a one-third legal
fee resulting from the joint efforts of all the attorneys. (Ex.
2). In this agreement, the clients agreed to joint representation
by the attorneys, and agreed to a contingency fee of one-third to
be divided equally between the firms of CN&S, Rubenstein &
Rynecki, and T&F. (Id.)
Under the Disciplinary Rules, the division of the one-third fee
portion is expressly left to the attorneys to decide. See D.R. 2-107(A)(1), N.Y. Comp. Codes R.
& Regs., tit. 22 § 1200.12 (requiring only that the client be
informed and "consent to the employment of the other lawyer
after a full disclosure that a division of fees will be made");
see also Carter v. Katz, Shandell, Katz & Erasmous,
120 Misc.2d 1009, 1018, 605 N.Y.S.2d 991, 997 (N.Y.Sup.Ct. 1983)
(holding that "[a] client is simply to be made aware that another
attorney is . . . representing her. . . . Any further elaboration
or specificity regarding the exact arrangement between the
collaborating attorneys is not ethically mandated by [D.R.
Clearly, the Louimas could easily file an application with this
Court seeking to have T&F's share of the fees forfeited based on
the very same breaches of the Disciplinary Rules that were
examined in this fee proceeding. In this case, CN&S and the
Rubenstein firm essentially stand in the shoes of the Louimas in
asserting that T&F's violations of their ethical obligations to
their clients were sufficiently egregious to warrant forfeiture
of T&F's right to a share of the fees. To hold otherwise would
mean that an attorney who agrees to split a contingency fee with
another attorney could blatantly commit untold breaches of the
ethical rules to the detriment of the client or withdraw without
cause and rest on his laurels while the remaining attorney labors
successfully on behalf of the client. If the remaining attorney
had no standing to raise these issues of breach in the context of
a fee sharing agreement, he would have no recourse to object when
the breaching attorney demanded his equal share of the fee. While
T&F is correct that, in the absence of the fee splitting
agreement among counsel, any fees forfeited by T&F would be
returned to the client, here T&F's violations do not vitiate the
agreement that the Louimas have with their other counsel.
Collectively, the attorneys are still entitled to receive
one-third of the total settlement, and any portion of the fees
forfeited by T&F would still be considered to be part of the fee amount to be divided
among the remaining counsel. Thus, based on the equities, and the
absence of any authority to the contrary, this Court concludes
that CN&S have standing to raise alleged ethical breaches by T&F
that would otherwise be asserted by the Louimas in the absence of
the fee-sharing agreement. (See, e.g. Ex. 2; see also Ex.
(2) Confidences and Secrets
It is well established that "the role of a lawyer vis a vis the
interests of his client is categorized as that of fiduciary
trustee." Condren v. Grace, 783 F. Supp. 178, 182 (S.D.N.Y.
1992) (citing Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384,
1386 (2d Cir. 1976)). See also Hafter v. Farkas,
498 F.2d 587, 589 (2d Cir. 1974). This relationship of trust requires an
attorney "to exercise the highest degree of good faith, honesty,
integrity, fairness and fidelity," Condren v. Grace,
783 F. Supp. at 182, and "precludes the attorney from having personal
interests antagonistic to those of his client." Id.
D.R. 4-101(B) provides that a lawyer shall not reveal a
"confidence" or "secret" of a client, or use a confidence or
secret of his client to the disadvantage of the client or to
provide an advantage to himself, except under certain limited
circumstances. D.R. 4-101(B), N.Y. Comp. Codes R. & Regs., tit.
22 § 1200.19. D.R. 4-101(A) defines "`[c]onfidence' [as]
information protected by the attorney-client privilege under
applicable law, and `secret' refers to other information gained
in the professional relationship that the client has requested be
held inviolate or the disclosure of which would be embarrassing
or would likely to be detrimental to the client." D.R. 4-101(A),
N.Y. Comp. Codes R. & Regs., tit. 22 § 1200.19. As one court
noted: "The confidentiality rule applies not merely to matters
communicated in confidence by the client but also to all
information relating to the representation, whatever its source. A lawyer may not disclose such information
except as authorized or required by the Rules of Professional
Conduct or other law." First Fed. Savings & Loan Ass'n of
Pittsburgh v. Oppenheim, Appel, Dixon & Co., 110 F.R.D. 557, 564
n. 12 (S.D.N.Y. 1986).
It is clear that a lawyer "should not use information acquired
in the course of the representation of a client to the
disadvantage of the client" nor should the lawyer use such
information for his own purposes "except with the consent of his
client after full disclosure." Ethical Consideration ("E.C.")
4-5. Moreover, there is a related Disciplinary Rule which
prohibits an attorney in a civil matter from "mak[ing] an
extrajudicial statement that a reasonable person would expect to
be disseminated by means of public communication if the lawyer
knows or reasonably should know that it will have a substantial
likelihood of materially prejudicing an adjudicative proceeding
in that matter." D.R. 7-107(A), N.Y. Comp. Codes R. & Regs., tit.
22 § 1200.38.
This obligation to protect a client's confidences and secrets
continues even after the attorney-client relationship has
terminated. See E.C. 4-6. "Attorneys owe continuing duties of
both confidentiality and loyalty to their former clients. . . .
[and] [t]he Code of Professional Responsibility imposes a
continuing obligation on attorneys to protect their clients'
confidences and secrets." Brown & Williamson v. Chesley, No. 01
CV 117050, 2002 WL 31940719, at *1 (N.Y.Sup.Ct. Dec. 18, 2002)
(citation omitted). D.R. 2-110(A)(2) provides that where
withdrawal from representation is permitted, a lawyer must take
all reasonably foreseeable steps to prevent post-withdrawal
prejudice to the client. D.R. 2-110(A)(2), N.Y. Comp. Codes R. &
Regs., tit. 22 § 1200.15. Thus, even after the representation of
a client has ceased, an attorney may not reveal information
confided by the former client to the client's disadvantage.
Brown & Williamson v. Chesley, 2002 WL 31940719, at *1. CN&S contend that T&F made numerous public disclosures of
secrets and confidences of Louima without his approval and
contrary to his express orders, in violation of these
Disciplinary Rules. As a consequence, CN&S argue that T&F have
forfeited their right to any fees in this action.
(a) The Disclosures of Client Secrets
T&F argue that there is no evidence that there were any
disclosures of Louima secrets that violated Louima's
instructions, either prior to January 1998 or during the events
immediately prior to the cessation of T&F's representation. T&F
further argue that to the extent Thomas or Figeroux made
statements after the attorney-client relationship ended, those
disclosures were permitted by DR 4-101(C)(4).
Based on the newspaper articles offered into evidence by CN&S,
this Court finds there are numerous instances in which either
Thomas or Figeroux is quoted relating information about the case
that constitutes client secrets. These disclosures were not
authorized by Louima. Indeed, it is clear that Louima instructed
the attorneys early on not to speak to the media without his
approval. (C. Tr. I. at 197; L. Tr. at 26-28). Moreover, Figeroux
conceded that T&F was "talking to the media throughout," without
specific permission from Louima. (F. Tr. I at 197).
Perhaps the quintessential example of a press communication in
violation of an attorney's ethical obligations under D.R.
4-101(B) was Figeroux's statements to Ms. Brenner which appear in
the December 1997 issue of Vanity Fair. Based on the testimony
before this Court, this Court finds that these statements were
made at a time when Louima had made it clear that all press
contacts must be cleared through him. Indeed, Figeroux conceded
that he did not have permission to speak to the press in connection with his Vanity Fair interview. (F. Tr. I at
197). It also cannot be disputed that many of the things revealed
in the article qualify as client secrets. Figeroux, when
questioned about this article, conceded as much. While Figeroux
did not deny making these statements he simply could not recall
if he made them (id. at 206-10), there is no possible
justification for some of the things he said, including calling
the Louima family "diseased" and telling the reporter that "`[i]t
is all about money where this family is concerned.'" (Ex. 27).
Not only are these disclosures a blatant violation of D.R.
4-101(B), but they are also a violation of D.R. 7-107(A) in that
they are extrajudicial statements made publicly and to the press
that had a substantial likelihood of prejudicing the criminal
proceedings. These statements raised questions about Louima's
motives and, consequently, created credibility problems for
With respect to the press statements made by T&F after they
ceased to represent Louima, the majority of these statements were
purportedly made by Thomas, including comments that Louima's case
was being handled "`as a case about money'" (F. Tr. II at 21; Ex.
16), his statement that Cochran "`has a significant amount of
baggage'" and suffers from the perception that he is "`in some
ways dishonest'" (Ex. 17), and Thomas' "fear that Cochran's
team will not take the high road." (F. Tr. II at 42; Ex. 31).
Perhaps most disturbing is the quote by Thomas that T&F resigned
because "Neufeld was behind an attempt to prevent [T&F] from
condemning `unethical behavior' by the O.J. Simpson `dream
team[,]'" thereby suggesting that unethical behavior by CN&S had
in fact occurred. (Ex. 19).
Although Figeroux claimed to have had no knowledge of what
Thomas was saying to the press (F. Tr. II at 6, 36), and Thomas
unfortunately is deceased and therefore unable to deny making
these statements, it is undisputed that no retraction of these or
any other statements attributed to either Thomas or Figeroux ever appeared in print. Nor do T&F assert that
these statements were authorized by Louima. Clearly, these
statements fall within the prohibition embodied in the
Disciplinary Rules. In fact, even Mr. Figeroux conceded that
these statements constituted protected client secrets. (F. Tr. II
at 18-19, 21-22, 25, 27, 40-47).
(b) Justifications for Disclosures
In arguing that the disclosures in this case were warranted,
T&F rely on D.R. 4-101(C)(4), which authorizes an attorney to
reveal "[c]onfidences or secrets necessary to establish or
collect the lawyer's fee or to defend the lawyer . . . against an
accusation of wrongful conduct." D.R. 4-101(C)(4), N.Y. Comp.
Codes R. & Regs., tit. 22 § 1200.19. This Rule recognizes the
principle, long accepted by the common law, that a lawyer has the
right to disregard the privilege of a current or former client
and to disclose otherwise protected confidences when suing the
client to collect a fee. See Nakasian v. Incontrade, Inc.,
409 F. Supp. 1220, 1224 (S.D.N.Y. 1976). The rationale behind
justifying the invasion of the privilege was that "it would be a
`manifest injustice' to `permit  a client to use the privilege
to his attorney's disadvantage.'" First Fed. Savings & Loan of
Pittsburgh v. Oppenheim, Appel, Dixon & Co., 110 F.R.D. at 561
(quoting Levine, Self-Interest or Self-Defense: Lawyer Disregard
of the Attorney-Client Privilege for Profit & Protection, 5
Hofstra L. Rev. 783, 793 (1977)).
The other situation in which disclosure has traditionally been
justified is when the attorney is called upon to defend himself
in a suit for malpractice, see, e.g., Finger Lakes Plumbing &
Heating, Inc., v. O'Dell, 101 A.D.2d 1008, 476 N.Y.S.2d 670, 671
(4th Dep't 1984), or where his competence is challenged by his client as in a claim of
ineffective assistance of counsel by a convicted criminal
defendant. See, e.g., United States ex rel Richardson v.
McMann, 408 F.2d 48, 53-54 (2d Cir. 1969), vac. on other
grounds, 397 U.S. 759 (1970). The rationale behind allowing
disclosure in this type of a factual dispute between a client and
his attorney is that "[t]o the extent that the client initiates
the dispute, he can be said to have put in issue his
communication with his attorney and thus waived his right to the
protection of the privilege." First Fed. Savings & Loan Ass'n.
of Pittsburgh v. Oppenheim, Appel, Dixon & Co., 110 F.R.D. at
561 (citing cases); see also Meyerhofer v. Empire Fire &
Marine Ins. Co., 497 F.2d 1190, 1194-95 (2d Cir.), cert.
denied, 419 U.S. 998 (1974) (finding that attorney had right to
disclose client confidences to defend himself in civil suit).
Disciplinary Rule 4-101(C)(4) is broader than the common law in
that it deals not only with confidential attorney client
communications but secrets as well. D.R. 4-101(C)(4), N.Y. Comp.
Codes R. & Regs., tit. 22 § 1200.19; see also First Fed.
Savings & Loan Ass'n of Pittsburgh v. Oppenheim, Appel, Dixon &
Co., 110 F.R.D. at 563. Under the Rule, courts have held that
even where an attorney's conduct is not directly challenged by
his client, that attorney may disclose privileged information if
necessary to defend himself against criminal charges, see,
e.g., United States v. Amrep Corp., 418 F. Supp. 473, 474
(S.D.N.Y. 1976) (permitting disclosure where attorney is
defendant); Application of Friend, 411 F. Supp. 776, 777
(S.D.N.Y. 1975) (permitting attorney to produce privileged
documents to grand jury), or in the context of a civil proceeding
where the attorney is being sued by someone other than his
client. See, e.g., Rosen v. Nat'l Labor Relations Bd.,
735 F.2d 564, 576 (D.C. Cir. 1984); Meyerhofer v. Empire Fire &
Marine Ins. Co., 497 F.2d at 1194-95.
In Meyerhofer v. Empire Fire & Marine Insurance Co., the
attorney, who had represented an insurance company in a public offering, was named as a defendant
in a securities fraud class action. 497 F.2d at 1192-93. To
demonstrate his innocence in the alleged fraudulent conduct, the
attorney provided an affidavit to plaintiffs' counsel disclosing
certain client secrets and confidences which led plaintiffs to
drop their claims against the attorney. 497 F.2d at 1194-96. The
Second Circuit, in concluding that the attorney's disclosures
were justified under the circumstances, stated:
The charge, of knowing participation in the filing of
a false and misleading registration statement, was a
serious one. The complaint alleged violation of
criminal statutes and civil liability computable at
over four million dollars. . . . Under these
circumstances [the attorney] had the right to make an
appropriate disclosure with respect to his role in
the public offering.
Id. The Court of Appeals, however, affirmed the lower court's
order barring the attorney from disclosing any "material
information" relating to his role in the transaction except at
trial or during the course of discovery in the case. Id. at
In First Fed. Savings & Loan of Pittsburgh v. Oppenheim,
Appel, Dixon & Co., the court was asked to resolve the propriety
of disclosures by the former general counsel of Comark, a
securities dealer, in a suit brought by customers of Comark
against Oppenheim, Appel, Dixon & Co., Comark's former auditors.
110 F.R.D. at 558-59. In considering whether an attorney who is
named as a third party defendant in a civil proceeding has the
right to invoke the "self defense" exception to the rule even
when not sued by his own client, the court expressly recognized
three reasons for an exception to the privilege under such
circumstances, but made it clear that certain "procedural and
substantive [limitations] . . . must be placed on its
invocation." 110 F.R.D. at 566. First, if an attorney is sued for alleged misconduct
in representing a client, it is self-evident that he
has a compelling interest in being able to defend
himself. Second, that interest may well outweigh the
interest of the client in maintaining the
confidentiality of his communications, particularly
if disclosure of those communications will not
imperil the legal interests of the client. . . .
Third, such disclosure will serve the truth finding
function of the litigation process, and is thus
consistent with the general principle of narrowly
construing evidentiary privileges.
Id. at 565.
(c) T&F's Disclosures to the Press Were Not Warranted
With respect to the press statements made prior to January
1998, T&F contend that these statements were made prior to the
time that Louima had issued his instructions to clear all
statements with him, and thus "cannot be relied upon to establish
a violation of the duty to maintain client secrets." (T&F
Post-Tr. Br. at 59). T&F specifically refer to the December 1997
Vanity Fair article, which T&F contend contains only statements
made by them "`the Friday before Labor Day'" or "August 29,"
prior to Louima's first press instruction, which they assert
occurred "in or after September 1997." (Id. at 59, n. 30). In
addition, T&F contend that none of the press statements made
prior to January 1998 divulged protected client secrets.
While this Court does not agree that Louima's first press
instruction was not given until September 1997, in any event, T&F
had an independent obligation to preserve their client's
confidences and secrets even in the absence of any instruction
from Louima. D.R. 4-101(C) does not require the client to request
confidentiality as a prerequisite for the application of the
Rule. The obligation to maintain a client's confidences and
secrets is imposed automatically, and while it can be waived by the client, this Court finds that no such waiver
occurred here. Indeed, T&F's disclosures prior to January 1998,
which included statements denigrating Louima's family (see Ex.
27), violated T&F's obligation to maintain client
T&F attempt to justify their public statements made after
January 1998 by claiming that they were "made to explain the
firm's departure from the case, and defend [the attorneys]
against the public charge that [they] had been fired because of
Figeroux's complicity in inventing the `Giuliani time' remark."
(T&F Post-Tr. Br. at 61). T&F further contend in their Memorandum
of Law that an accusation of misconduct need not be made in the
form of a lawsuit or disciplinary proceeding in order to justify
a response under subdivision (C)(4) of D.R. 4-101. (T&F Post-Tr.
Br. at 62).
The cases cited by T&F, however, prove the opposite and clearly
establish that the Disciplinary Rules do not permit an attorney
to reveal client secrets to the press in the absence of a
disciplinary action, or fee litigation, government investigation,
or civil suit in which the attorney could reasonably be called
upon to defend himself from charges of misconduct. See First
Fed. Savings & Loan Ass'n of Pittsburgh v. Oppenheim, Appel,
Dixon & Co., 110 F.R.D. 559 (attorney named as third party
defendant in civil suit); General Realty Assoc's. v. Walters,
136 Misc.2d 1027, 1029, 519 N.Y.S.2d 530, 532 (N.Y. Civ. Ct.
1987) (allowing attorney to testify as to communication with
former client to impeach client's testimony regarding that
communication).*fn95 Indeed, even when such charges or
claims are pending, the press is not the appropriate forum in which an
attorney may defend himself. Mere press reports regarding an
attorney's conduct do not justify disclosure of a client's
confidences and secrets even if the reports are false and the
accusations are unfounded.
In an exhaustive review of the caselaw, Magistrate Judge
Dolinger, in the First Federal case, explored the various
circumstances in which disclosures by attorneys have been found
to be warranted. He found that D.R. 4-101 "appears to encompass
disclosure when the attorney is being sued by someone other than
the client or, indeed, when an `accusation' of misconduct has
been leveled against the attorney, even if a suit has not been
filed." 110 F.R.D. at 562. However, this broad language, relied
on by T&F, is purely dicta and nothing in the opinion suggests
that an accusation in the press made by someone other than the
client would justify disclosure. Indeed, in First Federal, the
attorney was named as a third party defendant in a civil suit.
None of the cases analyzed by Judge Dolinger support T&F's
position that attorneys may divulge client secrets to respond to
perceived attacks in private or in the press.
In summary, no authority has been cited to this Court, nor
could any authority be found, which justifies the public comments
of T&F in this case. First, at the time the statements were made,
there was no fee proceeding pending in which T&F would have
needed to or been authorized to make disclosures. Indeed, at the
time some of the statements were made, the Louimas' civil
complaint had not even been filed and there was certainly no
settlement at that time from which T&F could arguably have made a
claim for fees. Thus, there is no justification for T&F's press
leaks under the provision of D.R. 4-101(C)(4) that allows disclosure of client confidences and
secrets in a fee proceeding.
T&F contend that their statements in the press were defensive
and argue that their disclosure of client secrets were necessary
because neither CN&S, Louima or Louima's family "ever retract[ed]
the false charge that [T&F] had been fired due to Figeroux's
guilt in inventing the `Giuliani time' comment." (T&F Post-Tr.
Br. at 62).*fn96 Apart from the fact that there is no
evidence that such an accusation was ever made by CN&S or Louima,
at the time that T&F made statements to the press, there was no
pending proceeding, judicial or otherwise, in which T&F would
have been required to defend themselves nor was any such
proceeding contemplated. Indeed, there was never a formal
allegation of attorney misconduct by the client in this case.
Of all of the articles addressed by T&F in their papers, none
of them directly quotes either Louima or the CN&S lawyers as
blaming Figeroux for the Giuliani time statement, nor is there
any specific statement from Louima or CN&S criticizing T&F in any
manner that would justify a response in violation of T&F's
ethical obligation to maintain Louima's confidences and secrets.
The first series of articles attribute statements to Thomas about
the differences among counsel and indeed, Thomas raised the issue
of the Giuliani time statement as early as January 28, 1998
without any apparent provocation from CN&S or Louima. (Ex. 18).
The only article in which one of the CN&S lawyers is directly quoted simply quotes Neufeld as saying that T&F had been
"discharged," a statement he now vehemently denies. (N. Tr. I at
113-14). Again, were this statement made in the context of a fee
hearing or other proceeding asserting misconduct, T&F might have
had the right to a limited reply.*fn97 In this context,
however, where there was no fee proceeding pending and no
litigation in which T&F were called to defend themselves, their
comments to the press were utterly unjustified and a blatant
violation of their ethical obligations.*fn98 The fact that
the press may have been speculating as to Figeroux's role in the
Giuliani time statement*fn99 does not constitute the type of
accusations contemplated by the Disciplinary Rules that warrant
disclosures of client secrets.
Neither do any statements allegedly made by members of Louima's
family warrant disclosure of client secrets. Although the Daily
News article of January 28, 1998 quotes Samuel Nicolas as saying
that Figeroux's use of the Giuliani time statement "`did raise
some concerns'" (Ex. 14), clearly the Disciplinary Rules provide
no exception to the requirement that confidences and secrets must
be maintained when a client's family criticizes a lawyer outside
of a judicial proceeding.*fn100 Similarly, the January 28, 1998 New York Times article, which quotes an
anonymous source on the discord between T&F and CN&S and states
that the other attorneys had "lost confidence" in T&F (Ex. 13),
does not justify T&F's reckless statements. Indeed, no reasonable
interpretation of D.R. 4-101(C)(4) would allow an attorney to
disclose client confidences and secrets to the press under any
circumstances, much less those present in this case.
Thus, the only remaining question is whether T&F, by their
conduct, should forfeit all or any portion of their fees as a
consequence of these ethical violations. T&F contend that, even
if an attorney breaches his ethical obligations, courts have held
that the attorney does not necessarily forfeit the fees that he
earned for services already rendered.
(3) Forfeiture of Fees
If an attorney breaches his or her fiduciary responsibility to
a client, a denial of attorney's fees may be an appropriate
sanction. Condren v. Grace, 783 F. Supp. at 185 (noting
"[w]ithout question, case law addressing the topic of breach of
an attorney's fiduciary duties to his client sanctions denial of
legal compensation"); see also Silbirger v. Prudence Bonds
Corp., 180 F.2d 917, 920-21 (2d Cir.), cert. denied,
340 U.S. 831 (1950); In re Estate of Winston, 214 A.D.2d 677,
625 N.Y.S.2d 927 (2d Dep't 1995) (holding that "`[a]n attorney who
engages in misconduct by violating the Disciplinary Rules is not
entitled to legal fees for any services rendered'") (quoting
Shelton v. Shelton, 151 A.D.2d 659, 542 N.Y.S.2d 719, 720 (2d Dep't 1989)).
Applying New York law, courts have held that even an attorney
who is found guilty of champerty, see, e.g., Application of
Kamerman, 278 F.2d 411, 413-14 (2d Cir. 1960), or engages in
unconscionable overcharging, see, e.g., Newman v. Silver,
553 F. Supp. 485, 496-97 (S.D.N.Y. 1982), aff'd in part, remanded
on other grounds, 713 F.2d 14 (2d Cir. 1983), does not forfeit
his fee entirely, but rather is entitled to recover in quantum
meruit. See In re Rosenman & Colin, 850 F.2d 57, 63-64 n. 3
(2d Cir. 1988) (finding that an attorney's alleged failure to
send monthly bills to his client in breach of a retainer
agreement, even if true, does not justify complete forfeiture of
fees); see also Mar Oil, S.A. v. Morrissey, 982 F.2d 830, 840
(2d Cir. 1993) (noting that "[t]he fact that an attorney has
breached his fiduciary duty to his client [by withdrawing client
funds from escrow without authorization] does not necessarily
mean that he must forfeit fees for services he had already
performed or would thereafter perform"); Olshan Grundman Frome
Rosenzweig & Wolosky LLP v. Jeglitza, No. 00 CV 1140, 2000 WL
420557, at *3 (S.D.N.Y. April 18, 2000) (stating that "a
violation of disciplinary rules does not necessarily relieve the
client entirely from payment" but finding no violation based on
the record developed thus far). "A lawyer forfeits his entire fee
due to misconduct only where the misconduct relates to the
representation for which the fees are sought." Decalator, Cohen
& DiPrisco, L.L.P. v. Lysaght, Lysaght & Kramer, P.C.,
304 A.D.2d 86, 91, 756 N.Y.S.2d 147,150 (1st Dep't 2003).
T&F contend that a total forfeiture of fees in this case would
be contrary to New York's general policy of disfavoring fee
forfeitures, particularly "`where there are other . . . sanctions
for non-compliance.'" (T&F Post-Tr. Br. at 56) (quoting Benjamin
v. Koeppel, 85 N.Y.2d 549, 553, 650 N.E.2d 829, 831, 626 N.Y.S.2d 982, 984 (1995)). In Benjamin,
however, an attorney had sought payment of a fee based on his
referral of a client in a real estate matter, but the defendant
law firm refused to pay, claiming that because the attorney had
failed to comply with the attorney registration requirements,
payment of the fee would violate public policy. 85 N.Y.2d at 552,
650 N.E.2d at 830, 626 N.Y.S.2d at 983. In rejecting that
argument, the court noted that the remedy total forfeiture of
fees was "`wholly out of proportion to the requirements of
public policy.'" 85 N.Y.2d at 556, 650 N.E.2d at 832, 626
N.Y.S.2d at 983 (quoting Rosasco Creameries v. Cohen, 276 N.Y. 274,
278, 11 N.E.2d 908, 909 (1937)).
In this case, CN&S contend that the ethical breaches committed
by T&F both before and after they ceased representation of the
Louimas are of a much more serious nature. "While the law abhors
a forfeiture, this is not a case involving a mere technical
breach of contract . . . but a gross breach of an attorney's
professional and fiduciary duties to his client." A to Z Assocs.
v. Cooper, 161 Misc.2d 283, 292, 613 N.Y.S.2d 512, 519 (N.Y.
Sup.Ct. 1993) (citations omitted).
T&F argue that the authorities cited by CN&S in which an
attorney's misconduct has resulted in a forfeiture of fees are
not relevant here because in those cases, the attorneys'
misconduct constituted a conflict of interest or amounted to a
fraud, which "go to the heart of the attorney-client
relationship." (T&F Post-Tr. Br. at 56). T&F maintain that "the
basis for denying a fee in the conflict of interest cases is that
the client did not get what the client agreed to pay for, i.e.,
conflict-free representation." (Id. at 56).
While it is true that the misconduct referred to in a number of
cases cited by CN&S is based on the type of conflict that arises
when an attorney divides his allegiance between two clients,
see, e.g., Silbirger v. Prudence Bonds Corp., 180 F.2d at 920; Condren v.
Grace, 783 F. Supp. at 185; In re Estate of Winston,
214 A.D.2d 677, 625 N.Y.S.2d 927; Shelton v. Shelton, 151 A.D.2d 659,
542 N.Y.S.2d at 720, here, the alleged disclosure of client
secrets in violation of the Disciplinary Rules presents a
conflict between the client's interests and the interests of the
attorneys themselves, which is arguably a more serious violation.
Although neither party has cited any cases directly on point in
which an attorney, whether to preserve or advance his claim for
fees, as CN&S suggest, or to defend his reputation, as T&F claim,
revealed client confidences and secrets to the press without
authorization, this Court finds that this conflict between the
attorneys' interests and those of their client is at least as
serious as the traditional type of conflict that occurs when an
attorney represents two clients with competing interests.
Here, it is clear that T&F's misconduct clearly relates to the
representation of the Louimas for which they are now seeking fees
and are not mere "technical" violations of the Disciplinary
Rules. Instead, it is clear that a number of the disclosures
created problems for Louima by raising questions about potential
ethical violations by Louima's counsel and by calling into doubt
Louima's motives and his credibility. While the Court finds T&F's
actions to be in violation of the Disciplinary Rules,*fn101
the Court also concludes that, should it be determined that T&F
had good cause to withdraw, or were terminated without cause,
complete forfeiture of their fees based on these press
disclosures is not warranted. While the disclosure of client
secrets and confidences is a significant breach of an attorney's
ethical obligations, it is not akin to theft, fraud, or other
criminal acts. Indeed, many of the unauthorized press statements occurred long before T&F resigned from the case,
and, while they were an issue of concern for Louima, the
statements did not cause Louima to terminate T&F earlier.
However, because the Court considers T&F's breaches to be
extremely serious, this Court respectfully recommends that T&F
forfeit a significant portion of their fees due to their
unjustified disclosure of their client's secrets.
E. Roper-Simpson's Claim to Fees
Before calculating the amount of fees to which T&F would have
been entitled if they had withdrawn with good cause, this Court
must first address Ms. Roper-Simpson's claim for fees in this
Despite her attorney's protestation to the contrary (see R.S.
Tr. III at 76), Ms. Roper-Simpson's position regarding the basis
for her right to compensation has changed during the course of
the fee dispute. Initially, prior to the commencement of the fee
hearing, she conceded that she was not hired by the Louimas, but
that she was retained to assist T&F. (See R.S. Mem. at 11
(stating "Ms. Roper-Simpson had no agreement with the Louimas,
oral or written")). In her Affidavit filed prior to the fee
hearing, she represented that while she was "self-employed" and
had "never been an employee" of either Thomas, Figeroux or the
T&F firm,*fn102 "[s]ometime in August 1997, Carl W. Thomas,
Brian Figeroux and myself had agreed orally that fees from all
the cases which were jointly handled by us would be shared
equally among us." (Affidavit of Casilda Roper-Simpson, dated
Mar. 29, 2001 ("R.S. Aff.") ¶¶ 8-10). However, during the course of her testimony at the hearing, she
was questioned about certain notes in her personal diary which
reflected the following: " TC [Carl Thomas] states that [he]
think[s] FB [Brian Figeroux] thinks & concern that I
[Roper-Simpson] want proportionate. That's why he's keeping me
out of meeting[s]." (Ex. 84-O; R.S. Tr. III at 72). She explained
that what she was referring to here was a discussion about the
arrangement to split fees in the Louima matter three ways with
T&F. (R.S. Tr. III at 72). Her notes further indicate that when
she pressed for a contract in writing, Figeroux "stated [n]o
writing. Attys keep changing, percentage keep chang[ing]." (Ex.
84-O). On the other hand, she testified that Thomas thought she
should receive a third. (R.S. Tr. III at 87). When asked at the
hearing, whether she had an agreement with the T&F lawyers that
there would be a one-third split of any fees received from the
Louima matter, she conceded that at the time she wrote these
notes, there was no agreement. (R.S. Tr. III at 78-79). She
stated: "Well, there was really never an understanding. That's
why we were in the process of negotiating, myself and Brian and
Carl." (Id. at 79). However, by late September of 1997,
Roper-Simpson believed she had "an oral agreement" of a one-third
split among her, Thomas and Figeroux. (Id. at 128, 130,
152-53). She also conceded that nowhere in her notes had she
indicated that she believed Louima would have to pay her. (Id.
However, in the course of her testimony during the fee
proceedings, Roper-Simpson seemed to suggest that she had an oral
agreement directly with the Louimas. When questioned about the
statements in her Affidavit, she confirmed that she never had a
written agreement with Louima, but her testimony was unclear as
to whether she was asserting a claim that she had an oral
agreement with him. When asked by counsel for CN&S whether it was
true that "neither Abner nor Micheline Louima ever orally retained you," Roper-Simpson responded: "I can't
positively respond to that in terms of yes or no." (R.S. Tr. II
at 178). She testified that there was a conversation in January
of 1998, in which Louima allegedly said to her and to Thomas and
Figeroux that he wanted them to continue to work on the case, and
that she believed Louima was referring to her as well since she
was in the room at the time. (Id. at 180). When confronted with
the statement in her attorney's Memorandum of Law that she was
not asserting that she had an oral or written agreement with the
Louimas, Roper-Simpson agreed that the statement that she had no
written agreement with Louima was correct, but testified that
"[i]n reference to the oral part I again say, no. And in any
event, I did not read all of this by my attorney." (Id. at
Subsequently, during the course of her testimony,
Roper-Simpson's counsel made it clear that she was seeking fees
under two theories: one theory was that she should receive a
one-third portion of any amount that is awarded to T&F, and under
a separate theory, she argues that she has an independent claim
that entitles her to receive fees directly from Louima calculated
on a quantum meruit basis. (R.S. Tr. III at 73-76). This
second theory, although not spelled out in any detail, seems to
appear in Roper-Simpson's legal memorandum submitted prior to the
hearing. This memorandum contained the following assertion:
In the event that the court declines to enforce the
Retainer Agreement of November 3, 1997, Ms.
Roper-Simpson should be paid from the settlement
proceeds . . . on the theory of quantum meruit. Ms.
Roper-Simpson had no agreement with the Louimas, oral
or written. However, she rendered her professional
services to the Louimas for their benefit.
(R.S. Mem. at 11). In her post-hearing papers, Roper-Simpson seems to have
abandoned any claim that she is seeking fees directly from
Louima. However, to the extent that Roper-Simpson may still be
claiming that she is entitled to fees directly from Louima as the
result of some sort of oral agreement, this Court does not find
her testimony to be credible in that regard. First, her
representation that she had an agreement with Louima conflicts
with her March 2001 Affidavit, and directly contradicts
statements in her attorney's memorandum of law. Moreover, she
conceded an awareness of the rules of the Second Department which
require attorneys in a contingency fee case to file a retainer
statement with the Office of Court Administration, and admitted
that she had not done so here. (R.S. Tr. II at 188-194; N.Y.
Comp. Codes R. & Regs., tit. 22, § 691.20).*fn103
the totality of credible evidence, the Court concludes that Ms.
Roper-Simpson has no direct claim for fees as the result of an
agreement with the Louimas.
Her Post-Hearing Memorandum of Law states: "[i]t is also no
longer in dispute that Roper-Simpson has an enforceable
fee-sharing agreement with the firm of Thomas & Figeroux." (R.S.
Post-Tr. Br. at 9). What she claims now is that:
She was working pursuant to an oral understanding
with Thomas & Figeroux to share fees due to Thomas &
Figeroux by virtue of Plaintiffs' Exhibit 2 [the
By virtue of her oral agreement with [T&F] to an
equal share of fees in this case, Roper-Simpson has a
beneficial interest in Exhibit 2.
(Id. at 28). To the extent that she claims entitlement to fees based upon a
theory of quantum meruit, Roper-Simpson cites no cases in
support of her claim that she is entitled to a share based on a
theory that she is a third-party beneficiary to the Retainer
Agreement executed by the Louimas and dated November 3, 1997.
(R.S. Post-Tr. Br. at 28; Ex. 2).*fn104
Indeed, it is clear
that, given this Court's finding that there was no direct
retainer agreement entered into between the Louimas and
Roper-Simpson, she cannot recover any portion of the fees, unless
she demonstrates that she had an agreement with T&F, in which
case her share would come out of the share allocated to
See, e.g., Warren v. Meyers, 187 Misc.2d 668,
673, 723 N.Y.S.2d 337
, 342 (N.Y.Sup.Ct. 2001) (finding that
firm that performed work on behalf of client with client's
knowledge but without valid retainer agreement could not assert
direct claim upon client for fee but was entitled to a share of
the fee awarded to the referring attorney). Although
Roper-Simpson may be entitled to an "equitable lien" on T&F's
share of the fees based on an agreement with T&F, made with the
client's authority (see discussion supra at 101-105),
Roper-Simpson must first establish that she had such an agreement
with T&F and that Louima was aware of it and approved of it.
However, it is unclear to this Court on what basis
Roper-Simpson is claiming that she had a firm agreement with T&F.
While Roper-Simpson asserts that she had an oral agreement to
split fees with T&F, her own testimony in this regard is conflicted, and the
notes taken contemporaneously with discussions that she had with
T&F on this topic suggest otherwise. In addition, Figeroux's
testimony does not confirm that any such solid agreement
regarding Roper-Simpson's compensation was reached. At the
hearing, Figeroux testified that Thomas brought Roper-Simpson in
to work on the case (F. Tr. III at 37), and he also testified
that, in his opinion, "she was an employee of Carl W. Thomas.
(Id. at 64).*fn106
Based on Roper-Simpson's and Figeroux's description of the
relationship between Roper-Simpson and T&F, it is likely that any
fee arrangement would have been discussed primarily between
Roper-Simpson and Thomas, who, of course, was deceased at the
time of these proceedings. However, while the precise contours of
Roper-Simpson's arrangement with T&F are not clear, and in fact
may never have been agreed upon, it is also clear that neither
Roper-Simpson, Thomas, nor Figeroux thought that Roper-Simpson
was working for free. (See R.S. Post-Tr. Br. at 28). In
addition, Louima's repeated contacts with Roper-Simpson
demonstrate that he was aware of her efforts and did not object
to her collaboration with T&F. In fact, Louima acknowledged that
he understood that Roper-Simpson was working with T&F, and that
she would be paid by them. (L. Tr. at 14-15; see also Ex. 8).
Therefore, to the extent that T&F are entitled to receive fees
in this matter, Roper-Simpson is entitled to a share of those
fees. At this point, however, given this Court's recommendation
that T&F receive no portion of the attorneys' fees, this Court
respectfully recommends that Roper-Simpson also receive no fees. In the event that it is determined that T&F
should receive a percentage of the fee award, this Court
respectfully recommends that Roper-Simpson receive a portion of
those fees awarded to T&F based on her contribution to the
F. Fee Determination
In determining an appropriate fee in a case where there has no
misconduct by counsel, the New York Court of Appeals has held
that "a discharged attorney may recover the `fair and reasonable
value' of the services rendered . . . determined at the time of
discharge and computed on the basis of quantum meruit." In
re Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658,
522 N.E.2d 288, 290, 602 N.Y.S.2d 788, 790 (1993) (internal citations
omitted). Even where a retainer agreement assigns a portion of
the proceeds of an action to counsel, "[w]hen the attorney-client
relationship is terminated in the midst of the attorney's
representation, counsel's entitlement to fees is no longer
governed by the terms of the retainer agreement." Casper v. Lew
Lieberbaum & Co., Inc., 1999 WL 335334, at *5. Instead, the
attorney may be allowed a charging lien upon any proceeds of the
lawsuit, to be determined on a quantum meruit basis once the
case is concluded. Id. at 5-7; see also People v. Keeffe,
50 N.Y.2d at 156-57, 405 N.E.2d at 1015, 428 N.Y.S.2d at 450. In
determining a fixed dollar amount based on quantum meruit,
the court can take into account the original retainer agreement,
see Universal Acupuncture Pain Servs., P.C. v. Quadrino &
Schwartz, P.C., No. 02 CV 9469, 2004 WL 1203147, at *3 (2d Cir.
June 2, 2004); Matter of Tillman, 259 N.Y. 133, 135,
181 N.E. 75, 75-76 (1932), and may consider the size of recovery. Cheng
v. Modensky Leasing, Corp. Inc., 73 N.Y.2d at 459, 539 N.E.2d at
573, 525 N.Y.S.2d at 330 If the client and his attorney agree, the attorney may receive
a percentage of the recovery as a fee. See Universal
Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 2004
WL 1203147, at *2; Reubenbaum v. B. & H. Express, Inc.,
6 A.D.2d 47, 48, 174 N.Y.S.2d 287, 289-90 (1st Dep't 1958). Thus,
once an attorney is determined to have the right to assert a
charging lien, the "outgoing attorneys have the option of taking
a fixed dollar amount compensation, presently determined on a
basis of quantum meruit, or, instead, of taking a contingent
amount or percentage also based on quantum meruit but with
the amount or percentage determined in an ancillary proceeding at
the conclusion of the case." Paolillo v. American Export
Isbrandtsen Lines, Inc., 305 F. Supp. 250, 251 (S.D.N.Y. 1969);
see also Bradley v. Consol. Edison Co. of New York, No. 83 CV
7504, 1991 WL 156368, at *4 (S.D.N.Y. Aug. 7, 1991).
The New York Court of Appeals has made it clear that when the
fee dispute is between counsel, "[t]he discharged attorney may
elect to receive compensation immediately based on quantum
meruit or on a contingent percentage fee based on his or her
proportionate share of the work performed on the whole case." In
re Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d at 658, 622
N.E.2d at 290, 602 N.Y.S.2d at 790. Since "as a practical matter,
quantum meruit valuation of services rendered by a discharged
attorney can best be determined at the time of discharge, rather
than some months or years later when the case finally ends," and
"the calculation of a contingent percentage fee is better left to
the conclusion of the litigation when the amount of the recovery
and the relative contributions of the lawyers to it can be
ascertained," the court has left the election of the method for
determining fees to the departing counsel. 81 N.Y.2d at 659, 622
N.E.2d at 290, 602 N.Y.S.2d at 790 (citations omitted). Where the
attorney takes no action at the time of discharge or remains
silent as to his election of the method by which fees should be determined,
the Court of Appeals has held that "the presumption should be
that the contingent fee has been chosen." 81 N.Y.2d at 660, 622
N.E.2d at 290, 602 N.Y.S.2d at 790. See also Cheng v. Modansky
Leasing Co., 73 N.Y.2d at 458, 539 N.E.2d at 572, 541 N.Y.S.2d
at 744 (noting that the contingent percentage fee "may be fixed
at the time of substitution but . . . is better determined at the
conclusion of the case when such factors as the amount of time
spent by each lawyer on the case, the work performed and the
amount of recovery can be ascertained").
Here, it is clear from the actions of T&F following the
termination, confirmed by Figeroux's testimony at the hearing (F.
Tr. III at 23-24), that T&F elected to receive a percentage of
the recovery rather than a fee based on quantum meruit.
Although the retainer agreement of November 3, 1997, specifies
that the fees will be divided one-third to CN&S, one-third to the
Rubenstein firm, and one-third to T&F, this Court finds that if
T&F is to receive any share, equity demands a significant
reduction in T&F's share as justified by T&F's conduct in
violation of the Disciplinary Rules. To the extent that T&F are
entitled to receive some compensation, albeit reduced, it is in
recognition of the fact that T&F did perform a valuable service
to Louima in the early weeks following the incident.
In determining the reasonable value of the services rendered by
an attorney, some courts have considered the following factors:
"(1) time, (2) standing of the lawyer at the bar; (3) amount
involved; (4) benefit to the client and (5) skill demanded."
Paollilo v. American Export Isbrandsten Lines, Inc.,
305 F. Supp. at 251. See also D.R. 2-106, N.Y. Comp. Codes R. & Regs.,
tit. 22 § 1200.11 (setting forth factors relevant to determining
reasonableness of fee).
Indeed, normally, in calculating a reasonable attorney's fee,
courts first determine a "lodestar" figure by multiplying the number of hours reasonably spent by
counsel on the matter by a reasonable hourly rate. See Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983); Cruz v. Local Union No.
3 of Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1159 (2d Cir.
1994); F.H. Krear & Co. v. Nineteen Named Trustees,
810 F.2d 1250, 1263 (2d Cir. 1987); Cowan v. Ernest Codelia, P.C., No.
98 CV 5548, 2001 WL 30501, at *7 (S.D.N.Y. Jan. 12, 2001). "While
there is a strong presumption that this amount represents a
reasonable fee," Cowan v. Ernest Codelia, P.C., 2001 WL 30501,
at *7, this resulting "lodestar" figure can be adjusted upward or
downward based on other considerations. See Quaratino v.
Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). It is clear,
however, that "`[t]he fee applicant bears the burden of
establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.'" Cruz v. Local
Union Number 3, 34 F.3d at 1160 (quoting Hensley v. Eckerhart,
461 U.S. at 437).
In connection with fee applications, courts generally require
the party seeking fees to submit detailed records, listing the
services rendered in connection with the action, the name of each
attorney who worked on the matter, the date that services were
performed, the hours spent in performing the services, and the
hourly rate charged. See New York State Ass'n For Retarded
Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983)
(holding that an attorney "who applies for court-ordered
compensation . . . must document the application with
contemporaneous time records. . . . specify[ing], for each
attorney, the date, the hours expended, and the nature of the
work done"). It is clearly the attorney's burden to maintain
contemporaneous records, see F.H. Krear & Co. v. Nineteen
Named Trustees, 810 F.2d at 1265, and fee applications are
subject to denial where the fees have not been adequately
documented. See, e.g., Riordan v. Nationwide Mut. Fire Ins.
Co., 977 F.2d 47, 53 (2d Cir. 1992).
In this case, however, none of the attorneys have submitted
time records to the Court. Indeed, Figeroux and Roper-Simpson
have made it clear in their testimony that there were no fee
records kept in this case and indeed, apart from Ms.
Roper-Simpson's personal diary, there are no documents, phone
records, calendars, correspondence or legal papers of any kind
that were kept by either T&F or Roper-Simpson. The absence of any
documentation whatsoever compounds the already difficult job of
assessing an appropriate discount to the one-third percentage of
fees that would have been received had T&F not committed these
Accordingly, in order to reach an appropriate fee, this Court
has analyzed the relative contributions of the attorneys to the
case as follows.
(1) Standing at the Bar
Looking to the five factors listed in enumerated in Paollilo
and considering first the standing of the attorneys at the bar,
all of the attorneys appear to have been members of the bar in
good standing. However, based on the relative experience of the
attorneys in pursuing complex civil rights cases, CN&S
collectively have significantly more experience in these types of
cases than T&F.
Johnnie L. Cochran, Jr. testified that he graduated from law
school in June 1962, was admitted to the California Bar on
January 10, 1963 and worked as a prosecutor for the City of Los
Angeles for two and a half years. (C. Tr. I at 178). He then
opened his own firm practicing civil and criminal law from mid
1965 to the end of 1977, at which time he was appointed Assistant
District Attorney for Los Angeles County, which, according to
Cochran, was the third ranking position in the Los Angeles County District Attorney's Office. (Id.) At the end of 1980, he
returned to private practice, concentrating primarily in civil
rights litigation, as well as criminal defense work. (Id. at
Barry C. Scheck testified that he is 53 years old, graduated
from Yale University and from law school at the University of
California at Berkley. (S. Tr. I at 22). Following law school, he
worked briefly for the Farm Workers Union, and then in the summer
of 1975, he took a job with the Legal Aid Society as a public
defender in the South Bronx. (Id. at 22-23). In 1978, he
started a clinical program at Cardozo School of Law as a Director
of Clinical Education where he not only supervised students but
also handled a variety of high profile criminal cases. (Id. at
23-26). In 1988 and 1989, Scheck, along with Neufeld, began
litigating cases involving DNA testing, eventually culminating in
the founding of the Innocence Project in 1992. (Id. at 26).
Peter Neufeld, a 1975 graduate of New York University Law
School, testified that his first job following graduation was
with a Seattle law firm that specialized in civil rights work.
(N. Tr. I at 9-10). He then went to work for the Legal Aid
Society, Criminal Defense Division, where he spent seven years,
after which he went into private practice in the mid-1980's.
(Id. at 10). He also taught trial advocacy at Fordham Law
School and then, in the early 1990s, he left Fordham to join
Barry Scheck teaching at Cardozo Law School in conjunction with
their work on the Innocence Project. (Id.) Neufeld testified
that approximately 50% of his time currently is spent on the
Innocence Project and he does that work "completely pro
bono." (Id. at 11). He is also counsel or co-counsel in
"dozens" of capital cases throughout the country which again, he
does pro bono. (Id.) He served on the New York State
Commission on Forensic Science and is chairman of the Medical
Committee of Montefiore Medical Center, both of which are unpaid
positions. (Id. at 11-12). Sanford Rubenstein testified that he received an Associates of
Art Degree from Rockland Community College and a Bachelor of Arts
Degree from State University of New York at Oswego. (R. Tr. at
27). He graduated from Brooklyn Law School in 1971 and, after
being admitted to the Bar, he became a partner in the firm of
Jacobs, Jacobs, Scolnick & Rubenstein, with an office in the
Bedford Stuyvesant section of Brooklyn, where his practice was a
general one with an emphasis on personal injury cases. (Id. at
28). Although Rubenstein remained a partner, the firm changed
names several times over the years until now it is known as
Rubenstein & Rynecki, with offices at 16 Court Street in
Brooklyn. (Id.) According to Mr. Rubenstein, the firm has been
focusing on personal injury and civil rights cases for over 30
years. (Id. at 29). Although he has never tried a civil rights
case to verdict, Mr. Rubenstein testified that he had represented
victims in civil rights cases before, but all of them had settled
before trial, including the Harper case which Rubenstein worked
on in conjunction with Mr. Thomas. (Id. at 101, 115-16).
Mr. Rubenstein testified that he had been representing members
of the Haitian community for thirty years and been active in
causes affecting the Haitian community for the last fifteen
years. (Id.) Among other issues, Rubenstein, along with leaders
of the community, lobbied members of Congress and the State
Department in an effort to send teams of observers in connection
with the 1990 presidential election in Haiti. (Id. at 29-30).
He has received a number of awards from a number of Haitian
organizations, the Haitian government, and the Haitian Bar
Association, as well as receiving a citation from President
Clinton for his work in Haiti. (Id. at 30).
As to Mr. Thomas' background, Elizabeth Thomas, Mr. Thomas'
widow and executrix of his estate, testified that Thomas came to
the United States in 1980 from Trinidad, and at the time of his death, he had four children, aged 19, 18, 17 and 5. (Thomas Tr.
at 32-33). He attended Brooklyn College, where he majored in
Political Science, and later became an Adjunct Professor. (Id.
at 33). He graduated from New York University Law School where he
was the first student from Brooklyn College to receive a Root
Tilden Scholarship. (Id. at 34). After graduation, he served in
the Brooklyn District Attorney's Office as an Assistant District
Attorney ("A.D.A.") and then opened his own law practice. (Id.)
At some point in time, he began to share an office with Figeroux.
(Id. at 37). In addition, Mr. Thompson testified that he was
aware that Thomas had represented Nicolas Haywood, Sr., the
plaintiff in another civil rights case in which Haywood's child
had been shot by a police officer when he saw the child with a
plastic gun. (T. Tr. at 228).
Brian Figeroux also served as an A.D.A. in the Major Fraud and
Organized Crime units of the Brooklyn District Attorney's Office,
but he never tried a case as an A.D.A. (F. Tr. I at 89; F. Tr.
III at 48). After leaving the office in 1996, Figeroux started
his own practice in the areas of immigration, matrimonial, real
estate, and personal injury law. (F. Tr. II at 70-71). He
testified that he gives free consultations on Saturdays, provides
a free publication for immigrants, and participates in a program
on station WPAT where they discuss immigration and
landlord-tenant issues. (Id. at 71-72). He is also the legal
advisor for the United States Steel Band Association, the All
Fours Alliance, and the Trinidad ex-police force. (Id. at 72).
When questioned, Figeroux conceded that he had never prosecuted a
complex civil case. (Id. at 48-49). When asked if Thomas had
prosecuted a complex civil rights case, he also testified, "Not
that I know of." (Id. at 49).
According to her testimony, Ms. Roper-Simpson attended New York
City Community College in 1980, where she received an Associate
Applied degree in legal secretarial science. (R.S. Tr. I at 7). She graduated from Bernard Baruch College in 1987 with a
Bachelor's Degree in political science. (Id.) She subsequently
graduated from Brooklyn Law School in 1994. (Id.) Following
graduation from law school, she was admitted to the Bar in 1996
and went into practice with her sister, who had an office at 1399
Fulton Street, Brooklyn. (Id.; R.S. Tr. III at 133). She
practiced law with her sister until late 1997 when she opened her
own office on Long Island (R.S. Tr. I at 7). At the time she
became involved in the Louima matter, she was running for City
Council in the 41st district in Brooklyn and was still working
out of her sister's office in Brooklyn. (Id. at 7-8). She had
met Carl Thomas in 1994 in the library when she was studying for
the Bar exam, and in August of 1997, Thomas was "somewhat my
campaign manager." (Id.)
Thus, while both sets of attorneys were experienced, Cochran,
Neufeld and Scheck collectively had more experience with complex
litigation in general and civil rights cases in particular than
Thomas, Figeroux, and Roper-Simpson.
(2) T&F's Contributions
Turning next to their respective contributions to the case, the
time spent and the relative benefits bestowed on the Louimas as a
result of their work, T&F contend that from August 1997 until
November 1997, Thomas, Figeroux and Roper-Simpson expended "many
hundreds of hours" per month on behalf of Louima, "typically
work[ing] six days or more a week, and ten hours or more a day,
spending 70% or more of their time on Louima's matter." (T&F
Post-Tr. Br. at 17 (citing Figeroux Tr. III at 39, 43-49;
Monceour Tr. at 130-35; R.S. Tr. I at 139-44; Thomas Tr. at
41-44)). Ms. Thomas testified that her husband spent "[m]any,
many hours" on the case in the period following Louima's assault; in fact she "[h]ardly ever" saw him during this period.
(Thomas Tr. at 40-41). Ms. Thomas stated that she "thought as
though my family also worked on [the] case because we never saw
him." (Id. at 41). She testified that he would work very late
at night making phone calls. (Id.) She also testified that
there were one or two meetings held at her home involving the
Louima case. (Id. at 42-43). Ms. Thomas testified that she
was present for one or two of these meetings and that Figeroux
and others were also present. (Id. at 43). She actually met
Louima at his home. (Id. at 44-45).
T&F assert that, among other things, they spent time: 1)
communicating with the prosecutors and assisting in the
government's investigation (F. Tr. III at 42-43, 45; R.S. Tr. I
at 141; T. Tr. at 235, 261); 2) organizing community protests and
marches (R.S. Tr. at 140-41; F. Tr. III at 55-56); 3)
representing Louima in grand jury proceedings and government
interviews (R.S. Tr. I at 50, 166; F. Tr. III at 62-63); 4)
undertaking to obtain permission for Louima's daughter to enter
the United States (R.S. Tr. I at 134-35, N. Tr. I at 102; Ex.
52); and 5) sponsoring Cochran's admission to the Eastern
District of New York. (R.S. Tr. IV at 55-56; Thomas Tr. at 45-46;
L. Tr. at 122).
T&F also facilitated the interview with McAlary (C. Tr. II at
106-07; N. Tr. II at 146; F. Tr. III at 38-39), gave a press
conference to channel N.Y. 1 regarding Louima's torture,
solicited the involvement of the Reverend Al Sharpton, the
Reverend Calvin Butts, and the New York Civil Liberties Union (F.
Tr. III at 37-38, 58-59; R.S. Tr. I at 20), and made numerous
contacts with the press and television appearances on Louima's
behalf. (R.S. Tr. I at 49-50; C. Tr. II at 33-34; F. Tr. III at
54).*fn107 They coordinated and consulted with Neufeld
initially on Louima's care and on the retention of the Walker Investigative Agency. (N. Tr. I. at 20;
N. Tr. II at 28). Perhaps most important, they were instrumental
in contacting Mr. Thompson and seeking the involvement of the
U.S. Attorney's Office.*fn108 (T. Tr. at 218).
However, neither T&F nor Roper-Simpson presented a single piece
of evidence to corroborate their testimony as to the amount of
hours they spent on the Louima case. They presented not a
single time slip; they kept no time records.*fn109 More
important, however, is the fact that, when questioned, Figeroux
testified that he had no notes, papers or writings to document
the investigative work performed on behalf of Louima, not "a
single piece of paper" reflecting "even a single conversation"
with Louima. (F. Tr. II at 49).*fn110 Figeroux testified
that he depended on Roper-Simpson to take notes but even when she
was not present, he did not believe it was necessary to take
notes. (Id. at 49-51). Although Roper-Simpson presented one
page of notes taken during a witness interview, she testified that she did not take notes of what occurred at the initial
meeting with the U.S. Attorney's Office (R.S. Tr. I at 175-76),
or Louima's interview with the District Attorney's Office, nor
did she "have any notes per se of the case." (R.S. Tr. III at
112).*fn111 Whatever notes she had were given to Figeroux,
who did not produce them for the hearing. (Id.)
Nor did T&F or Roper-Simpson present any documents,
correspondence, research, or records of any kind to show the type
of legal or other work they performed on the case. They did not
have any records of phone calls, diaries or even files opened on
the matter. Although Roper-Simpson kept a diary for a brief
period of time in which she recorded certain events, this diary
was, as she ultimately conceded, written largely as a precursor
to a book she intended to write. (R.S. Tr. IV at 13, 25-26).
(3) The Work Performed by CN&S and Rubenstein
By comparison, it is clear from all the evidence, that CN&S,
and to a lesser extent the Rubenstein firm, were responsible for
researching, drafting and filing the civil action on behalf of
the Louimas and for obtaining the $8.75 million settlement on
their behalf.*fn112 As Mr. Scheck testified, CN&S
investigated the underlying facts, hired investigators, consulted
with physician specialists and expert psychiatrists, and dealt
generally with the Louimas. (S. Tr. I at 50-51; N. Tr. I at
20-24; 28-33). They also participated in numerous debriefing sessions with the
government. (S. Tr. I at 53-58). Indeed, it is clear from
Neufeld's testimony that from the beginning, he was primarily
responsible for trying to obtain physicians and mental health
experts to deal with Louima's mental and physical condition. (N.
Tr. I at 19-23). He was also involved in lobbying the Justice
Department and the U.S. Attorney's Office to pursue a "pattern
and practice" civil rights case, as well as dealing with the City
Council to obtain records of other similar claims. (Id. at
35-38). Neufeld and Cochran also caucused with black leaders and
groups of civil rights attorneys for support. (Id. at 38; N.
Tr. II at 161; C. Tr. I at 212).
In addition, CN&S litigated a motion before Judge Nickerson to
prevent disclosure of the psychiatrist's notes to the defense in
the criminal prosecution (S. Tr. I at 137), and litigated against
the City for an opportunity to take photographs of the precinct
house. (N. Tr. I at 33). CN&S also collaborated with the
government in its efforts to have the witness Sonia Miller speak
to the prosecutors an event that Ms. Palmer described as one of
the most "significant" in the case. (P. Tr. at 23). Either Scheck
or Neufeld attended the debriefings of Louima by the government,
which were numerous and occurred over several months. (Id. at
15-16; S. Tr. I at 54; T. Tr. at 233). While Roper-Simpson was
present during Louima's state grand jury testimony (R.S. Tr. I at
170-71), and Figeroux attended some of the early debriefings with
the government, it is clear from the testimony of the government
prosecutors, as well as the attorneys, that Figeroux only
participated on several occasions and then stopped attending. (S.
Tr. I at 72; P. Tr. at 18; F. Tr. III at 45).
CN&S also litigated a matter before this Court relating to fees
to be paid to the PBA lawyers and a potential conflict of
interest stemming from PBA's counsel's attempts to represent both
the PBA and the individually named defendant officers. (S. Tr. I at 137).
According to Scheck, CN&S spent "hundred of hours of research" to
develop their Monell theory; they hired a criminologist, Dr.
Jeffrey Fagan, and consulted with leading experts in police
practices and training. (Id. at 137-38). They employed law
students to review other cities' practices regarding
investigations of police misconduct. (Id. at 138). They met
with AUSA Leslie Cornfeld to exchange ideas regarding her pattern
and practice investigation, and consulted with experts in their
efforts to target the PBA as a defendant. (Id. at 138-39).
Peter Neufeld testified that he had 18 lateral feet of files in
his office related to this case. (N. Tr. I at 45). He also
researched approximately twenty discrete legal issues in
connection with the case. (N. Tr. I at 70-71, 74-76; N. Tr. II at
187-88). CN&S took one deposition in connection with Louima's
case (N. Tr. I at 81; N. Tr. II at 189), and served document
requests and interrogatories. (N. Tr. I at 81).
The Verified Complaint, prepared and filed by CN&S and the
Rubenstein firm on August 6, 1998, long after T&F had ceased
their representation, consisted of forty pages of pleadings and
contained twenty-two counts against the City, the NYPD, the PBA,
sixteen named police officers, PBA members and EMS workers, as
well as unnamed individuals, alleging, inter alia, federal
claims of conspiracy, false arrest, excessive force, delay of
medical treatment, and failure to intercede, in violation of 42
U.S.C § 1983. (Ex. 46). There were also supplemental state law
claims for the same offenses, as well as a Monell claim against
the City. (Id.) The First Amended Complaint was subsequently
filed on December 4, 1998, adding an additional named defendant.
(N. Tr. I at 67; Ex. 47). A Second Amended Complaint was filed on
August 16, 2000 (Ex. 48), and a Third Amended Complaint was filed on September 27, 2000. (Ex. 49; N. Tr. II at
In response to the PBA's motion to dismiss the complaint, CN&S
prepared and served a seventy-one (71) page Memorandum of Law,
addressing the novel issue of the PBA's potential liability in a
Section 1983 police brutality case. (N. Tr. I at 79-80; Ex.
50).*fn114 In addition, a tremendous amount of time was
spent by CN&S and the Rubenstein firm attending settlement
conferences with this Court, first in tense and difficult
negotiations with the City of New York, and then with even more
difficult and lengthy sessions with the PBA and its insurers.
Without revealing the nature of these discussions in any detail,
they included discussions of the "48 hour rule," and adoption by
the PBA of a plan for conflict counsel. (N. Tr. I at 84-87). A
review of the Court's calendar and records demonstrates that,
prior to settlement, there were approximately 33 conferences
attended by CN&S and members of the Rubenstein firm over almost
three years, at which settlement, among other things, was
Rubenstein testified that as part of his role in pursuing
Louima's civil case, he prepared and filed the initial Notice of
Claim, assisted Neufeld in drafting the amended Notice of Claim,
reviewed the Summons and Complaint, suggesting various changes,
and then was responsible for service of the Complaint on the
defendants in the case. (R. Tr. at 75). He also reviewed the
three amended complaints as well as the PBA's motion to dismiss and Louima's
responsive papers. (Id.) He initiated settlement discussions
with the Corporation Counsel's office, attending three or four
meetings with members of that office. (Id. at 76). He then
attended the numerous settlement conferences with this Court and
was ultimately responsible for drafting the release, distributing
the settlement proceeds and negotiating with various lien
holders, doctors and hospitals, to reduce Louima's outstanding
CN&S vehemently deny that T&F "did the lion's share of the work
leading to recovery in this matter." (S. Tr. I at 136). They
dispute T&F's contention that not only did T&F play a critical
role in securing Louima's safety and bringing the case to the
public's attention, but that by generating interest in the United
States Attorney's Office and persuading Louima's family of the
wisdom of a federal prosecution,*fn116 T&F made the
"eventual civil settlement at or about the level achieved
virtually inevitable." (T&F Post-Tr. Br. at 75). Neufeld
testified that CN&S was operating under the assumption that
Louima's case would go to trial and thus CN&S was fully engaged
in preparing for trial. (N. Tr. II at 193). Moreover, the outcome
of such a trial was not a forgone conclusion, given the potential
problems in proving a "pattern and practice" of violations by the
City. (Id. at 191-92). Indeed, Figeroux conceded that it would be a difficult case to
prove. (F. Tr. II at 54). While Volpe eventually entered a guilty
plea, the government did encounter problems in the criminal
trials of the other officers allegedly responsible for the aiding
or concealing of the assault. In the end, it is impossible to say
whether the City would have been willing to take the case to
trial, but certainly the City could have argued that it should be
absolved of Monell liability in light of the extreme and
outrageous conduct of Volpe. The case against the PBA faced even
more difficult legal obstacles and thus the outcome of the PBA's
motion to dismiss was far from certain.
Based on all the evidence presented and this Court's own role
in supervising pretrial discovery and settlement negotiations,
this Court finds that T&F radically overstated the value of their
contribution to the case. While their decision to reach out to
Mr. Thompson at the U.S. Attorney's Office may have been
instrumental in initiating the federal prosecutions that would
vindicate Louima's rights, the publicity generated by the McAlary
article, coupled with the firm and passionate dedication of
Zachary Carter to pursuing investigations into civil rights
violations, virtually guaranteed an inquiry by the Office. (P.
Tr. at 7-8, 11-13, 74-75). Moreover, based on this Court's
intimate involvement in the arduous settlement process, this
Court finds that T&F's assertions ignore the amount of effort
required by CN&S and the Rubenstein firm to persuade certain of
the defendants to settle at all. While it is undeniable that T&F
spent a fair amount of time dealing with the press and attending
meetings with witnesses and the government in the early part of
the case, it does not appear that they conducted any legal
research in preparation for filing the civil action, and they did
not attend a single court conference, assist in discovery, or
engage in motion practice or submit legal papers of any kind. It
is unclear to this Court, who personally spent countless hours
with CN&S and the Rubenstein firm in attempting to settle the case, that T&F would ever have succeeded in attaining a
settlement comparable to that actually recovered. Certainly, T&F
have conceded that they never would have conceived of suing the
PBA nor did they conduct any of the research necessary to
formulate the claims set forth in the various complaints.
(4) Calculating the Value
Comparing the amount and nature of the work performed by T&F
and Roper-Simpson with that of the other lawyers, this Court
concludes that, in the absence of any fee sharing agreement, and
had they committed no breaches of their ethical obligations,
T&F's and Roper-Simpson's contributions to the Louimas' case
would amount to at most 10 percent of the time and services
rendered in the case, or $303,175.01.*fn117 While they would
have been entitled to receive a third of the total amount of
attorney's fees pursuant to the fee-sharing agreement regardless
of their contribution to the case, the Court finds T&F's
misconduct not only vitiates any right that T&F would have had to
their one-third share of the total fee award, but leads this
Court to recommend a significant reduction below 10 percent of
the total fees. Indeed, the Court finds that a reduction of 30%
is warranted as a result of the extremely serious ethical
violations committed by Thomas and Figeroux. This would result in
a total fee of $212,222.50, payable to the firm of T&F.
In determining whether this is an appropriate portion of fees
for T&F and Roper-Simpson, it is useful to estimate T&F's fees
using the lodestar method. Taking the starting date of T&F's work
on the case as August 11, 1997, the most that Thomas and Figeroux
could have worked on the Louima matter, based on Figeroux's
testimony, was 10 hours a day, six days a week for the period of
August 11, 1997 through October 1997. (F. Tr. III at 43-49). In
November, Figeroux testified that he and Thomas spent at most 50%
of their time on the Louima matter. (Id.) Thus, based on
Figeroux's estimation, T&F each spent roughly 800 hours each on
the case. With respect to Roper-Simpson, it is clear from her
testimony and her diary that she spent considerably less time on
the case. She conceded that she was often not invited to various
meetings of counsel and excluded from certain press events. (R.S.
Tr. III at 69-70, 80-81). Her diary reflects only a limited
number of entries relating to Louima in the first few weeks, and
she was unable to provide details regarding her efforts after the
first few months. (See R.S. Tr. I at 139-44, 169; R.S. Tr. III
In determining an appropriate rate used to calculate the
"lodestar" in a typical fee case, the Second Circuit has held
that the rates used must be in line with those rates prevailing
in "`the district in which the court sits.'" Luciano v. Olsten
Corp., 109 F.3d 111, 115 (2d Cir. 1997) (quoting Polk v. New
York State Dep't of Corr. Servs., 722 F.2d 23, 25 (2d Cir.
1983)). In addition to any evidentiary submissions by the
parties, the Court may consider its own experience and
familiarity with the case and with rates generally charged. See
Cruz v. Local Union No. 3, 34 F.3d 1148, 1160 (2d Cir. 1994).
Several recent cases have held that $175.00 to $200.00 per hour
is an appropriate rate for a solo practitioner here in the
Eastern District of New York. See, e.g., Schwartz v. Chan,
142 F. Supp.2d 325, 332 (E.D.N.Y. 2001) (citing Savino v.
Computer Credit, Inc., 164 F.3d 81, 87 (2d Cir. 1998) (finding
hourly rate of $175.00 reasonable)); Walia v. Vivek Purmasir &
Assocs., Inc., 160 F. Supp.2d 380, 382 (E.D.N.Y. 2000)
(increasing from $175 to $200 per hour the rate at which a solo practitioner in the Eastern District of New York should be
compensated). See also Cush-Crawford v. AdChem, 94 F. Supp.2d 294,
302 (E.D.N.Y. 2000) (noting that Second Circuit has
approved rate of $200.00 per hour for partners in the Eastern
District). Other cases have found that higher rates are
appropriate for experienced attorneys in larger firms dealing
with more complex issues or areas of specialized practice, see,
e.g., New Leadership Comm. v. Davidson, 23 F. Supp.2d 301
(E.D.N.Y. 1998) (supplementing the Report and Recommendation of
the magistrate judge and approving as reasonable rates of $275
per hour for the partner, $200 for an experienced associate, $150
for a less experienced associate and $65 for law students);
Fernandez v. North Shore Orthopedic Surgery & Sports Medicine,
P.C., No. 96 CV 4489, 2000 WL 130637, at *2 (E.D.N.Y. Feb. 4,
2000) (finding $225.00 per hour reasonable for partners);
Greenidge v. Mundo Shipping Corp., 60 F. Supp.2d 10, 12-13
(E.D.N.Y. 1999) (finding that reasonable rates range between
$200.00 to $225.00 for partners, $200.00 for senior associates
and $100.00 for junior associates) (citing Perdue v. CUNY,
13 F. Supp.2d 326, 345-46 (E.D.N.Y. 1998)).
Having considered the testimony of the witnesses regarding the
background and experience of both Thomas and Figeroux, their
limited experience in pursuing this type of civil rights case,
and most importantly, the type of work they did on the case, the
Court finds that a rate of $200.00 per hour would be more than
generous. With respect to Ms. Roper-Simpson, who had been out of
law school at the time for only three years, and admitted to the
bar for only one year, a reasonable rate for her would be $125.00
per hour. See, e.g., Greenidge v. Mundo Shipping Corp.,
60 F. Supp.2d at 12-13.
Based on these numbers, which assume that T&F worked as many
hours as they claim, the most T&F would have received on a quantum meruit basis is
$160,000 for each of Thomas and Figeroux for a total of $320,000.
Assuming Roper-Simpson spent half as many hours on the case as
Thomas and Figeroux, she would be entitled to $50,000.
However, this Court finds it utterly incredible that Thomas and
Figeroux spent six days a week, ten hours a day on the case for
several months, and yet generated not a single document or scrap
of paper. Likewise, based on her descriptions of the work she
performed, this Court finds it impossible that Roper-Simpson
spent even close to 400 hours on this matter. If a discount of
30% is taken to account for the inflated hourly estimates of
Thomas, Figeroux and Roper-Simpson, their fees would be reduced
to $112,000 each for Thomas and Figeroux and $35,000 for
Roper-Simpson. Given the Court's finding that a further reduction
of 30% to Thomas and Figeroux's fees is warranted as a result of
the extremely serious ethical violations committed by Thomas and
Figeroux, that reduction produces a fee of $78,400 each for
Thomas and Figeroux. Thus, the total award for the firm of T&F
would be $191,800, which is comparable to the $212,222.50
computed by the Court as a percentage of the contingency fee.
However, as the Court notes below, Figeroux's actions in
connection with this fee dispute, after the dissolution of Thomas
and Figeroux's partnership, warrant a total forfeiture of his
share of any fee.
G. Figeroux's Conduct
This Court finds that Figeroux's actions with respect to the
allegations set forth in paragraph 14 of his Affidavit are so
outrageous and so completely unjustified as to warrant forfeiture
of his entire share of the fee.*fn118
In his Affidavit, Figeroux essentially accused Louima of
committing perjury and CN&S of suborning that perjury.
Specifically, in paragraph 12 of the Affidavit, Figeroux accused
Scheck of "improperly influencing witness testimony . . . and
essentially telling the witnesses what to say." (Ex. 56 ¶ 12).
Not only does this Court find Mr. Scheck's denial of this
allegation completely credible, but the government witnesses who
testified all denied that they ever "asked [T&F] to put a stop to
this practice" or ever expressed a view that what Scheck was
doing in "`preparing'" witnesses was in any way improper. (Id.)
Neither Ms. Palmer nor Mr. Thompson agreed with Figeroux's claim
that Scheck was doing anything improper.
While this false charge, impugning Mr. Scheck's integrity and
alleging what is essentially criminal conduct on his part is a
serious one, this Court is even more troubled by the statement in
paragraph 14 of the Figeroux Affidavit: "After [the Tacopina
meetings], we observed a change in Abner's testimony regarding
. . . which officer Weise or Schwarz was present in the
bathroom while Volpe was assaulting Abner." (Ex. 56 ¶ 14). Not
only is there not a single shred of evidence in the record to
support this statement, but Figeroux admitted to the FBI that, at
the time it was made, Figeroux had never even read Louima's
prior testimony. (F. Tr. I at 145). The prosecutors, who were
intimately familiar with Louima's testimony and whose testimony
this Court credits, emphatically stated that Louima never waivered in either his testimony or in his
account of who was in the bathroom with Volpe; it was always the
Once he realized the serious nature of the charges he had made
against Louima, Figeroux attempted to back peddle, first during
his meetings with the FBI and the government prosecutors and then
with Mr. Fischetti. However, despite all these prior
opportunities to clarify what he meant by this statement in
paragraph 14, it was not until almost a year after the issue was
raised in Neufeld's Affidavit that Figeroux, at the hearing
before this Court, attempted to argue that the use of the word
"testimony" in his Affidavit was in error and that a better word
to use would have been Louima's "account."
Having listened to the testimony and observed Figeroux's
demeanor while testifying, the Court finds Figeroux's testimony
in this regard not worthy of belief. Not only did Figeroux never
file a corrected version of the affidavit, changing the word
"testimony" to "account," but his explanation given to the Court
was not even the same explanation that he gave to the FBI or to
Mr. Fischetti. Instead, in each instance, he waffled and gave
long convoluted statements about the investigation not proceeding
in the right direction and his own personal feelings that it was
Wiese and not Schwarz in the bathroom, causing the prosecutors to
declare in the first instance that he had recanted, a statement
he still vehemently denies. Yet when asked by both Mr. Fischetti
in his deposition and by Mr. Ross and this Court on several
occasions during the fee proceedings to describe what the change
was in Louima's "account," Figeroux could not do it. "I can't
pinpoint anything," he told Fischetti. (F. Tr. I at 108; Ex. 41
at 35). In this regard and others too numerous to detail, this
Court found Figeroux's testimony to be utterly incredible.
What compounded the problem, however, was Figeroux's final
effort, after being subjected to much questioning on this issue, to provide an explanation as to
the change in Louima's account. Specifically, he testified that
during an overnight break in the proceedings, he re-read the
notes from the meeting between CN&S and Tacopina. (F. Tr. II at
92-94). Suddenly, he recalled something that Louima had said
about the police making two stops on the way to the precinct and
his own belief that maybe the identity of the driver had changed.
(Id. at 95). Not only had Figeroux never mentioned this to the
FBI, to the government prosecutors, to Mr. Ross or to the Court
during the many hours of questioning focused on this very point,
but the government witnesses, when asked, denied that this was
even true. (See P. Tr. at 58; T. Tr. at 283-84). There was no
change in Louima's statements in this regard either.
Based on all of the circumstances and particularly this Court's
observations of Figeroux's demeanor during this testimony, I find
that he not only filed an affidavit with the Court that contained
at least one false statement, but that he perjured himself as
well during the fee proceeding. While this Court recognizes that
in the course of a highly charged, highly publicized case such as
this, the rivalry among counsel can be intense and reckless
things may be said, in this case, Figeroux overstepped the bounds
of both ethical and moral conduct by accusing his former client
of perjury in order to enhance his position in this fee dispute,
regardless of whether the ultimate issue is one of money or
reputation. Figeroux's reckless allegations of possible perjury
by Louima in the volatile circumstances of an impending criminal
trial where Louima was a key witness shocks the conscience of
this Court. Given his threat to Neufeld and Scheck that he would
"go to war" against Louima and "win at any cost" unless they
agreed to pay him his fee, coupled with his incredible testimony
at the hearing, leads this Court to recommend that Figeroux be
found to have forfeited any claim to fees based on his conduct.*fn119 However, because at the time Figeroux
performed work on behalf of Louima, he was a member of the firm
of Thomas & Figeroux, the firm is entitled to the value of his
services. Therefore, while the Court respectfully recommends that
Figeroux be found to have personally forfeited his right to
compensation for his services, his forfeited share should revert
to the firm, or, in this case, the Estate of Carl Thomas as
successor in interest to the firm.
H. Alleged Ethical Violations by CN&S and Rubenstein
The final issue remaining for this Court to address is T&F's
argument that CN&S' and Rubenstein's conduct justified their
forfeiture of fees in this case. Throughout the hearing, T&F
argued that the manner in which CN&S and Rubenstein became
employed by the Louimas violated the Disciplinary Rules.
Roper-Simpson has alleged that Rubenstein violated Disciplinary
Rule 2-103 in the manner in which he became involved in
representing Louima, and therefore should forfeit his fee. (R.S.
Post-Tr. Br. at 12-16). She contends that Rubenstein's account of
how he was contacted by members of Louima's family and then
happened to visit Pastor Nicolas on the same day as Dr. Compas is
not credible. (Id. at 12-13). Roper-Simpson questions why
Rubenstein was not contacted immediately by Louima's family since
he was at that time representing one of Louima's cousins, and
argues that Mr. Roy's testimony about his conversation with Dr. Compas is more
credible than that of either Dr. Compas or Rubenstein. (Id. at
14). Roper-Simpson contends that Rubenstein sought the assistance
of Dr. Compas in his efforts to secure retention by the Louima
family in violation of the Disciplinary Rules.
D.R. 2-103 prohibits an attorney from "solicit[ing]
professional employment" directly from a prospective client
"[b]y-in person or telephone contact." D.R. 2-103(a)(1), N.Y.
Comp. Codes R. & Regs., tit 22, § 1200.8. Moreover, while the law
is clear that an attorney may not enter into "a prior arrangement
between lawyer and layman for the recommendation of legal
business, or where there is the giving and receiving of any
compensation for such recommendation," People v. Schneider,
20 A.D.2d 408, 410, 247 N.Y.S.2d 623, 625 (1st Dep't 1964); see
also D.R. 2-103(B); In re Birman, 776 N.Y.S.2d 69, 70-71 (2d
Dep't 2004); People v. Hankin, 182 Misc.2d 1003, 701 N.Y.S.2d 778
(2d Dep't 1999); In re Weinberger, 259 A.D.2d 592,
20 N.Y.S.2d 339 (1st Dep't 1940), the Canons and Rules do not
"condemn the recommendation of lawyers to persons in a
personal, social or professional relationship, pre-existing the
making of the recommendation." People v. Schneider, 20 A.D.2d
at 411, 247 N.Y.S.2d at 626. Indeed, D.R. 2-103 explicitly states
that "a lawyer may solicit professional employment from a close
friend, relative, former client or current client." D.R.
2-103(a)(1), N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.8.
In this case, apart from Mr. Roy's hearsay testimony that Dr.
Compas told him that Rubenstein had asked for Compas' assistance,
there is no evidence to support Roper-Simpson's argument. Dr.
Compas specifically denied that Rubenstein had asked him to get
Rubenstein involved in the case. (Compas Tr. at 173-74). Not only
does this Court, having observed the testimony of all of the
witnesses, credit Dr. Compas' testimony, but the Court also
credits the testimony of Mr. Rubenstein who categorically denied that he sought out Dr. Compas in order
to influence Louima's family to retain him. (R. Tr. at 34).
Instead, Rubenstein's testimony is consistent with that of
Louima, who testified credibly that Rubenstein was invited to the
hospital by Louima's relatives, and retained there. (L. Tr.
12-14). Roper-Simpson's speculation that the events did not
happen this way because Rubenstein was not contacted immediately
by the family given their prior relationship is simply that
sheer speculation. Indeed, according to Rubenstein's testimony,
his office was contacted on August 11, 1997, the same day that
Thomas and Figeroux were contacted. (R. Tr. at 32). Given that
Louima's immediate concern at that time were the pending criminal
charges, it makes sense that Rubenstein's services as a civil
attorney may not have taken precedence, and according to both
Rubenstein and Figeroux, the lawyer sent by Rubenstein to the
hospital was turned away by Figeroux. Finally, Roper-Simpson's
own notes indicate that it was Dr. Compas who contacted
Rubenstein, thus undermining her own argument. (R.S. Tr. III at
23; Ex. 84).
Even if this Court were to find that Rubenstein reached out to
Dr. Compas seeking an introduction to the Louima family, that
alone, given Rubenstein's conceded prior relationship with the
doctor and the doctor's relationship with the Louima and Nicolas
families, would not constitute a violation of D.R. 2-103. Only if
it could be demonstrated that Rubenstein had a monetary
arrangement with Dr. Compas for the referral of clients would
such an introduction violate the rule. Here, no such arrangement
has been shown.
Accordingly, the Court finds nothing improper about the manner
in which Rubenstein entered the case.
T&F also argue that Cochran violated the ethical rules by
visiting Louima in the hospital without notifying T&F beforehand, in an effort to insinuate himself into
the case. However, this Court credits Louima's and Cochran's
testimony relating to the role of King Keno in arranging the
initial meeting between Cochran and Louima, and regarding
Louima's ultimate decision to retain CN&S. Louima made it clear
that he asked King Keno to reach out to Cochran and there has
been no testimony or other evidence to suggest that Cochran
solicited this call in any way. Indeed, Louima testified that he
asked Cochran to represent him, not vice versa. Moreover, this
Court credits Cochran's testimony that he notified Thomas prior
to visiting Louima in the hospital and told Thomas that Louima
had asked him to come. (C. Tr. I at 180-81). Thus, this Court
finds no ethical violations on the part of CN&S relating to their
initial retention by Louima.
T&F contend that as part of a campaign to exclude T&F, CN&S
conducted a "broad investigation" without advising T&F of its
scope, creating "practical and ethical concerns" for T&F. (T&F
Post Tr. Br. at 25-26). T&F also contend that CN&S failed to
inform the government that they had hired investigators and were
interviewing witnesses. (T&F Post-Tr. Br. at 23-26; T. Tr. at
249-50; P. Tr. at 71-73).
CN&S dispute these charges. Mr. Scheck testified that "[w]ith
the knowledge of [Thomas and Figeroux,]" it was agreed that they
would hire investigators. (S. Tr. I at 50). Among other things,
Neufeld and Scheck visited the scene with Figeroux. (Id. at
51). Moreover, according to Scheck, not only were T&F aware that
CN&S were pursuing their own investigation, but Palmer was aware
as well. (Id. at 50). She knew that the lawyers had to do their
own investigation but she did not want them to do a "full
canvass" of everyone in the area. (Id.)
Mr. Scheck testified that he believed it was "[n]to just
appropriate, [but] essential and necessary" for the lawyers to separately investigate the facts
surrounding Louima's case, "to make sure that anything that the
client says in any sworn proceeding, in any government
debriefing, is the truth." (Id. at 48). He explained that it
was not simply enough to tell your client not to lie because
sometimes clients "for reasons that are misguided their desire
to protect other people don't always tell the truth and don't
understand the importance of a full disclosure to the
government." (Id. at 49). CN&S was also concerned that the
government authorities might limit their investigation to the
Louima assault and not develop the information necessary to
pursue a conspiracy claim against the PBA. (Id. at 50).
T&F argue that although Ms. Palmer testified that she had no
objection to CN&S conducting an investigation into their pattern
and practice theory for the civil case, she was not aware that
CN&S had interviewed approximately 50 people who had been at the
Club Rendez-Vous that night. (T&F Post-Tr. Br. at 24; C. Tr. II
at 44). Similarly, Thompson testified that he was unaware that
investigators had been hired and that witness interviews were
being conducted by anyone other than the government. (T. Tr. at
T&F's position in this regard is puzzling. While in the body of
their brief they contend that the independent investigation by
CN&S created "ethical concerns" for T&F, they concede in a
footnote that there was nothing ethically improper about these
interviews, but that they simply created practical concerns for
the U.S. Attorney's Office. (Compare T&F Post Tr. Br. at 26
with 26 n. 17). T&F fail to demonstrate that the investigation
conducted by CN&S was in any way a violation of the Disciplinary
Rules, or that it hindered either the government's case or
Louima's civil case in any way. Based on all of the evidence,
this Court finds that there were no ethical violations committed
by CN&S in connection with their civil investigation that would
justify a forfeiture of fees. T&F contend that CN&S' failure to inform T&F of the Tacopina
meetings was a violation of a provision of the Agreement By and
Between Counsel, signed by the parties on October 6, 1997. That
agreement required any signatory to the agreement to "promptly
report to the other signatories" whenever there is "what
reasonably could be considered to be a significant oral
communication" in the Louima matter with a third party. (Ex. 60).
CN&S did not deny that these were significant meetings. (C. Tr.
II at 27-28; N. Tr. I at 135-36).
T&F further contend that CN&S' failure to inform T&F of the
Tacopina meetings was part of CN&S' plan to marginalize T&F and
increased T&F's suspicions regarding what other events may have
been occurring without their knowledge. CN&S contend that because
T&F did not learn of the meetings until after T&F had resigned,
these meetings could not be a basis for T&F's resignation and had
no impact on T&F's relationship with Louima. This Court agrees.
First, while Roper-Simpson testified that Thomas first learned of
the Tacopina meetings from Ken Thompson (R.S. Tr. I at 188),
Thompson testified that Thomas learned about the meetings from
newspaper accounts which were first published in November 1998,
long after T&F had withdrawn from the case. (T. Tr. at 285, 287).
Given that neither Thomas nor Figeroux ever mentioned the
Tacopina meetings to CN&S or complained about their exclusion
from these meetings until after they had withdrawn, their claim
that this breach of the agreement between counsel was so
significant as to cause T&F to withdraw and to warrant a complete
forfeiture of CN&S' fees rings hollow. Moreover, while CN&S'
failure to inform T&F of the meetings may have constituted a
breach of the agreement between counsel,*fn120 and may have hindered the prosecution's efforts to secure Wiese's
cooperation, it was not a violation of any ethical rules nor did
it violate any responsibility they had to their clients, the
Louimas. By contrast, T&F's continued statements to reporters, in
violation of Louima's orders, and in particular, the comments
accusing CN&S and Louima of ethical violations, were not only
direct violations of the Disciplinary Rules' prohibition on the
disclosure of client secrets but the disclosures clearly harmed
Louima, and possibly damaged his credibility.
In summary, this Court finds that T&F have failed to establish
any ethical misconduct on the part of CN&S or Rubenstein that
would warrant forfeiture of their fees.
In summary, this Court respectfully recommends that CN&S'
motion for an order forfeiting T&F's share in the fees due to
their unjustified withdrawal from the case be granted.
In the event the district court disagrees, it is respectfully
recommended that there be a significant reduction in T&F's fees
based on T&F's unwarranted disclosures of client secrets to the
press. This Court further recommends that, if they are to receive
any fees, T&F's fees be limited to $212,222.50, of which $35,000
be distributed to Roper-Simpson, and that Figeroux be denied any
right to share in those fees based on his conduct in connection
with this dispute.
Finally, this Court respectfully recommends that T&F's motion
to have CN&S forfeit their fees be denied.
Any objections to this Report and Recommendation must be filed
with the Clerk of the Court, with a copy to the undersigned, within ten (10) days of receipt
of this Report. Failure to file objections within the specified
time waives the right to appeal the District Court's order. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b); Small
v. Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d
The Clerk is directed to mail copies of this Report and
Recommendation to the parties.