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U.S. v. BRUMER

August 15, 2005.

UNITED STATES OF AMERICA
v.
MICHAEL BRUMER, Defendant.



The opinion of the court was delivered by: KIMBA WOOD, District Judge

OPINION & ORDER

Defendant Michael Brumer ("Brumer") moves for return of some or all of the $250,000 in attorneys' fees he paid to his former counsel, Joseph Tacopina ("Tacopina").*fn1 Brumer paid Tacopina a flat fee of $250,000*fn2 to defend Brumer in the above-captioned criminal matter. Brumer terminated Tacopina on May 14, 2004, over two years after he retained him.

Brumer argues (1) that he terminated Tacopina for cause, and thus that Brumer is entitled to a full refund of the entire fee he paid to Tacopina, or (2) that if the Court finds that Tacopina was not terminated for cause, the Court should apply quantum meruit, and require Tacopina to refund half of the fee.*fn3 The Court denies Brumer's motion, for the reasons stated below.

  The Court conducted an evidentiary hearing on Brumer's motion on April 1, April 4, April 28, April 29, and May 18, 2005. Both Tacopina and Brumer testified at the hearing. The Court also heard testimony from Chad Seigel, Tacopina's law associate; Lawrence Kobak, a podiatrist and attorney whom Brumer sought to use as an expert witness for his criminal case; Lawrence Klein, Brumer's co-defendant and former partner; Marty Teller, a former employee of Brumer; Henry Mazurek, Sarita Kedia, and Leslie Dubois, all current or former attorneys with the Shargel firm, which represented Lawrence Klein; and Sabrina Brumer, Brumer's daughter. On every point where Brumer, on the one hand, and Tacopina, Siegel, Mazurek, Kedia and Dubois, on the other hand, testified in conflict with one another, the Court finds the testimony of Tacopina, Siegel, Mazurek, Kedia and Dubois credible, and the testimony of Brumer incredible. The Court makes its credibility determination based on the demeanor of Brumer; the demeanor of Brumer's former attorneys Tacopina and Siegel; the demeanor of Klein's former attorneys Mazurek, Kedia and Dubois; and based on the inconsistencies and falsehoods in Brumer's testimony, most notably:

  1. Brumer himself now claims that he testified falsely under oath earlier in this case, on April 3, 2002, during his guilty plea allocution. (Tr. 105) Brumer testified on April 1 and April 4, 2005, that he is factually innocent of the crimes charged in this case (Tr. 128), notwithstanding his allocution to guilt on April 3, 2002, which was made pursuant to an April 2, 2002 written plea agreement. Brumer's claim that his plea allocution was completely false is belied by his unscripted admission to criminal conduct at the plea allocution (April 3, 2002 Tr. at 24), which Brumer now claims to have "made up" on the spot. (Tr. 213-14.)

  2. In preparation for the hearing on Brumer's motion, the Court ordered Brumer to submit an affidavit in support of any factual allegations made against Tacopina. Brumer swore in his March 31, 2005 affidavit that he had read all of his submissions regarding this motion and that they were true (Brumer Aff. ¶ 2), but the next day he testified that he had not read the submissions described in his affidavit, and that he could not attest to their truth. (Tr. 127, 151-52.)

  3. Although Brumer contended that he terminated Tacopina for refusing to prepare for a Fatico hearing (Brumer Aff. ¶ 5), Brumer later admitted that Tacopina never refused to prepare for a Fatico hearing. (Tr. 120.)

  4. Brumer admitted at the hearing on this motion that he had falsely sworn, in his July 23, 2001 financial affidavit, that he had fewer assets than he had in fact. Brumer admitted at the hearing on this motion that he had omitted, from his sworn statement of assets, that as of July 23, 2001, he owned a house, through a pension fund that was solely under his control, which house he later sold for $2.4 million. (Tr. 185-86). He admitted that he omitted that asset in order to obtain free representation (at a time when he expected to plead guilty rather than try the case). (Tr. 185-87.) Brumer explains the omission from his financial affidavit by stating that, at the time he swore to the truthfulness of the statements in his financial affidavit, he had no "liquid cash." (Tr. 186.) When Brumer later decided to go to trial, he used those undisclosed assets to retain a private attorney (Mr. Tacopina); Brumer paid Tacopina $200,000 from the proceeds of the sale of that house. (Tr. 187.)

  I. Termination for Cause

  Brumer claims that he terminated Tacopina for cause because Tacopina failed to properly investigate possible defenses, and because Tacopina failed, later, to prepare properly for a Fatico hearing.

  If Brumer terminated Tacopina for cause, Brumer would be entitled to a full refund of the fees paid to Tacopina, notwithstanding his retainer agreement with Tacopina. See Garcia v. Teitler, 2004 U.S. Dist LEXIS 13854, at *16. New York courts have not explicitly defined "cause," but the case law indicates that it would include misconduct, unreasonable laxness in pursuing the client's case, or other improper handling the case. Id. at *16-17.

  a. Failure to properly prepare the case

  Brumer contends that he plead guilty because he was "scared" to go to trial because Tacopina was not prepared for trial. (Tr. 75.) Brumer cites as his principal evidence of Tacopina's lack of preparedness for trial (1) Tacopina's alleged failure to prepare the appropriate expert witnesses (Tr. 71-74); Tacopina's alleged failure to investigate properly the provable loss amount (Tr. 288-90); and (3) Tacopina's lack of contribution to other defense work. (See Tr. 71.) Brumer claims that, as a consequence, he was forced to plead guilty, and was forced to agree to a loss amount of $10-20 million.

  The Court finds that Tacopina was very well prepared to go to trial. Tacopina testified, credibly, that he had been actively preparing for trial until the eve of trial. In his testimony, he displayed a detailed and nuanced understanding of the case, including the strengths and weaknesses of each possible strategy. When it was appropriate to consult with Dr. Klein's lawyers, he did so; in that process he and each attorney ...


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