1'X1T1-D STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ABNER EOUIMA and MICHELINE LOUIMA, Plaintiffs.
-against-

THIRD SUPPLEMENTAL SUMMONS IN A CIVIL ACTION

THE CITY OF NEW YORK (CITY); THE

98 CIV 5083 (SJ)

PATROLMEN'S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK (PBA); individually and in

their official capacity as New York City Police Officers -

JUSTIN VOLPE, CHARLES SCHWARZ, THOMAS

BRUDER, SERGEANT MICHAEL BELLOMO,

FRANCISCO ROSARIO, ROLANDO ALEMAN,

PETER BLAICH, JOSEPH O'BRIEN and JEREMIAH DALY;

individually, in their official capacities as New York City

Police Officers, and as PBA Delegates -THOMAS WIESE and

TIMOTHY LEE; in their official capacities as President of the PBA -

LOUIS MATARAZZO and PATRICK LYNCH; individually,

and in their official capacity as New York City Police

Officers, and in their official capacity as agents of the PBA -

MICHAEL IMMITT and ANTHONY ABBATE;

individually and in their official capacity as employees of

the Emergency Medical Service (EMS) for the City of New York -

WILLIAM PAGAN and FRANK BIRNBAUM; individually

and in their official capacity, JOHN DOES, police officers

and non-uniformed employees of the New York City Police

Department, the identity and number of whom is presently unknown;

individually and in their official capacity as New York

City Police Officers RICHARD ROES, supervisory police

officers of the City of New York, the identity and number

of whom is presently unknown; and individually and in

their official capacity as police officers and/or agents for

the PBA - WILLIAM WOES, agents for the PBA, the

identity and number of whom is presently unknown,

Defendants.

Louima v. City of New York -NY-001-001

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

x

ABNER LOUIMA and MICHELINE LOUIMA,

THIRD AMENDED

Plaintiffs,

COMPLAINT AND

JURY DEMAND

-against-

98 CIV 5083 (SJ)

THE CITY OF NEW YORK (CITY); THE

PATROLMEN'S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK (PBA); individually and in

their official capacity as New York City Police Officers -

JUSTIN VOLPE, CHARLES SCHWARZ, THOMAS

BRUDER, SERGEANT MICHAEL BELLOMO,

FRANCISCO ROSARIO, ROLANDO ALEMAN,

PETER BLAICH, JOSEPH O'BRIEN and JEREMIAH DALY;

individually, in their official capacities as New York City

Police Officers, and as PBA Delegates -THOMAS WIESE and

TIMOTHY LEE; in their official capacities as President of the PBA -

LOUIS MATARAZZO and PATRICK LYNCH; individually,

and in their official capacity as New York City Police

Officers, and in their official capacity as agents of the PBA -

MICHAEL IMMITT and ANTHONY ABBATE;

individually and in their official capacity as employees of

the Emergency Medical Service (EMS) for the City of New York -

WILLIAM PAGAN and FRANK BIRNBAUM; individually

^

and in their official capacity, JOHN DOES, police officers

^co §§

and non-uniformed employees of the New York City Police Department, the identity and number of whom is presently unknown;

-...':'•>;: o .' : - ~•

individually and in their official capacity as New York

• rr

City Police Officers RICHARD ROES, supervisory police

-~

officers of the City of New York, the identity and number

. ;

of whom is presently unknown; and individually and in

~T^i'/ *^*~

their official capacity as police officers and/or agents for

o-

the PBA - WILLIAM WOES, agents for the PBA, the

identity and number of whom is presently unknown,

Defendants.

Plaintiffs Abner Louima and Micheline Louima, by and through their attorneys,

denial of Mr. Louima's basic civil rights. Other culpable individuals and entities, however, have thus far been able to escape accountability for actions that were unconstitutional, tortious, and inhumane. 4. During the early morning hours of Saturday, August 9, 1997, Abner Louima was in the process of leaving the Rendez-Vous nightclub on Flatbush Avenue in Brooklyn when he was suddenly knocked to the ground outside the club by one or more police officers, assaulted, handcuffed, and put into a patrol car. En route to the 70th Precinct, the patrol car stopped twice: the first time Mr. Louima was beaten by defendants Thomas Wiese and Charles Schwarz, the second time, by defendants Justin Volpe, and Thomas Bruder. At that time, all of these defendants were uniformed, on-duty New York City police officers. Along with the beatings. Mr. Louima endured offensive insults directed at his race and his Haitian ethnicity. 5. By the time Mr. Louima arrived at the 70th Precinct his face had already been battered into a swollen, bloody pulp. Officers pulled down Mr. Louima's pants while he was standing before the desk officer. Naked from the-waistxtown-antlhis hands cuffed behind his back, Mr. Louima was then paraded through the precinct and taken into the bathroom. 6. In the bathroom, Schwarz helped restrain Mr. Louima while Volpe took a stick and shoved it into Mr. Louima's rectum so hard and deep that it ripped through

his colon, penetrated the barrier separating the colon from the bladder, and perforated the bladder. Defendant Volpe then removed the stick, which was covered with feces and blood, and shoved it into Mr. Louima's mouth, exhorting him to "eat your shit." 7. None of the several on-duty police officer defendants who were within earshot of Mr. Louima's cries of pain took any action to intercede and halt the torture, nor did any of them promptly report to their supervisors or other city or federal authorities what they had seen and heard. 8. Defendant Volpe was sufficiently confident that the officers present would not tell the truth that later in the morning he showed the feces-covered stick to them and bragged about the sexual assault. 9. Volpe told the one witness whom he could not count upon to remain silent about what had happened - Mr. Louima himself- that he and his family would be killed if any effort was made to tell authorities what had happened. 10. After the sexual assault, Mr. Louima was dragged from the bathroom, with his pants still down and his hands still cuffed behind his back,4o-a-heldmg cell, where he was kept for several hours before being brought to Coney Island Hospital for medical attention. During that interim period, none of the other officers or supervisory personnel at the precinct who were aware of Mr. Louima's physical injuries took appropriate action to investigate and report the use of excessive force

or to ensure prompt medical attention. 1 1. When Hmergcncy Medical Service (EMS) was finally summoned, Mr. Louima
defied the death threat that had been communicated to him - in the midst of a crowded police precinct house by the uniformed New York Police officer who had just sexually assaulted him - and told the medical technicians what had happened. But this was to no avail. Instead, the technicians delayed treatment and filed a false report, with the specific intent of assisting the police in covering up the true cause, nature and extent of Mr. Louima's injuries. 12. Throughout his recovery from surgery and treatment in intensive care, from admission on August 9th until false criminal charges were dropped on August 13l\ Mr. Louima was handcuffed to his hospital bed and guarded as a prisoner. 13. The conspiracy to cover up the savage attacks against Abner Louima began as he was being beaten in the patrol car on the way to the 70th precinct and spread quickly beyond the four officers to field sergeant Michael Bellomo and other officers back at the precinct.
r
14. The Patrolmen's Benevolent Association ("PBA") quickly became involved in theconspiracy to cover-up the officers' abominable conduct. Consistent with its
\ regular practice in cases of serious and violent criminal conduct by police officers, the PBA and its agents - all police officers themselves - acted affirmatively to prevent guilty parties' being brought to justice, a role that included helping the.

undetected and unpunished and honesty is actively discouraged.fWurfthe imposition of punitive damages against all defendants with the exception of the Cit\ and of appropriate equitable relief, plaintiffs hope to deter defendants and bring an end to this intolerable cycle of violence and silence.
JURISDICTION 21. This action is brought pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 1988; and
the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and the laws of the State of New York. Jurisdiction is founded upon 28 U.S. C. §§ 1331, 1343(1-4), and 2202. Plaintiffs further invoke the supplemental jurisdiction of this Court to adjudicate pendant state law claims pursuant to 28 U.S.C. § 1367. 22. Venue is proper in this district under 28 U.S.C. § 1391(b).
PARTIES 23. Plaintiffs Abner Louima and his wife, Micheline Louima, are residents of the City
of New York. Born in Haiti, Mr. Louima is a naturalized United States citizen and-acitizen .of the State of New York. 24. Defendant, City of New York (City), is a municipal corporation within the State of New York and the public employer of the police officers and Emergency Medical Services technicians named as defendants in this action. 25. Defendant, the Patrolmen's Benevolent Association of the City of New York

officer employed by the defendant City of New York: f. Defendant Francisco Rosario, at all relevant times, was a police officer
employed by the defendant City of New York; g. Defendant Rolando Aleman, at all relevant times, was a police officer
employed by the defendant City of New York; h. Defendant Peter Blaich, at all relevant times, was a police officer
employed by the defendant City of New York; i. Defendant Joseph O'Brien, at all relevant times, was a police officer
employed by the defendant City of New York; j . Defendant Jeremiah Daly, at all relevant times, was a police officer
employed by the defendant City of New York; k. Defendant John Does, at all relevant times, were police officers and non-
uniformed police employees of the defendant City of New York, the identity and number of whom is presently unknown; 1. Defendant Richard Roes, at all relevant times, were supervisory police personneiof the defendant City of New York , the identity and number of whom is presently unknown; m. Defendant Michael Immitt, at all relevant times, was an agent of the PBA acting under its directives and a police officer employed by the defendant City of New York;
10

NOTICE OF CLAIM 30. Plaintiffs, in furtherance of their state causes of action, filed timely notice of claim
against the City in compliance with General Municipal Law Section 50. 3 1. More than 30 days have elapsed since service of said notice, and the City has
failed to pay or adjust the claim. 32. By stipulation, the City has agreed to dispense with the need to hold a 50-h
examination of plaintiffs in advance of commencing this lawsuit. 33. This action has been commenced within one year and ninety days after the
happening of the events upon which these claims arise.
FACTUAL AND GENERAL ALLEGATIONS
34. During the early morning hours of Saturday August 9, 1997, Abner Louima was in the process of leaving the Rendez-Vous nightclub on Flatbush Avenue in Brooklyn when he was suddenly, without legal cause, knocked to the ground outside the club by one or more police officers. Mr. Louima had not committed any criminal offense.
35. On the ground, one_or more officers continued to assault him, his hands were cuffed behind his back, and he was placed in the rear of a radio motor patrol car.
36. While Mr. Louima lay on the ground, his cousin, Jay Nicolas, upset by the treatment Mr. Louima was receiving from police, struck defendant Volpe in the back of the head. Although Mr. Louima did not and could not have thrown that
12

were pulled down, leaving him naked from the waist down. It is believed that Blaich completely ignored the obvious injuries and stripping of Mr. Louima and that, later on. Blaich failed to take appropriate action to investigate and report the incident. 41. In this half-clothed state, Mr. Louima was then paraded through the precinct and taken into the bathroom. 42. In the bathroom, Schwarz and Volpe administered summary punishment. Schwarz held the handcuffed Mr. Louima while Volpe took a stick and shoved it into Mr. Louima's rectum with sufficient force to tear through his internal organs. 43. Volpe then removed the stick, which was covered with feces and blood, and shoved it into Mr. Louima's mouth, exhorting him to "eat your shit." The defendants called him "nigger" and peppered their commands with additional ethnic and racist slurs. 44. At some point in the midst of this torture, defendant Schwarz, attempting to silence Mr. Louima's cries of pain, placed his booted foot on Mr. Louima's face. 45. During the course of the torture in the station house bathroom, on information and belief, defendant Wiese planted himself outside the bathroom door as a lookout, a role that included his opening the closed bathroom door to see what his colleagues were doing to Mr. Louima. 46. Mr. Louima was told that if he told anyone what had been done to him, he and his
14

family would be killed. 4". After the torture, defendant Volpe displayed the stick to other police officers at the
precinct and bragged to them about what he had done. 48. Mr. Louima was dragged from the bathroom, with his pants still down and his
hands still cuffed behind his back, to a holding cell. He was placed in the cell with his hands still cuffed and his pants still down. 49. Defendants Rosario, Aleman, and, on information and belief, defendants Daly and O'Brien were in the 70lh Precinct at the time these events were occurring, and observed and/or heard portions of what had happened but failed to intercede and/or report it to supervisory personnel and later, when questioned by Internal Affairs, gave false and misleading statements. 50. The force used in the street, in the patrol car, and inside the precinct bathroom was unnecessary, unreasonable, and excessive. 51. At no time during the events described above did the defendant officers have probable cause for the arrest of Mr. Louima and there was no legal cause or excuse for his seizure. 52. Defendant Volpe has pleaded guilty for his role in the beating of Mr. Louima when defendants Schwarz and Wiese stopped their police cruiser en route to the 70th Precinct. 53. Defendant Volpe has also pleaded guilty for his role in the torture of Mr. Louima
15

in the bathroom of the 70"1 Precinct, and defendant Schwarz has been convicted b\ a federal jury for his role in the conspiracy to deprive Mr. Louima of his civil rights - including the torture in the bathroom. 54. Defendants Volpe, Bruder, Schwarz, Wiese, Bellomo, Blaich, Daly and O'Brien and John Doe officers and non-uniformed personnel were aware of the beatings and/or torture but failed to report it promptly and failed to protect Mr. Louima while in custody. 55. Under the oath of office and the written rules and regulations promulgated by the NYPD, line officers and command personnel have an affirmative duty to intercede and prevent crimes and other misconduct committed by officers and to report such conduct whenever they become aware of it. 56. According to Patrol Guide Interim Order 3, "[a]ll members of the service have an absolute duty to report. . . serious misconduct of which they become aware." Specifically, upon observing or becoming aware of corruption or misconduct or an allegation thereof, all police officers must, among other things, promptly telephone Internal Affairs and, within 24 hours, must provide Internal Affairs with a detailed written report setting forth what they know concerning other officers' misconduct. The Order, which was originally issued in January 1995, further provides that "[c]onduct designed to cover up acts of corruption, prevent or discourage its report or intimidate those who would report it will be charged as an
16

obstruction of justice or other criminal act." 57. Defendants Volpe. Schwarz. Wicse and Bruder made no effort to prevent the
beating and torture of Mr. Louima and have made ever}' effort - continuing up to the present - to conceal from authorities the truth about what actually occurred. Schwarz, Wiese, and Bruder have been convicted on federal obstruction of justice charges, based on their conduct and lies told to thwart a federal grand jury investigation, as part of their ongoing effort to protect themselves from being held accountable for their criminal conduct. 58. Defendant Aleman has pleaded guilty to charges of obstructing justice, arising, inter alia, from lies he told to law enforcement investigating Mr. Louima's abuse. Defendant Rosario, who was Aleman's partner, has been convicted on similar charges. 59. Defendant Rosario has admitted under oath that he lied to Internal Affairs and that he was pressured by the PBA and its representatives not to come forward with information that would incriminate Volpe, Schwarz, Wiese and others. 60. Mr. Louima asked John Doe police officers and/or non-uniformed personnel who appeared in the cell room for medical help, but received no assistance for a long time. 61. Defendants Volpe, Bruder, Schwarz, Wiese, Bellomo, Blaich and John Doe officers and non-uniformed employees knew, or with due diligence should have
17

indifference, declined to give immediate medical treatment for the acute trauma. 66. As a direct and proximate result of Birnbaum and Pagan's deliberate indifference.
Mr. Louima's physical and psychological pain and suffering were significantly exacerbated. 67. Mr. Louima was eventually taken by EMS ambulance to Coney Island Hospital. It is believed that John Doe officers who accompanied the ambulance failed to communicate the true nature and extent of the injuries to hospital personnel, causing Mr. Louima further delay in treatment and additional pain and suffering. 68. Throughout his recovery from surgery and treatment in intensive care, from admission on August 9th until false criminal charges were dropped on August 13th, Mr. Louima was handcuffed to his bed and guarded as a prisoner. 69. The conspiracy to cover up the savage attacks against Abner Louima began as he was being beaten in the patrol car on the way to the 70th precinct and spread ' quickly beyond the four officers and sergeant Bellomo to the John Doe officers at the precinct who had some awareness of the brutality but failed either to intercede or report j t \ 70. In the days after the attack - before any effort was made to interview Volpe, Schwarz, Wiese, or Binder - scores of telephone calls were exchanged, at all hours of the night, among these individuals and between them and Anthony Abbate, a former 70th Precinct officer and PBA delegate, who had recently been
19

thrown off the force for. among other things, lying at a departmental trial that had been conducted at a time when he was on probation for past acts of physical abuse , oPervilians. [_yl\{ It is believed that defendant PBA quickly became involved in the conspiracy and
lugh its agents, played a significant role in advancing the cover-up. When defendant Wiese, himself a PBA representative, and defendants Volpe, Schwarz, and Bruder came under suspicion, they met with union representatives who are also police officers. On information and belief, the union's agents, including defendants Michael Immitt and Williams Woes, conferred with the offending officers and received incriminating admissions of criminal behavior. Instead of coming forward and promptly reporting this information as they are obligated to do as police officers, the PBA and its police officer agents suppressed it and instead, adopted and orchestrated an affirmative strategy of obstruction and falsification. 72. On Wednesday August 13, defendant Wiese, in his capacity as PBA delegate for the 70th Precinct, convened a meeting in the basement of the station house that was \ attended by the four defendants most directly implicated in the physical abuse of Mr. Louima, along with Michael Immitt, the highest-ranking PBA officer in South Brooklyn, and other PBA agents. On information and belief, the purpose of this meeting was to devise a common story, inconsistent with the truth, about what had
20

happened. On information and belief, the participants also discussed ways to defame and publicly humiliate Mr. Louima, in the hope that he would be deterred from pressing charges against them and that tne credibility of any testimony he ultimately did give would be diminished. 73. It was these defendants' intention, on information and belief, to devise a version of what had happened that would not be disproved if the other officers who had been in the 70th precinct did not come forward and cooperate with investigating authorities. 74. On information and belief, among the subjects discussed at the August 13 meeting was a plan to claim that Mr. Louima had sustained his injures, not as a result of defendants' vicious assault, but rather through consensual homosexual activity. Pursuant to this plan, defendants launched a sustained campaign to falsely inform other officers, the news media, and, ultimately, law enforcement authorities, that the Rendez-Vous nightlclub catered to a homosexual clientele and that Mr. Louima's wallet had contained an advertisement for an "all-male" revue and to insinuate that hisJjyuriesja!exe.ihexesult of consensual sexual activities. 75. In the ensuing days, defendant Immitt appeared at the morning, afternoon, and midnight roll calls for the 70th precinct, on information and belief, to personally urge all officers to maintain silence in the face of investigators' inquiries. 76. Immitt and PBA delegate Timothy Lee then undertook to deter individual officers
21

encourages the "blue wall" is the "48 hour rule" codified in the Patrol Guide. Section 1 18-9. The section requires that an officer subject to an official investigation be given two business days' notice before being interrogated. An officer who is merely a witness to another officer's criminal conduct must be given four hours before the commencement of questioning. Although the Patrol Guide language is limited to administrative investigations and should in theory have no adverse impact on criminal investigations, it is believed that the custom is to apply the rule to criminal investigations, as well. Hence, as a rule, no police officer suspected of criminal wrongdoing gets questioned by anyone in law enforcement for at least two days. 81. On information and belief, it is the practice of the City to grant the PBA a substantial role in deciding which officers are to be treated as "witnesses" and which are to be treated as "suspects," a power that lends itself to serious abuse when, as here, the PBA is intent on thwarting a criminal investigation. It is believed that in this case the PBA denominated as "suspects" - not witnesses many, if not all, of the officers who were merely present at the 70th precinct. 82. In this case, notwithstanding the fact that NYPD's Internal Affairs Bureau had been alerted about the torture by Sunday August 10 and initiated an official investigation on that date, no officer (witness or suspect) was questioned until Wednesday August 13. Consistent with the City's practice not to question police
23

officer suspects at all, no attempt, was ever made to question Volpe. Wiese, and Schwaiv.. and the first effort to make contact with defendant Brudcr was one week after the incident. One consequence of the custom of deliberate delay and avoidance, implemented only for police targets of investigation, is the window of opportunity for the destruction of evidence, the creation of cover stories, and the pressuring of witnesses. For instance in this case: a. The stick used by defendant Volpe was removed from the crime scene; b. It is believed that potentially inculpatory evidence was removed from the
lockers of defendants; and c. Informal meetings, including the PBA-initiated gathering in the 70th
Precinct basement, were convened for the purpose of preventing the truth about the wrongdoing from coming to light. d. Scores of phone calls were made between and among the officers involved and the PBA agents, in an effort to assure that if and when the officers ultimately were.questioned by. investigators, they would give the/same exculpatory - and false - version of what had happened. 84. The actions of all individual defendants were performed within the scope of their employment and authority, for whose acts the defendants City and PBA are liable under the doctrine of responded superior.
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85. The actions of the defendant officers and EMS technicians violated Mr. Louima's clearly established rights under the First, Fourth. Fifth, and Fourteenth Amendments of the Constitution and were the direct and proximate cause of the physical and psychological injuries he suffered.
86. The actions of all defendants were intentional, malicious, and in bad faith, thus giving rise to punitive damages as to all defendants with the exception of the municipality. DAMAGES
87. As a direct and proximate result of the said acts of the defendants, Mr. Louima suffered the following injuries and damages: a. Violation of his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the Constitution; b. Loss of physical liberty; c. Life threatening physical injuries, pain and suffering, extreme fear, emotional trauma, requiring the expenditure of money for treatment expectedJtoiasLlhe. rest of his life; d. Economic damages including loss of income; and e. Humiliation, embarrassment, and injury to reputation. The physical, psychological, and economic consequences of the defendants' actions continue to date, and upon information and belief, will continue into the
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future. CAUSES OF ACTION COUNT I
42 U.S.C. § 1983 CONSPIRACY 88. Paragraphs 1- 87 are incorporated by reference as though fully set forth. 89. Defendants Volpe, Schwarz, Wiese, and Bruder, under color of law, conspired
with one another to deprive Mr. Louima of his constitutional rights, including the rights: to be free from the intentional use of unreasonable force; to be free from unreasonable searches and seizures; to associate and speak freely; to have access to and seek redress in the courts; and to be free from false arrest, false imprisonment, and the delay and denial of medical attention. 90. It was part of the conspiracy that the defendants Volpe, Schwarz, Wiese, and Bruder did, among other acts, physically assault Mr. Louima while his hands were cuffed behind his back and while he was in police custody 91. In furtherance of the conspiracy and in order to cover up the acts of brutality, defendants engaged in.theJbllQwing:.-.- _ a. Falsely arresting and imprisoning Mr. Louima; b. Fabricating and contriving criminal charges lodged against Mr. Louima; c. Although they were aware of the brutality, and were required to report it
immediately, deliberately suppressing the truth; and
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d. Submitting false police reports, statements, and testimony to support and corroborate the fabricated charges lodged against Mr. Louima to insulate Volpe, Schwarz, Wiese, and Bruder from administrative and criminal sanctions;
e. Lying to authorities concerning the patrol car stops on the way to the precinct;
f. Meeting and telephoning one another regularly in the week following their actions, in an effort to share information concerning the state of the investigation and present a united front in the face of any questioning. COUNT II 42 U.S.C. § 1983 CONSPIRACY
92. Paragraphs 1-91 are incorporated by reference as though fully set forth. 93. The individual defendants did, under color of law, conspire with one another and
with the PBA, to deprive Mr. Louima of his constitutional rights, including the rights to be free from unreasonable seizure; to associate and speak freely; and to have access to and seek redress #ent4he-ceurtsr94. In furtherance of this conspiracy to cover up the acts of brutality that occurred in the police car and at the precinct house, defendants engaged in the following: a. Jointly devising a false, exculpatory version of the events of August 9th,
which would be told to investigating authorities;
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b. Enlisting the aid of Abbate, a disgraced, former officer (and PBA delegate) in orchestrating a cover-up;
c. Refusing to come forward with evidence and information that would incriminate the individuals involved, in violation of individual defendants' sworn duty as police officers;
d. Discouraging individual witnesses from speaking truthfully to investigators and intimidating and defaming those individuals who did answer investigators' questions;
e. Knowingly giving false statements to departmental investigators, federal investigators, federal grand juries, and federal courts;
f. Circulating false and defamatory information concerning Mr. Louima, in an effort to discourage him from telling authorities and courts the truth about what was done to him and to diminish the credibility of any information and testimony he did give. COUNT III
42 U.S.C. § 1983 -UNREASONABLE AND EXCESSIVE FORCE 95. Paragraphs 1-94 are incorporated by reference as though fully set forth. 96. By their conduct, defendants Volpe, Schwarz, Wiese, and Bruder, under color of
law, deprived Mr. Louima of his constitutional right to be free from excessive and unreasonable force.
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97. Mr. Louima claims damages for the injuries set forth above. COUNT IV
42 U.S.C. § 1983 - FALSE ARREST AND IMPRISONMENT 98. Paragraphs 1- 97 are incorporated by reference as though fully set forth. 99. By their conduct and under color of law, defendants Volpe, Schwarz, Wiese,
Bruder, and Bellomo deprived Mr. Louima of his constitutional right to be free from false arrest and false imprisonment. 100. Mr. Louima claims damages for the injuries set forth above.
COUNT V 42 U.S.C. § 1983 - DELAY AND DENIAL OF MEDICAL TREATMENT AND FAILURE TO PROTECT WHILE IN CUSTODY 101. Paragraphs 1-100 are incorporated by reference as though fully set forth. 102. By their conduct and under color of law, defendants Volpe, Schwarz, Wiese, Bruder, Bellomo, Blaich, Daly, O'Brien, Pagan, Birnbaum, and John Doe officers acted with malicious or at least deliberate indifference in failing to protect Mr. Louima from violence while in police custody and in failing to secure the medical attention required for his serious injuries, in a manner that deprived him of his constitutional rights and perpetuated and exacerbated his physical and mental pain and suffering.
COUNT VI 42 U.S.C. § 1983 - FAILURE TO INTERCEDE
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103. Paragraphs 1-102 are incorporated by reference as though fully set forth. 104. By their conduct and under color of state law, it is believed defendants Volpe,
Schwarz, Wiese, Bruder, Bellomo, Blaich, Rosario, Aleman. Daly, O'Brien, and John Doe officers each had opportunities to intercede on behalf of Mr. Louima to prevent the excessive use of force and unreasonable seizure but due to their intentional conduct or deliberate indifference declined or refused to do so. 105. As a direct and proximate result, Mr. Louima suffered the injuries and damages described above.
COUNT VII 42 U.S.C. §1983 - FIRST AND FOURTEENTH AMENDMENT VIOLATIONS 106. Paragraphs 1-105 are incorporated by reference as though fully set forth. 107. By their conduct and under color of law all individual and John Doe officers, and the PBA, acting under color of law, deprived Mr. Louima of his First and Fourteenth Amendment rights to have access to and seek redress in the courts. 108. The defendants engaged in a cover up in order to conceal the wrongful and unlawful conduct taken against Mr. Louima. 109. The defendants' efforts to conceal the truth continue to the detriment of Mr. Louima. 110. As a direct and proximate result, Mr. Louima suffered the injuries and damages described above.
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COUNT VIII 42 U.S.C. § 1985(3) CONSPIRACY WITH RACIAL ANIMUS 111. Paragraphs 1-110 are incorporated by reference as though fully set forth. 112. The individual defendants, under color of law, conspired with each other and with the PBA, to undertake a course of conduct to injure, oppress, threaten, and intimidate Abner Louima in the free exercise and enjoyment of the rights and privileges and equal protection of the law secured to him by the Constitution.. 113. The conduct of the defendants was motivated by racial animus and by their desire to injure, oppress, threaten, and intimidate Abner Louima because of his race, African-American, and because of his birthplace, Haiti. 114. Defendants' racial and ethnic animus was expressed in racially and ethnically insulting remarks directed at Mr. Louima. 115. It was part of the conspiracy that defendants Volpe, Schwarz, Wiese, and Bruder did, among other acts, physically assault Mr. Louima while his hands were cuffed behind his back and while he was in police custody. 116. In furtherance-!) f the conspiracy^ and to conceal the crimes and misconduct of Volpe, Schwarz, Wiese, Bruder and all the other defendants, with the exception of the municipality, engaged in a cover up. 117. The PBA, through its agents, was a willful participant in joint action with officers acting under color of law.
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118. As a proximate and direct result of defendants' conduct, Mr. Louima suffered the injuries and damages described above. COUNT IX
42 U.S.C. § 1985(3) CONSPIRACY TO HINDER PROVISION OF EQUAL PROTECTION
119. Paragraphs 1-118 are incorporated by reference as though fully set forth. 120. The individual defendants conspired with each other and with the PBA for the
purpose of hindering and preventing the constituted authorities of the State of New York from securing and providing Mr. Louima equal protection of the laws. 121. In furtherance of the conspiracy, and to conceal the crimes and misconduct of Volpe, Schwarz, Wiese, and Bruder, all the defendants, with the exception of the municipality, engaged in a cover up. 122. Among the actions taken in furtherance were false statements made to internal affairs investigators, a wholesale abdication of officers' legal duty to report incriminating evidence to proper authorities - a default encouraged by defendant PBA - attempting to intimidate and defame those who did report to Internal Affairs; and directly and indirectly discouraging Mr. Louima from testifying. 123. As a proximate and direct result of defendants' conduct, Mr. Louima suffered the injuries and damages described above.
COUNT X 42 U.S.C. § 1985(2) CONSPIRACY TO IMPEDE DUE COURSE OF JUSTICE
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124. Paragraphs 1-123 are incorporated by reference as though fully set forth. 125. Each of the individual defendants conspired, along with the PBA, to impede the
due course of Justice in New York State, with the intent of denying Mr. Louima the equal protection of the laws. 126. As a proximate and direct result of defendants' conduct, Mr. Louima suffered the injuries and damages described above.
COUNT XI 42 U.S.C. § 1985(2) CONSPIRACY TO OBSTRUCT FEDERAL JUSTICE 127. Paragraphs 1-126 are incorporated by reference as though fully set forth. 128. The individual defendants conspired with one another and with the PBA to
obstruct the investigation of a federal grand jury and to deter witnesses from giving testimony in a federal proceeding. 129. Defendants Schwarz, Wiese, Bruder and Rosario stand convicted of having obstructed justice, and defendants Aleman and Volpe have pleaded guilty to that charge. 130. On information and-belief, defendant-Tmrnkt-encouraged all police officer witnesses to maintain silence if approached by State or federal investigators. 131. On information and belief, PBA agents, including defendants Michael Immit and Timothy Lee, sought to deter and intimidate witnesses who might give truthful testimony that would inculpate the individual police officer defendants and to tip
33

off targets and help them modify their false, exculpatory stories when these efforts to discourage truthful testimony did not completely succeed. 132. On information and belief, the PBA, though its agents, continues to deter and discourage police officer witnesses from testifying truthfully in federal court about, among other things, the substance of the discussion in the basement and about the role of defendant Schwarz - whose guilt beyond a reasonable doubt has been found by two federal criminal juries. 133. Defendants waged a sustained, extralegal campaign to cause Mr. Louima emotional distress so that he would be deterred from testifying truthfully in this and other federal proceedings. 134. As a proximate and direct result of defendants' conduct, Mr. Louima suffered the injuries and damages described above.
COUNT XII 42 U.S.C. § 1986 ACTION FOR NEGLECT TO PREVENT 135. Paragraphs 1-134 are incorporated by reference as though fully set forth. 136. On information and belief; the-indivkhtai named defendants, John Doe defendants, William Woe defendants, and the PBA had knowledge that a 42 U.S.C. § 1985(3) conspiracy was in progress, had the power to prevent or aid in preventing the conspiracy from continuing, and neglected or refused to do so. 137. With reasonable diligence, defendants could have promptly reported the brutality
34

to superiors and to duly authorized investigators. Their failure contributed to Mr. Louima's suffering gratuitously before medical care was obtained for him and for his remaining under arrest, guarded, and handcuffed throughout the first four days of surgery, intensive care and hospitalization, thereby exacerbating his pain and suffering. 138. Had the individual defendants and PBA agents complied with the law and furnished truthful information to authorities investigating the brutality in the police car and the precinct house, the § 1985(3) conspiracy would not have succeeded to the extent that it did and continues to. 139. As a proximate and direct result of defendants' conduct, Mr. Louima suffered the injuries and damages described above.
COUNT XIII 42 U.S.C. § 1983 SUPERVISORY LIABILITY 140. Paragraphs 1-139 are incorporated by reference as though fully set forth. 141. Defendants Bellomo and Richard Roes were, at the relevant times, supervisory personnel at the 7Qth^reeinct or in the-N¥PBrwith oversight responsibility for line officers Volpe, Schwarz, Wiese, Bruder, and Bellomo. They were responsible for the training, instruction, supervision, and discipline of the four officers who brutalized Mr. Louima and for Sergeant Bellomo, an accessory after the fact.
35

142. h is believed that these defendants received complaints about the conduct of Volpe. Schwarz, Wiese, Bruder, Bellomo, and other officers in the 70th precinct, knew about past complaints, aberrant behavior, and disciplinary infractions, or, in the exercise of due diligence, would have perceived that these officers had conduct and disciplinary problems that posed a pervasive and unreasonable risk of harm to Mr. Louima.
143. These defendants knew, or in the exercise of due diligence would have known, that the conduct of Volpe, Schwarz, Wiese, Bruder, and Bellomo against Mr. Louima was likely to occur.
144. It is believed that these defendants failed to take preventative and remedial measures to guard against the brutality and cover up committed by Volpe, Schwarz, Wiese, Bruder, and Bellomo. Had they taken appropriate action, Mr. Louima would not have been injured.
145. For example, the Police Department received a number of complaints concerning defendant Volpe's excessive use of force on civilians. Although the Police Department investigators-pronounced aH-ofthese unfounded, an independent review of the cases, conducted by the U.S. Attorney's Office in conjunction with its criminal proceeding against these defendants, found more than one of them to have merit.
146. The Police Department also failed to take any corrective or disciplinary action
36

against defendant Schwarz, who had testified untruthfully at a departmental hearing in an unsuccessful attempt to help defendant Abbate - himself the object of more than two dozen civilian complaints - remain on the force. 147. The failure of these individual defendants to supervise and discipline Volpe, Schwarz, Wiese, Bruder, Bellomo and the other officers of the 70th precinct amounted to gross negligence, deliberate indifference, or intentional misconduct which directly caused the deprivations suffered by Mr. Louima.
COUNT XIV 42 U.S.C. § 1983 - SYSTEMIC CLAIM AGAINST CITY AND PBA 148. Paragraphs 1-147 are incorporated by reference as though fully set forth. 149. Prior to August 9, 1997, the City, acting at the behest of and in close conjunction with the PBA, has developed andjnaintained policies and customs exhibiting deliberate indifference to the constitutional rights of its citizens, which caused the violations of Mr. Louima's rights. 150. It was the policy and/or custom of the City to investigate inadequately and improperly civiliaR-compteiftts of poliee-miseonduct and to punish inadequately those complaints which were substantiated. Instead, acts of brutality were tolerated by the City. The Internal Affairs Bureau (IAB) and the Civilian Complaint Review Board (CCRB) have substantially failed in their responsibilities to investigate misconduct and discipline transgressors. Since the'
37

CCRB became independent in 1993, through December 1996 it received 18,336 complaints, yet the NYPD dismissed only one officer as a result of a CCRB investigation. 151. IAB investigations of brutality rarely lead to administrative trials and, in the rare instances that charges are sustained administratively, the punishment is minimal, lacking any deterrent effect. Since there is no disciplinary sanction available between thirty days' suspension and dismissal, and dismissal is almost always deemed too harsh, even the most brazen acts of brutality, short of. murder, are resolved with a slap on the wrist. 152. The City has been on notice for more than a generation that brutality is widespread and that particular reforms need to be implemented. From reformminded Commissioner Patrick Murphy to the Mollen Commission twenty-five years later, the City has been repeatedly cautioned that a systemic tolerance for brutality flourishes throughout the NYPD. Three years before Mr. Louima was brutalized, the Mollen Commission report noted, "This tolerance,, or willful blindness, extends -to-supervisors-as-weti-.-This-is because many supervisors share the perception that nothing is really wrong with a bit of unnecessary force and because they believe that this is the only way to fight crime today." "Such practices," the Commission warned, "should sound an alarm throughout the [Police] Department." 1
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investigations, it is the City's custom to follow the rule in criminal investigations, as well. Moreover, while the 48-hour delay is expressly limited to targets - with mere witnesses accorded a four-hour grace period - the custom, is to allow the PBA and its representatives considerable input in deciding who is a target and who is a witness. 157. As a matter of practice, the City often takes more than 48 hours to interview officers suspected of or believed to have witnessed excessive force or other serious criminal conduct. As was the case here, the first witness to be questioned pursuant to the Patrol Guide was on August 13, four days after the events had transpired and three days after the IAB was aware of the torture and after the conspiracy to obstruct justice had gathered full steam. 158. Moreover, even when police officers are interviewed under the Patrol Guide, they are not giving sworn testimony, and they are granted complete immunity including for perjury. 159. With respect to those police officers who are suspects in - and not merely witnesses to ~ serious misconduct: it is the-Gity^s practice never to question them, an approach that differs drastically from that employed when the police investigate crimes where the suspects are civilians (or are City employees other than police officers). In cases where the police are trying to bring a civilian suspect to justice, it is common to make prompt contact with the individual and to
40

see what information about the crime he or she will volunteer. In this case, no such effort was ever made to question Volpe, Schwarz, or Wiese, and the first time Bruder was interviewed was a week after the beating and torture. 160. These policies operate to insulate police officers who engage in criminal or other serious official misconduct from detection, prosecution, and punishment, and are maintained with deliberate indifference to that obvious and widely known effect. 161. Police officers of the City of New York have for years engaged in a pattern and practice of actively and passively covering up the misconduct of fellow officers by failing to come forward or failing to accurately give evidence as to misconduct of which they are aware, thereby establishing and perpetuating a "code of silence*"162. This "code of silence" is a custom so deeply ingrained in the New York City Police Department so as to constitute the policy of the City of New York. 163. The City has been deliberately indifferent to the need for more or different training, rules and regulations relating to police officers who witness or have information regarding misconduct by fellow officers. The City has failed to properly sanction-or disdplioe-Gfikers-who-^iFe-aware of and subsequently conceal and/or aid and abet violations of constitutional rights of citizens by other New York City police officers, thereby causing and encouraging New York City police officers, including the individual defendant officers in this case, to violate the rights of citizens such as Mr. Louima.
41

164. Once again, the City was on notice about this problem for decades, and it had been an important area of focus for the Mollen Commission, which specifically found that the tactics of the PBA and other unions "put[] immense pressure on the guiltless officer - who may want to answer questions - not to stray from the common practice of abiding by union advice and remaining silent"; that "PBA delegates and attorneys help reinforce the code of silence," and that "the PBA often acts as a shelter and protector of the corrupt cop, rather than as a guardian of the interests of the vast majority of its membership, who are honest police officers."-
165. ft is believed the City has maintained no system or an inadequate system of review of officers who withhold knowledge or give false information regarding misconduct by fellow officers. This failure to identify and track such officers, lrtciudhig the defendant officers, or to discipline, more closely supervise, or retrain such officers who engage in the "code of silence," causes New York City police officers to believe that they can engage in misconduct, secure in the knowledge that their fellow offlcer^willa^dth^r-intervefl&Ror-give-evidence against them. These systemic deficiencies include, but are not limited to: a. Preparation of investigative reports designed to vindicate the conduct of officers who gave false information about the misconduct of other officers, or who falsely denied knowledge about misconduct which they were in a
42

position to observe; b. Preparation of investigative reports which uncritically rely solely on the
word of police officers and which systematically fail to credit testimony of non-police witnesses. c. Preparation of investigative reports which omit or ignore factual information and physical evidence which contradict the accounts of police officers; d. Issuance of public statements exonerating officers involved in such incidents prior to the completion of investigation; e. Failure to have meaningful review of investigative reports by responsible superior officers for accuracy or completeness, including consideration of the conduct of officers who were not actively engaged in the misconduct which was the subject of the investigation, and acceptance of conclusions which are not supported by the evidence or which contradict such evidence; and f. Failure to identic-potential "code-of silenee" violations and maintain accurate records of allegations of such misconduct. 166. The City, prior to and at the time of this incident, was aware of the need for more or different training, rules, regulations, investigation and discipline relating to police officers who practice the "code of silence," and was deliberately indifferent
43

to that need. 167. The foregoing acts, omissions, systemic deficiencies and deliberate indifference to
the danger of harm to citizens such as plaintiff and the need for more or different training and discipline are policies, practices and customs of the City of New York and have caused police officers, including the officer defendants in this case, to believe that they can violate the rights of citizens with impunity, and that their fellow officers would conceal such conduct, including swearing falsely and committing perjury, all with the foreseeable result that officers will violate the constitutional rights of citizens. 168. The culture of silence and dishonesty concerning police misconduct exists because of, rather than despite, the efforts of the PBA. 169. As the Mollen Commission found, the PBA's policies put "immense pressure" on honest officers to maintain silence - to the detriment of law enforcement and police-community relations - and often contrary to these individuals' own interest and "fuel the insularity that characterizes police culture." The Commission accused PBA delegates of trying-to thwart law enforcement efforts to eradicate widespread police corruption. 170. The role the PBA and its agents played in this case was not an aberration. Rather, it has been standard operating procedure to abet and orchestrate the obstruction of justice in even the most notorious instances of police misconduct.
44

171. For example, in the case of Anthony Baez, an unarmed civilian choked by a police officer, agents of the PBA played a prominent role in helping the officers involved to concoct false, albeit consistent, stories and in pressuring the police officer who ultimately exposed their lies not to come forward - and to expose her to severe retaliation.
172. In addition to their role in manipulating the 48-hour rule, PBA agents make improper use of the attorney-client privilege and the spurious delegate-member privilege to orchestrate cover-ups among co-conspirators and to identify and silence police witnesses who would otherwise give honest testimony.
173. It is the custom and practice of the PBA to treat those officers who want to come forward - and not those who violently abuse citizens - as wrongdoers.
174. As a direct and proximate result of the City's and the PBA's policies and their deliberate indifference, defendants violated Mr. Louima's constitutional rights for which he suffered substantial damages. COUNT XV 42 U.S.C. § 1983 GONSPIRA€¥^8ETWEEN-GITY AND PBA
175/ Paragraphs 1-174 are incorporated by reference as though fully set forth. /
176. Acting jointly over a period of many years, the City and PBA together established \ policies and customs which allow even the most brazenly brutal officers to believe that they can use excessive force with impunity.
45

177. This conspiracy between the City and the PBA is ultimately responsible for, and the proximate and direct cause of the violation of Abner Louima's rights and the extraordinary injuries that ensued. / NT XVI
PENDENT CLAIM OF GROSS NEGLIGENCE AND NEGLIGENCE
178. Paragraphs 1-177 are incorporated by reference as fully set forth. 179. Defendants the PBA, Matarazzo, Lynch, Immit and unknown William Woe agents
of the PBA have been grossly negligent and negligent in the supervision, training, and monitoring of their representatives who consult with and counsel police officers who are suspected of crimes and misconduct, and police officers who are witnesses to crimes and misconduct by their fellow officers. 180. By virtue of the unique public safety considerations implicated by police violence, its pivotal role in the official investigation of police misconduct, and its express undertakings in its collective bargaining agreement with the City, the PBA and the individual PBA defendants have a duty to make sure their members and their agents, who are also police officers, do not Aoalate-their 4uties as police officers to report crimes and misconduct by fellow officers. 181. The PBA and the individual PBA defendants have been grossly negligent and
!
i
\ negligent in the instruction and training they provide to their members with " / respect to their responsibilities to report crimes or misconduct by other police!
46

officers. 182. The PBA and the individual PBA defendants have been on notice for man}' years
that their representatives have played a role in the improper obstruction of criminal investigations of New York City police officers. 183. The PBA and the individual PBA defendants knew or should have known that their policies and practices have contributed to improper concealment of admissions by police officers to PBA representatives, and a "code of silence" being followed by police officers, who are also PBA members, to cover up crimes and misconduct. 184. The PBA and the individual PBA defendants knew or should have known that their policies and practices, as well as their grossly negligent and negligent supervision and training of PBA representatives, created an atmosphere where the most violent police officers felt assured that their most brazen acts of misconduct would not be swiftly and effectively investigated and prosecuted. 185. The mistreatment and torture of Mr. Louima previously set forth, and the subsequent cover up of those events, were reasonably foreseeable results of the PBA's and the individual PBA defendants' negligent conduct.
COUNT XVII PENDENT CLAIM OF ASSAULT AND BATTERY 186. Paragraphs 1-185 are incorporated by reference as though fully set forth.
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187. By their actions, as set forth above, defendants Volpe, Schwarz, Bruder, and Wiese committed atrocious acts of battery against Abner Louima which included beating and kicking him about the face and body without cause, threatening to kill him and his entire family, and sodomizing him with a stick at the 70lh precinct. This use of physical force against Mr. Louima was unnecessary and excessive.
188. The City is responsible for the threats and the excessive and unnecessary physical force used by defendants Volpe, Schwarz, Bruder, and Wiese because the misconduct occurred while they were acting in the scope of their employment, specifically in the course of arresting Mr. Louima, and while they were executing their responsibility to hold him safely in police custody at the 70th precinct.
189. As a result of these death threats and the excessive and unnecessary physical force used against him, Mr. Louima suffered severe and serious physical and mental injuries. COUNT XVIII PENDANT CLAIMS OF FALSE ARREST AND FALSE IMPRISONMENT
190. Paragraphs 1-189 are incorporated by reference as though fully set forth. 191. Abner Louima was wrongfully, unlawfully, and unjustifiably charged, arrested,
detained and deprived of his liberty against his will, and was imprisoned by defendants Volpe, Bruder, Schwarz, Wiese, Bellomo, other unknown John Doe police officers and unknown Richard Roe supervisory personnel.
48

192. At all relevant times, these defendants acted forcibly in apprehending Mr. Louima. 193. The wrongful, unjustifiable, and unlawful apprehension, arrest, detention and
imprisonment was carried out without a warrant. 194. After his arrest, Mr. Louima was wrongfully harassed, threatened, and subjected
to the taking of mug shots in a particularly humiliating fashion and fingerprinting. 195. Throughout Mr. Louima's false arrest and imprisonment, defendants Volpe,
Bruder, Schwarz, Wiese, Bellomo, other unknown John Doe police officers, and unknown Richard Roe supervisors did not permit him an opportunity to establish his innocence. 196. At all times mentioned, the unlawful, wrongful, and false arrest and imprisonment of Mr. Louima was without right or probable cause, and was forcible and against his will. 197. All of the foregoing occurred without any fault or provocation on the part of Mr. Louima. 198. At all relevant times defendants Volpe, Bruder, Schwarz, Wiese, Bellomo, other unknown John Doe police officers and unknown Richard Roe supervisors who were responsible for the false arrest and imprisonment of Mr. Louima were employees of the NYPD and the City, and were acting for, upon and in furtherance of the business of their employers and within the scope of their employment.
49

199. As a result of the false arrest and imprisonment, Mr. Louima was subjected to humiliation, ridicule, and disgrace. He was required to incur bills for legal services rendered, and was otherwise injured and damaged. COUNT XIX
PENDENT CLAIMS OF INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 200. Paragraphs 1- 200 are incorporated by reference as though fully set forth. 201. In the course of battering Mr. Louima about the face and body, sodomizing him
with a stick, and falsely arresting and imprisoning him, defendants Volpe, Bruder, Schwarz, Wiese, Bellomo, Blaich and John Doe Police Officers embarked on a malicious, willful, and grossly negligent course of conduct intended to cause Mr. Louima to suffer extreme mental and emotional distress, agony, and anxiety. 202. One objective of this extreme and outrageous course of conduct was to inflict severe mental and emotional distress upon Mr. Louima so as to intimidate, terrify, and dissuade him from exposing the vicious assault and torture inflicted upon him, the false arrest and imprisonment, and the unconscionable delay and denial of medical treatment Mr. Louima endured. 203. Volpe directly threatened to kill Mr. Louima and his entire family if Mr. Louima revealed the horrible punishment visited upon him during the course of his false arrest and incarceration at the 70th precinct; Bruder, Schwarz, Wiese, Bellomo, Blaich, and John Doe Police Officers either knew or should have known about
50

these outrageous acts of terror and duress and attempted to stop them or

ameliorate their effects upon Mr. Louima.

204. Volpe. Bruder, Schwarz, Wiese, Bellomo, Daly, O'Brien, Blaich and other

unknown John Doe police officers either knew or should have known that Mr.

Louima had been severely injured, that failure to get him to a hospital for

immediate treatment would create an unreasonable risk of bodily harm, and that

failure to obtain such treatment promptly would cause Mr. Louima extreme mental

pain and anguish; nonetheless, all of these defendants breached their duty to

obtain medical treatment for Mr. Louima.

205. Defendants Rosario, Aleman, Blaich, Daly, O'Brien, and other John Doe

unknown police officers, defendants PBA, Immitt, Lee, and other William Woe

unknown agents for the PBA, intentionally, recklessly or negligently caused Mr.

Louima to suffer mental and emotional distress by impeding and obstructing the

exposure of the vicious battering and torture he suffered, the false arrest and

imprisonment he endured, and the wanton delay and denial of medical treatment

he experienced.

•- • --

206. It is believed that Volpe, Bruder, Schwarz, Wiese, the PBA and unknown John

Doe police officers and William Woe agents for the PBA pursued a malicious

campaign to inflict mental and emotional distress upon Mr. Louima by spreading

false suggestions in the community and press that Mr. Louima had suffered

51

injuries to his colon and rectum as a result of homosexual activity at the Club Rendez-Vous. These false suggestions, as these defendants knew or should have known, caused Mr. Louima humiliation and ridicule. 207. The aforesaid acts of intentional, reckless and negligent infliction of emotional and mental distress by defendants constitute misconduct of an egregious nature that exceeds all bounds usually tolerated by a civilized society.
COUNT XX PENDENT CLAIMS OF NEGLIGENCE FOR FAILING TO CARE, PROTECT, AND OBTAIN MEDICAL TREATMENT 208. Paragraphs 1- 207 are incorporated by reference as though fully set forth. 209. As New York City police officers, Volpe, Bruder, Schwarz, Wiese, Bellomo, Blaich and other unknown John Doe police officers had a duty to care, protect, and obtain medical treatment for Mr. Louima while he was being held as a prisoner at the 70th Precinct. 210. These defendants knew or should have known about the severe injuries Mr. Louima had suffered and were negligent in their failure to protect him from further injury at the precinct and their failure to prevent an unconscionable and unnecessary denial and delay in medical treatment and transport to a hospital.
COUNT XXI PENDENT CLAIM OF PRIMA FACIE TORT 211. Paragraphs 1 - 210 are incorporated by reference as though fully set forth.
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212. By their actions, as set forth above, defendants Volpe, Bruder. Schwarz. Wiese. Bellomo, Blaich, Daly, O'Brien, and other unknown John Doe police officers inflicted harm upon Mr. Louima, without excuse or justification, out of disinterested malevolence. COUNT XXII PENDENT CLAIMS OF MAKING AN INJURIOUS FALSE OR FRAUDULENT STATEMENTS
213. Paragraphs 1 - 212 are incorporated by reference as though fully set forth. 214. William Pagan and Frank Bimbaum, as employees of Emergency Medical Service
who responded to the 70th Precinct on August 9, 1997 to treat Mr. Louima and transport him to a hospital, had an obligation to accurately and reliably report information that would be relevant to Mr. Louima's care and treatment. 215. Nevertheless, Pagan and Bimbaum intentionally omitted in their Ambulance Call Report Mr. Louima's statements to them that he had been beaten by police officers, and had a stick shoved into his rear end and instead falsely stated that Mr. Louima had told them he had been punched, kicked, and hit, without any reference to the police or to the acute trauma to his rectum and internal organs. 216. The false information provided by Pagan and Bimbaum in their Ambulance Call Report and at other times before, during, and after Mr. Louima was transported to Coney Island Hospital, damaged Mr. Louima by delaying and denying him medical treatment and by causing him fear, pain and anguish.
53

COUNT XXIII PENDENT CLAIMS OF GROSS NEGLIGENCE AND NEGLIGENCE AND INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 217. Paragraphs 1- 216 are incorporated by reference as though fully set forth. 218. Pagan and Birnbaum, as EMS employees, were grossly negligent and negligent in that they had a duty to care for Mr. Louima which they violated by delaying and denying him prompt treatment and transport to the hospital, by providing false information about the source, nature, and extent of his injuries, and by failing to take steps that an ordinarily reasonable and prudent person would have pursued to care and protect Mr. Louima. 219. Pagan and Birnbaum knew or should have known that their denial and delay of treatment and transport of Mr. Louima created an unreasonable risk of bodily harm and did cause Mr. Louima mental distress and anguish.
COUNT XXIV PENDENT CLAIM - RESPONDEAT SUPERIOR 220. Paragraphs 1- 219 are incorporated by reference as though fully set forth. 221. At all relevant times, all defendant employees of the City of New York were acting for, upon, and in furtherance of the business of their employer and within the scope of their employment. 222. Consequently, the City is liable under the doctrine of respondeat superior for their
54

tortious actions. COUNT XXV
42 U.S.C. § 1983 AND PENDENT CLAIM BY MICHELINE LOUIMA 223. Paragraphs 1- 222 are incorporated by reference as though fully set forth. 224. At all times relevant to this action, Micheline Louima was and is the lawful spouse
of Abner Louima and, as such, was and is entitled to the comfort, enjoyment, society and services of her spouse. By reason of the foregoing conduct by defendants, Micheline Louima was deprived of the comfort and enjoyment of the services and society of her spouse, which are guaranteed to plaintiff under the laws and constitution of the State of New York and can be adjudicated in this litigation under the Court's supplementary jurisdiction. Moreover, defendants' conduct undermined Micheline Louima's liberty interest in preserving the integrity and stability of the marital relationship from intervention by the state without due process of law. WHEREFORE, plaintiffs request the following relief jointly and severally as against all of the defendants: 1. Award compensatory damages in an amount to be determined at trial; 2. Award punitive damages in an amount to be determined at trial; 3. Award equitable relief against the PBA; 4. Disbursements, costs, and attorneys' fees; and
55

staple
1 . Place cover this side UD_I»- S?P of first pane of document. Staple as indicated.

2903 © 1S63 JULIUS BLUMSERG, 1NC.B

2. Lift bottom of cover up and over top, folding on top score line.

3. Fold cover down behind papers on remaining score line.

here

STATE OF

COUNTY OF

ss.:

I, theundersigned, anattorney admitted topractice law,

|—I Certification certify that the within

g

orney has been compared by me with the original and found to be a true and complete copy.

Z 1—I Attorned . s t i ^ e that I am

- * '-

| I—I Affirmation

t n e attorney(s) of record for

S

in thewithin action: I have read the foregoing

•«

and know the contents thereof; the same is

5

true to my own knowledge, except as to thematters therein stated to be alleged on information andbelief, and as

to those matters I believe it to be true. The reason this verification is made by me andnot by

The grounds of my belief as to all matters not stated upon my own knowledge are as follows:

I affirm that theforegoing statements aretrue, under the penalties of perjury.

Dated:

The name signed must be printed beneath

STATE OF

COUNTY OF

ss.:

I,
x I—I mI I

Individual Verification

(he
the foregoing

being duly sworn, depose andsay: I am in the within action: I have read
and know the contents thereof: the same is true to

my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those

matters I believe it to be true.

•

Corporate the
Verification

of

a

corporation and a party in the within action: I have read the foregoing

I and know thecontents thereof: andthesame is true to myown knowledge. except as to thematters therein stated to be alleged upon information andbelief, andas to those matters I believe it to be true. This verification is made by mebecause theabove party is a corporation andI aman officer thereof. The grounds of my belief as to all matters not stated upon my own knowledge are as follows:

Sworn to before me on

The name signed must be printed beneath

STATE O F

COUNTY OF

S S . : (If both hose* are oheckwl - indicate aft,-, names, typo at son-ice visod. I

I,

being sworn, say: I am not a party to the action, am over 18 years

of age and reside at

On

I served the within

I •

Service By Mail

by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository under the exclusive care
and cusitody of the U.S. Postal Service within this State, addressed to each of the following persons at the last known address setforth after each name:

Personal bydelivering a true copy thereof personally toeach person named below at the address indicated. I knew each person

Service on
Individual

£ e r v e d to be the pr erson mentioned anddescribed in said rpapr ers as a party therein:

Sworn to before me on

The name signed must be printed beneath

I
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
x
ABNER LOUIMA and MICHELINE LOUIMA. Plaintiffs,
-againstTIIE CITY OF NEWYORK, etal.,
Defendants.

THIRD SUPPLEMENTAL SUMMONS AND THIRD AMENDED COMPLAINT

To Attorney(s) for

COCHRAN NEUFELD & SCHECK, LLP Attorney(s) for P l a i n t i f f s
99 HUDSON STREET NEW YORK, NEW YORK 10013
(917) 237-0338
Service of a copy of the within is hereby admitted. Dated:

 
 Louima v. City of New York, Not Reported in F.Supp.2d (2004)

2004 WL 2359943 Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Abner LOUIMA, et. al., Plaintiffs, v.
THE CITY OF NEW YORK, et al., Defendants.
No. 98 CV 5083(SJ). | filed Aug. 6, 1998. | terminated July 31, 2001. | Oct. 5, 2004. | last filing
Oct. 18, 2004.
Attorneys and Law Firms
Kenechukwu Chudi Okoli, K.C. Okoli, Attorney at Law, New York, NY, Lead Attorney, Attorney to be Noticed, for Casilda E. Roper–Simpson, (Interested Party).
K.C. Okoli, New York, New York, for Casilda E. Roper–Simpson.
Simon & Waller, New York, New York, By: Bradley Simon, Brian D. Waller, for Estate of Carl Thomas and Thomas & Figeroux.
Law Office of Michael S. Ross, New York, New York, for Cochran Neufeld & Schech, LLP.
Opinion
MEMORANDUM AND ORDER
JOHNSON, Senior J.
*1 Presently before this Court is the Estate of Carl Thomas (“Thomas” or the “Estate”),1 Thomas & Figeroux (“T & F”), and Casilda Roper Simpson (“Roper–Simpson”) objections to Magistrate Judge Cheryl L. Pollack’s (“Magistrate Judge Pollack”) Report and Recommendations dated July 21, 2004. Brian Figeroux (“Figeroux”) filed no objections to the Report and Recommendation. For the reasons set forth below, the Court adopts Magistrate Judge Pollack’s Report and Recommendation in part.
FACTUAL BACKGROUND
The Court will provide a brief outline of the facts. Magistrate Judge Pollack extensively and impressively

outlines the factual background and procedural history of the case and the fee dispute before this Court. (See Report and Recommendation [“Report”], dated April 24, 2003, at 1–98.)
On August 9, 1997, Plaintiff Abner Louima (“Louima”) was brutally assaulted by one or more police officers after he left a nightclub in Brooklyn, New York. (Id. at 7.) Outside of the nightclub, police officers handcuffed Louima and transported him to the 70th Precinct. (Id.) The officers beat Louima on the way to the precinct, and once there, an officer took Louima into a bathroom and shoved a stick into his rectum. (Id.) The details of Louima’s assault were widely covered in the New York press and nationally. Immediately following his assault and while criminal charges were pending against him, Louima orally retained the legal services of T & F for purposes of both his then pending criminal charges and any potential civil action. (Id. at 7–10.) T & F brought Roper–Simpson into the case. Louima did not retain Roper–Simpson, but rather was told that Roper–Simpson would be “working with [T & F],” and that he understood that “she would be paid by T & F.” (Id. at 9.)
On August 15, 1997, Louima retained Sanford Rubenstein (“Rubenstein”) of Rubenstein and Rynecki (the “Rubenstein firm”) to represent him in the civil matter. (Id. at 19.) Lastly, on August 25, 1997, Louima retained the firm of Cochran Neufeld & Scheck (“CN & S”) “to investigate and pursue a claim for personal injury and civil rights violations and to represent him in connection with the state and federal criminal and civil rights investigations relating to this incident.” (Id. at 25, 27.) On October 6, 1997, T & F, the Rubenstein firm, and CN & S entered into an “Agreement By and Between counsel,” stating that the total attorneys’ fees shall not exceed 33 1/3 percent of the net recovery and that the fees will be divided amongst counsel. (Id. at 27.) On November 3, 1997, Louima executed another Retainer Agreement, specifying that the total amount of legal fees, representing 33 1/3 percent of any total net recovery, would be divided equally, with T & F, the Rubenstein firm, and CN & S each receiving “eleven (11) and one-ninth (1/9) percent.” (Id. at 28.)
Although heatedly contested, on January 23, 1998, T & F and Roper–Simpson withdrew from further representation of Louima. (Id. at 113–21.) Following T & F’s withdrawal from the case, the Rubenstein firm and CN & S entered into an “Amendment to [the] Agreement By and Between Counsel,” in which they agreed that (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.” (Id. at
1

Louima v. City of New York, Not Reported in F.Supp.2d (2004)

28–9.)
*2 On August 8, 1998, Plaintiffs Abner and Micheline Louima (the “Louimas”) filed this civil action alleging violations of 42 U.S.C. § 1983 in connection with the brutal attack. On March 21, 2001, the Rubenstein firm and CN & S filed the instant motion to prevent Thomas, Figeroux, the firm of T & F, and Roper–Simpson from receiving attorneys’ fees in connection with the litigation. (Id. at 4.) On July 14, 2001, the case settled, resulting in an award of $8.75 million to the Louimas. (Id.) This Court referred the fee dispute to Magistrate Judge Pollack. After voluminous briefing and numerous hearings, Magistrate Judge Pollack recommended that: (1) T & F be denied any share of the attorneys’ fees in the litigation because they voluntarily withdrew from further representation of the Louimas without good cause, or, (2) in the alternative, if T & F are to receive attorneys’ fees, their amount should be reduced due to the disclosure of client confidences and secrets in violation of disciplinary rules. The Estate, T & F, and Roper–Simspon filed objections to Magistrate Judge Pollack’s Report and Recommendations. Figeroux did not file objections.
STANDARD OF REVIEW
A district court judge may designate a magistrate to hear and determine certain motions pending before the court and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten (10) days of service of the recommendation, any party may file written objections to the magistrate’s report. Id. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. Id.
The court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). In addition, failure to file timely objections may waive the right to appeal this Court’s Order. See 28 U.S.C. § 636(b)(1); Small v. Sect’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989).
DISCUSSION
The Rubenstein firm and CN & S contend that T & F should not receive any portion of the legal fees in this matter because they withdrew from representing the

Louimas without cause and violated their ethical duty to keep client confidences and secrets confidential. The Court will consider these issues in turn.
I. Did T & F and Roper–Simspon withdraw from the case without cause? Magistrate Judge Pollack recommended that T & F be denied attorneys’ fees because they withdrew from the litigation without cause. (Id. at 113–27.) Crediting the testimony of Louima, Magistrate Judge Pollack found that T & F voluntarily withdrew from the case after Louima gave them one last chance to follow his instructions to cease speaking to the press without first obtaining his authorization. (Id. at 113–14.) Magistrate Judge Pollack rejected T & F’s and Roper–Simpson’s contentions that they were fired and their alternative argument that they were forced off the case by CN & S’ efforts to alienate them from Louima. (Id. at 113–21.) Magistrate Judge Pollack found that there was no credible evidence showing a concerted effort by CN & S to alienate Louima from T & F. (Id. at 118.) Although Magistrate Judge Pollack acknowledged a break-down in T & F’s and CN & S’ working relationship, she found that their poor relationship was attributed in large part by T & F’s behavior. (Id. at 120.) Thus, Magistrate Judge Pollack refused to allow the state of T & F’s poor relationship with CN & S to justify their departure. (Id. at 120–21.)
*3 Although the Court agrees with Magistrate Judge Pollack that T & F and Roper–Simpson withdrew from the case without cause, in the interest of equity, the Court finds that the Estate of Thomas and Roper–Simpson are entitled to fees based on work performed in the early stages in the litigation.
II Did T & F forfeit their right to attorneys’ fees? In the event that T & F and Roper–Simpson were found not to have withdrawn from the case, or that such withdrawal was not without good cause, Magistrate Judge Pollack found that T & F is entitled to attorneys’ fees. Magistrate Judge Pollack rejected CN & S’ argument that T & F forfeited any right to attorneys’ 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 Louima.2 (Id. at 139.) Magistrate Judge Pollack rejected claims that CN & S and the Rubenstein firm lacked standing to challenge T & F’s right to attorneys’ fees based on ethical violations. (Id. at 123.)
However, finding that T & F did in fact disclose client secrets to the press, Magistrate Judge Pollack recommended that T & F forfeit a significant portion of their fees under the fee sharing agreement. Magistrate
2

Louima v. City of New York, Not Reported in F.Supp.2d (2004)

Judge Pollack found that Roper–Simpson’s award of attorneys’ fees should not be reduced because there “has been no evidence of any ethical violations by Ms. Roper–Simpson, who appears to have acted in Louima’s interest at all times and did not have any discussions with the press that were not authorized.” (Id. at 139 n. 101.) Magistrate Judge Pollack noted that any award given to T & F is in “recognition of the fact that T & F did perform a valuable service to Louima in the early weeks following the incident.” (Id . at)
In determining the reasonable value of T & F’s and Roper–Simpson’s services, the Court considered the standing of the lawyers at the bar, T & F’s contributions to the case, and the work performed by CN & S and Rubenstein. Magistrate Judge Pollack noted that CN & S collectively had more experience with complex litigation in general and civil rights cases in particular than Thomas, Figeroux, and Roper–Simpson, and that CN & S did the lion’s share of the work leading to the settlement of the litigation. Magistrate Judge Pollack rejected T & F’s and Roper–Simpson’s claims that they expended many hundreds of hours on behalf of Louima. Magistrate Judge Pollack noted that they failed to submit time records for work allegedly performed on the case. After considering the duties performed and time expended on the case, Magistrate Judge Pollack found that T & F radically overstated the value of their contribution to the case.
After comparing the amount and nature of the work performed by T & F and Roper–Simpson with that of the other lawyers, Magistrate Judge Pollack concluded that “[i]n absence of any fee sharing agreement, and had they committed no breaches of their ethical violations, T & F 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.” Magistrate Judge Pollack then applied a 30 percent reduction for ethical violations committed by T & F, which resulted in a total fee of $212,222.50.
*4 In determining whether the $212,222.50 figure was an appropriate portion of the fees for T & F and Roper–Simpson, Magistrate Judge Pollack next estimated T & F’s fees using the lodestar method. After applying the lodestar method, Magistrate Judge Pollack found that Thomas and Figeroux each were entitled to $78,400.00, and Roper–Simpson is entitled to $35,000. Magistrate Judge Pollack concluded that Figeroux was not entitled to any fees because he filed an affidavit with the Court that contained at least one false statement and perjured himself while testifying during the fee proceeding. Magistrate Judge Pollack recommended that his share revert to the firm of T & F, or in this case, the Estate.3
In their objections, the Estate, T & F, and Roper–Simpson contend that Magistrate Judge Pollack wrongly found that the Rubenstein firm and CN & S had standing to

challenge T & F’s right to attorneys’ fees based on purported ethical violations. The parties further contend that Magistrate Judge Pollack wrongly calculated the amount of attorneys’ fees awarded.
The Estate and T & F request that T & F be awarded at least ten percent of the fees, or $303,175.01. Roper–Simpson requests to share equally in the fees of T & F. Roper–Simpson requests one-third (1/3) of the fees due to T & F, and if Figeroux is not entitled to any fee award, she wants one-half of his portion, with the other half going to the Estate of Carl Thomas. Roper–Simpson contends that she was not an employee of T & F, but rather there existed a joint venture between her and T & F to work on the Louima case.
Roper–Simpson also objects to the manner in which Magistrate Judge Pollack calculated the award of fees. Roper–Simpson asserts that a more reliable indicium of how to calculate the fees of the attorneys in the case is the significance of their contributions. Roper–Simpson contends that the most significant events in the case, to wit, early press coverage and the early involvement of the U.S. Attorney’s Office, were events in which she was involved.
The Court rejects the Estate’s, T & F’s, and Roper–Simpson’s contention that the Rubenstein firm and CN & S lack standing to challenge their award of fees based on purported ethical violations. The Court agrees with Magistrate Judge Pollack that “CN & S and the Rubenstein firm 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.” (Id. at 123.) Although there is no case directly on point, the Court further agrees with Magistrate Judge Pollack that “[t]o 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.” (Id.) After carefully considering the Estate’s, T & F’s, and Roper–Simpson’s objections, the Court adopts Magistrate Judge Pollack’s calculation of attorneys’ fees, in which the Estate was awarded $156,800, and Roper–Simpson was awarded $35,000.4
CONCLUSION
*5 After considering the parties’ arguments, this Court adopts and affirms Magistrate Judge Pollack’s report and recommendation in part.
3

Louima v. City of New York, Not Reported in F.Supp.2d (2004) POLLAK, Magistrate J.

REPORT AND RECOMMENDATION

	  

TABLE	  OF	  CONTENTS	  

	  	  

	  

	  	  

	  

	  

INTRODUCTION	 .  ..................................................................................................................................................................................	 	   

4	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

FACTUAL	  FINDINGS	.  ........................................................................................................................................................................	 	   

7	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

A.	  The	  Assault	 . .........................................................................................................................................................................................	 	   

7	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

B.	  Retention	  of	  Thomas	  &	  Figeroux	.  .....................................................................................................................................	 	   

8	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

C.	  Initial	  Contact	  with	  the	  Internal	  Affairs	  Division	  and	  Mike	  McAlary	.  ...............................................	 	   

10	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

D.	  Giuliani—Time	  Statement	.  ....................................................................................................................................................	 	   

11	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

E.	  Initial	  Contacts	  with	  the	  U.S.	  Attorney’s	  Office	.  ....................................................................................................	 	   

12	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

F.	  Retention	  of	  Rubenstein	.  ...........................................................................................................................................................	 	   

17	  

	  	  

	  	  

	  

	  

4

Louima v. City of New York, Not Reported in F.Supp.2d (2004)

	  	  

	  

	  

G.	  Notices	  of	  Claim	.  ..............................................................................................................................................................................	 	   

20	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

H.	  The	  March	  and	  Rally	.  ..................................................................................................................................................................	 	   

21	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

I.	  Retention	  of	  CN	  &	  S	.  .......................................................................................................................................................................	 	   

21	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

J.	  The	  Retainer	  Agreements	.  ........................................................................................................................................................	 	   

27	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

K.	  Louima’s	  First	  Meetings	  with	  the	  U.S.	  Attorney’s	  Office	.  ..............................................................................	 	   

29	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

L.	  The	  “Laptop	  Incident”	 .  ...............................................................................................................................................................	 	   

31	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

M.	  The	  Civil	  Investigation	.  .............................................................................................................................................................	 	   

36	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

N.	  Assistance	  to	  the	  Government’s	  Case	.  ...........................................................................................................................	 	   

39	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

O.	  The	  Tacopina	  Meetings	 .  ...........................................................................................................................................................	 	   

43	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

5

Louima v. City of New York, Not Reported in F.Supp.2d (2004)

P.	  The	  Investigation	  of	  the	  “Giuliani	  Time”	  Statement	 . .......................................................................................	 	   

47	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

Q.	  Statements	  to	  the	  Press	.  ...........................................................................................................................................................	 	   

53	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(1)	  Louima’s	  Initial	  Instructions	.  ............................................................................................................................................	 	   

53	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(2)	  Specific	  Examples	  of	  Alleged	  T	  &	  F	  Leaks	 .  .............................................................................................................	 	   

55	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(3)	  Louima’s	  Retraction	  of	  “Giuliani	  Time”	.  ..................................................................................................................	 	   

58	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

R.	  The	  Withdrawal	  of	  T	  &	  F	.  ........................................................................................................................................................	 	   

60	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

S.	  The	  Resignation	  Letter	 .  .............................................................................................................................................................	 	   

66	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

T.	  Post–Termination	  Press	.  ..........................................................................................................................................................	 	   

69	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

U.	  The	  Allegations	  Contained	  in	  the	  Attorneys’	  Fee	  Papers	.  ............................................................................	 	   

75	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

V.	  The	  Figeroux	  Affidavit	 . ..............................................................................................................................................................	 	   

79	  

	  	  

	  	  

6

Louima v. City of New York, Not Reported in F.Supp.2d (2004)

	  

	  

	  	  

	  

	  

W.	  CN	  &	  S	  Response	  to	  the	  Figeroux	  Affidavit	.  ............................................................................................................	 	   

81	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

X.	  The	  FBI	  Interview	  and	  Figeroux’s	  Deposition	 .  ......................................................................................................	 	   

84	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

Y.	  Figeroux’s	  Testimony	  at	  the	  Fee	  Proceeding	.  .........................................................................................................	 	   

90	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

DISCUSSION	 .  ............................................................................................................................................................................................	 	   

98	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

A.	  Jurisdiction	 .  .........................................................................................................................................................................................	 	   

99	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

B.	  Attorney’s	  Lien	.  .................................................................................................................................................................................	 	   

101	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

C.	  Termination	  of	  the	  Attorney—Client	  Relationship	.  ..........................................................................................	 	   

106	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(1)	  Standards	  for	  Termination	  or	  Withdrawal	.  .........................................................................................................	 	   

106	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(2)	  Application	 .  ......................................................................................................................................................................................	 	   

112	  

	  	  

	  	  

	  

	  

	  	  

	  

7

Louima v. City of New York, Not Reported in F.Supp.2d (2004)

	  

D.	  Misconduct	  by	  T	  &	  F	.  ...................................................................................................................................................................	 	   

120	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(1)	  Standing	.  .............................................................................................................................................................................................	 	   

120	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(2)	  Confidences	  and	  Secrets	.  .......................................................................................................................................................	 	   

123	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(a)	  The	  Disclosures	  of	  Client	  Secrets	.  ...................................................................................................................................	 	   

125	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(b)	  Justifications	  for	  Disclosures	.  ............................................................................................................................................	 	   

127	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(c)	  T	  &	  F’s	  Disclosures	  to	  the	  Press	  Were	  Not	  Warranted	 .  ...............................................................................	 	   

130	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(3)	  Forfeiture	  of	  Fees	 . .......................................................................................................................................................................	 	   

135	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

E.	  Roper–Simpson’s	  Claim	  to	  Fees	 .  ........................................................................................................................................	 	   

139	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

F.	  Fee	  Determination	.  ........................................................................................................................................................................	 	   

144	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(1)	  Standing	  at	  the	  Bar	.  ..................................................................................................................................................................	 	   

149	  

8

Louima v. City of New York, Not Reported in F.Supp.2d (2004)

	  	  

	  	  

	  

	  

	  	  

	  

	  

(2)	  T	  &	  F’s	  Contributions	 .  ..............................................................................................................................................................	 	   

153	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(3)	  The	  Work	  Performed	  by	  CN	  &	  S	  and	  Rubenstein	.  ............................................................................................	 	   

156	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

(4)	  Calculating	  the	  Value	 . .............................................................................................................................................................	 	   

162	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

G.	  Figeroux’s	  Conduct	 .  ......................................................................................................................................................................	 	   

165	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

H.	  Alleged	  Ethical	  Violations	  by	  CN	  &	  S	  and	  Rubenstein	.  ...................................................................................	 	   

169	  

	  	  

	  	  

	  

	  

	  	  

	  

	  

CONCLUSION	.  ..........................................................................................................................................................................................	 	   

175	  

	  	  

	  	  

	  

	  

INTRODUCTION
*6 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.,1 Brian Figeroux, Esq., the firm of Thomas & Figeroux (“T & F”),2 and Casilda E. Roper–Simpson, Esq., to share in the legal fees
9

Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).3
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.4 (Id. at 2).5
*7 A hearing was held before this Court beginning on October 16, 2002,6 which culminated with the filing of extensive briefs by all parties. Having heard the testimony of each of the witnesses and carefully considered all of the papers submitted by the interested parties, this Court makes the following findings of fact and conclusions of law.
FACTUAL FINDINGS
A. The Assault During the early morning hours of August 9, 1997, Abner Louima was assaulted by one or more police officers after he left the Club Rendez–Vous on Flatbush Avenue, in Brooklyn. (Compl.7 ¶ 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,8 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).9 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).10 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).11
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).
*8 According to Louima, he first met Casilda Roper–Simpson, Esq. at the same time that he first met
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).12 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).13 In support of that claim, T & F point to Sanford Rubenstein’s testimony that when Rubenstein was retained during “one of the early visits” to the hospital, he was told by Louima to work with T & F on the civil case. (R. Tr. at 71).
C. Initial Contact with the Internal Affairs Division and Mike McAlary On Sunday, August 10, 1997, prior to the retention of T & F, a nurse at Coney Island Hospital who was caring for Louima, contacted the Internal Affairs Division (“IAD”) of the NYPD. (R.S. Tr. I at 163; S. Tr. I at 78, 177–78; CN & S Post–Tr. Br. at 7). On August 11, 1997, attorneys for the Brooklyn District Attorney’s Office attempted to interview Louima. (R.S. Tr. I at 11, 170). According to Roper–Simpson, after approximately fifteen minutes, Louima, who was still very weak, could not respond to their questions and the interview was terminated. (Id. at 12–13). On August 12, 1997, although heavily medicated, Louima was interviewed by officers from the IAD. (L. Tr. at 96, 98; Ex. 8414 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).15
The next day, August 13, 1997, Mayor Giuliani came to visit Louima in the hospital. (L. Tr. at 61–62; R.S. Tr. I at 65; CN & S Post–Tr. Br. at 10). According to Louima, at the urging of Louima’s Uncle Nicolas, the mayor made a call from the hospital during that visit; the criminal charges were dropped, and the handcuffs were removed. (L. Tr. at 62–63). Although Figeroux and Roper–Simpson testified that they were responsible for having the charges dropped (F. Tr. III at 52; R.S. Tr. I at 32), it was Louima’s

testimony that T & F played no role in the decision to drop the charges despite the fact that they had been hired for the purpose of representing Louima in the criminal case. (L. Tr. at 62–63).16
D. Giuliani—Time Statement *9 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;17 F. Tr. I at 174, 179). During that press conference, which was held outside of Coney Island Hospital, Figeroux told the press that one of the officers who attacked Louima had, during the attack, said in substance, “ ‘It’s not Dinkins’ time. It’s Giuliani time” ’ (the “Giuliani time statement”). (R.S. Tr. I at 18–19; F. Tr. I at 165–72; S. Tr. I at 71).
The following day, August 14, 1997, Louima was wheeled out on his hospital bed for a press conference and repeated the Giuliani time statement. (S. Tr. at 71–72; R.S. Tr. I at 53; L. Tr. at 152–53). Louima testified that he did not want to speak to the press at that time, but he acquiesced to the pressures of Thomas and Figeroux. (L. Tr. at 151–52). Roper–Simpson testified that it was Louima who “insisted” on speaking to the press to tell the world his story and that he ignored the advice of his attorneys. (R.S. Tr. I at 55–56). However, contrary to Roper–Simpson’s testimony, Figeroux testified that he wanted the press conference with Louima to take place. (F. Tr. I at 182–83). He described it as a “collective decision” and indicated that the attorneys spoke to Louima before that press conference. (Id. at 183).
On August 15, 1997, the day after Louima’s first press conference, Louima was moved to Brooklyn Hospital. (L. Tr. at 51; R. Tr. at 38). On that same day, his videotaped testimony was taken in the hospital for presentation to a state grand jury. (R.S. Tr. I at 50, 170; CN & S Post–Tr. Br. at 16). His testimony was then taken again for the state grand jury via videotape on August 20, 1997. (Id.)
During both the interview with IAD, the videotaped testimony before the grand jury, as well as the press conference on August 14, Louima was in a great deal of pain, on medication and clearly not in shape to make statements. (L. Tr. at 96, 98–99; R.S. Tr. I at 12–13). Many of the inconsistencies in his testimony that would later plague the prosecution’s case during the criminal trials stem from statements made during these initial few public statements. (L. Tr. at 98). Louima attributed the failure of T & F to prevent him from speaking to the press as stemming from “inexperience.” (Id.)
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).
*10 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.18 at 210, 213–14). They were later joined on the government’s team by AUSA Cathy Palmer,19 who served as the lead prosecutor until she left the Office, and by then AUSA Loretta Lynch,20 then AUSA Alan Vinegrad,21 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.,22 Mr. Thompson received a phone call in his office from Carl Thomas, who told Thompson that he had a client who had been “raped”23 by the police in the precinct. (T. Tr. at 218). Mr. Thompson testified that he had first met Carl Thomas while attending New York University Law School. (Id. at 215). At that time, Thompson was a year ahead of Thomas in law school, knew that Thomas was a Root Tilden scholar, had one or two classes with Thomas, and had attended a number of events at the law school arranged by Thomas. (Id. at 216–17).
During the first phone call, Thomas told Thompson that he wanted Thompson to come to his office because he wanted the United States Attorney’s Office to get involved and investigate the Louima matter. (Id. at 218). At that point, Thompson had never heard of either Abner Louima or Justin Volpe. (Id. at 219). Thompson testified that originally he did not “think police officers would

engage in such conduct,” and he told Thomas that he did not have the time to meet with Thomas that evening. (Id. at 218–19). When Thompson told Thomas that he could not meet with him that night, Thomas, and later Figeroux, who got on the phone with Thompson, tried to persuade Thompson to set up a meeting with Zachary Carter, then U.S. Attorney for the Eastern District of New York. (Id. at 219).
The next day, Thompson spoke to Gordon Mehler, Chief of Special Prosecutions, and Leslie Cornfeld, Deputy Chief of the Civil Rights Unit in the Office, and although they both expressed an interest in meeting with Thomas and Figeroux, Thompson had to first get permission from Mr. Carter who was out of the office that day. (Id . at 220). During the day, Thomas and Figeroux paged Thompson to see if he had been able to set up a meeting with Mr. Carter. (Id. at 219–20). They told Thompson that Louima was “actually injured.” (Id. at 221).
*11 On the morning the McAlary article appeared on the front page of the Daily News, Thompson showed the article to the United States Attorney, Zachary Carter, and explained to Mr. Carter that he had gone to law school with Carl Thomas, the attorney representing Louima. (Id. at 222). He told Mr. Carter that Thomas had asked for a meeting to discuss the Louima situation, and thereafter, a meeting was arranged, attended by AUSAs Thompson, Cornfeld, Gordon Mehler, and Jason Brown, as well as Thomas, Figeroux, and Ms. Roper–Simpson. (Id. at 222–23; R.S. Tr. I at 25; F. Tr. III at 41–42, 59–60, 62). According to Mr. Thompson, based on the discussion at the meeting and the press report, the attorneys understood the significance of the case. (T. Tr. at 224). However, at this point in time, the District Attorney’s Office was investigating the case and “the [O]ffice didn’t commit to doing anything with respect to the case.... I believe [we] were committed at that time to adhere to the policy of the [Department of Justice,] to let a state prosecution ... play itself out.” (Id. at 223–24).
According to Mr. Thompson, eventually, after conversations between Mr. Carter and Charles Hynes, the Brooklyn District Attorney,24 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).
*12 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).25 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).26 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).27 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).28
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 notes29 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).30 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).
*13 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).31
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).32
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

*14 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).33 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).34
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.35 (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).36 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.37 (C.
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).
*15 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).38 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).39 Cochran told Louima that he would also be working with Neufeld and Scheck, and Louima approved. (Id. at 20; C. Tr. I at 193).40 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.41 (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).42 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).43 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 *16 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,
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

Thomas (on behalf of T & F), Cochran, Scheck and Neufeld,44 divided the fees among counsel and contained a paragraph in which it was agreed that each of the signatories:
assumes joint responsibility (as that term is applied in Disciplinary Rule 2–107[A][2] ), for the representation of ABNER LOUIMA and MICHELINE LOUIMA in this matter, and that the division of fees among counsel ... recognizes and assumes that the division of fees will not necessarily be proportional to the amount of work performed by each such signatory. Each of the signatories to this agreement, on behalf of themselves and the firms and lawyers they work with, have considered the matter of the division of fees in light of D.R. 2–107(A) of the New York Lawyer’s Code of Professional Responsibility and has concluded after due deliberation, that the total fees to the signatories to this agreement in the aggregate, and to the signatories to this agreement on an individual basis, will not be unreasonable or excessive in light of factors, including those set forth in D.R. 2–106(b) of the New York Lawyer’s Code of Professional Responsibility. (Id.) Thereafter, on November 3, 1997, the Louimas executed another Retainer Agreement as to all the attorneys—T & F, CN & S, and the Rubenstein firm—in which it was agreed that the total amount of legal fees, representing 33 1/3% of any total net recovery, would be divided equally, with CN & S, T & F and the Rubenstein firm each receiving “eleven (11) and one-ninth (1/9) percent.” (Ex. 2). The November 3, 1997 Retainer Agreement further specified that the lawyers “will work jointly on this matter and will participate and share responsibility in the prosecution of the claim.” (Id. at 2). *17 On September 18, 1998, after T & F had ceased to represent the Louimas, the Rubenstein firm and CN & S entered into an “Amendment to Agreement By and Between Counsel.” (Ex. 5). This agreement noted that T & F were “no longer involved” in the case as of January 23, 1998 and provided that if T & F “as the result of their cessation of representation,” were not to receive their 11 percent of the fees, then T & F’s share would be divided as follows: (a) the Rubenstein firm would “receive eleven (11) percent of any portion of the eleven (11) percent of the gross recovery to which Thomas & Figeroux are not entitled to;” and (b) CN & S would “receive 89% of the 11% of the gross recovery to which Thomas & Figeroux are not entitled to .” (Ex. 5).
K. Louima’s First Meetings with the U.S. Attorney’s Office Prior to the retention of CN & S, the U.S. Attorney’s Office had attempted to arrange a meeting with Louima, scheduled for August 26, 1997. (N. Tr. I at 13–14). Peter

Neufeld testified that on that day, Cochran and Scheck asked him to go to the hospital to be with Louima during the interview by federal prosecutors because neither Cochran or Scheck was available to attend the meeting. (N. Tr. I at 14). Since Neufeld had been on vacation out of the country on the date of Louima’s assault, he did not become involved in the case until that morning of August 26, 1997, when he went to the hospital where he met Louima and Figeroux. (Id. at 13–14).
Neufeld testified that when he arrived at the hospital, Louima was lying in a hospital bed, hooked up to an I.V. and various other devices; “[h]e appeared to be very, very tired and in a certain amount of pain.” (Id. at 15). At the time, Louima was on several painkillers in addition to other medication. (Id.)
Before the government interview began, Neufeld asked Figeroux for the details of what had happened to Louima, but “Figeroux told me he was not familiar with the details. He only knew the case in broad stroke.” (Id. at 14). Neufeld did not think that it was a good idea to allow Louima to speak with the government before the attorneys had debriefed their own client. (Id. at 14–15). Neufeld was also concerned that Louima had already testified before a state grand jury via videotape, explaining, “it is my experience that when you have a client or a witness who is in that kind of physical condition and psychological condition, where you know he is not going to die, that one would be prudent and wait until he is feeling better so you can interview him thoroughly and you can make sure that ... he testifies with all of his faculties.” (Id. at 16). When Neufeld voiced these concerns, Figeroux responded that it was “[t]oo late for that. We’re going forward.” (Id.)
Shortly thereafter, Ms. Palmer arrived with Mr. Thompson and an FBI agent. (Id. at 17). Neufeld tried unsuccessfully to have Ms. Palmer postpone the interview. (Id.) As the interview progressed, it became very clear that Louima was in pain; his answers were disjointed and at one point, one of the gauges on one of the machines signaled that he was in a danger zone, requiring the nurse to come in. (Id.) Neufeld then urged that the interview stop for fear it was exacerbating Louima’s condition. (Id.)
*18 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

Louima at his home and, according to Ms. Palmer, both Scheck and Neufeld helped to establish a good relationship between Louima and the government which enabled the government to move its investigation forward. (Id. at 16).
By contrast, Ms. Palmer testified that based on her interactions with Figeroux, she felt that he did not trust the government or what they were trying to do. (Id. at 16–17). One example of this was Figeroux’s reaction to the decision of the Office to include both FBI agents and officers from the NYPD on the investigative team. (Id. at 17–18). Figeroux, upset that NYPD officers would be involved, questioned the U.S. Attorney’s commitment to a serious investigation. (Id. at 18). Figeroux was, according to Ms. Palmer, present at the first meeting in the hospital and then again during one of the first visits at Louima’s house; “[b]ut other than that, [she did not] have a recollection of him being present.” (Id.) Palmer testified that on several occasions, she made it clear to Figeroux that she did not think he was being helpful in getting to the bottom of who was with Louima at the Club Rendez–Vous: “He was not being helpful in building that bridge” with the family. (Id. at 79–80).
L. The “Laptop Incident” Some time after the August 25th retainer agreement was signed, and after Neufeld had gone to the hospital with Cathy Palmer to question Louima, arrangements were made to have all of the lawyers meet to discuss how they would proceed as a team to pursue the case. (S. Tr. I at 32–33). The meeting was held in Rubenstein’s office on Court Street in Brooklyn. (Id. at 33).
Thomas, Figeroux, Cochran, Scheck, and Rubenstein were present at the meeting. (S. Tr. I at 33–34).45 Neither Scheck or Cochran could recall if Roper–Simpson was there. (Id.; C. Tr. I at 198–99).46 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).47 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).
*19 Figeroux conceded using these statements during this incident. (F. Tr. II at 68–69). Figeroux admitted that, taken “out of context,” his comments “appear[ed] to be inappropriate.” (Id. at 70). However, in T & F’s papers,

Figeroux attempts to justify his behavior at this meeting as “readily understandable when placed in the context of Cochran’s duplicity and evasion in dealing with [T & F] at this time of his entry into the case that [T & F] had worked so hard and so successfully to build.” (T & F Mem. at 17).
After this initial incident, Thomas and Figeroux asked to speak privately with Cochran, telling Cochran that Scheck and Neufeld knew nothing about civil rights. (C. Tr. I at 204). When Cochran tried to dissuade them of this notion, Thomas and Figeroux accused Cochran of being “an Uncle Tom,” and they argued that because they were Black like Cochran, he “should ... favor them, and should kick Scheck and Neufeld off the team.” (Id. at 204–05; S. Tr. I at 40–42). Thomas said to Cochran, “ ‘Why are you practicing with these two Jew lawyers [referring to Neufeld and Scheck] ... you should be working with us’—Mr. Figeroux and Mr. Thomas—‘because we’re lawyers for the community.” ’ (S. Tr. I at 41). Figeroux also accused them of not caring about police brutality issues. (Id.) Cochran testified that:
First of all, they accused me of being Uncle Tom for bringing in these Jewish lawyers. Then they referred to them other than as Jewish lawyers. They used a terribly pejorative term48.... 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).
*20 Cochran also told them it was “malpractice for them to allow Abner to go before the cameras when he is sedated, to have him be interviewed like that before the state grand jury.” (Id.) He told them they did not know what they were doing and that they should “try to learn before they got this case all totally messed up.” (Id.) According to Cochran, Thomas and Figeroux did not dispute any of this. (Id. at 208).
After meeting with Thomas and Figeroux separately for fifteen to twenty minutes, Cochran returned with Thomas and Figeroux to Rubenstein’s office where the other lawyers were waiting and they all discussed the fact that this was about Louima and not individual personalities. (Id.) It was also agreed at this time that Thomas would act as spokesperson to the community, and that Scheck and Figeroux would act as liaison with the U.S. Attorney’s Office. (Id . at 208–09; S. Tr. I at 46; Ex. 60).
Scheck testified that an attempt was made to reach a truce and eventually everyone agreed that it was important to work as a team. (S. Tr. I at 42). They also addressed the “importance of not leaking, working in a united way, because in high profile cases dissension among a legal team ... can create serious problems.” (Id.)
They also discussed at that meeting the concept of targeting the Patrolman’s Benevolent Association (“PBA”) because its practices had contributed to covering up police brutality in the past. (Id.) They discussed possible Monell claims and the idea of attacking the procedures by which the PBA and the police department dealt with allegations of police brutality. (Id.) Figeroux and Thomas stated that they had not thought about these ideas, although Thomas mentioned a legislative initiative to require all police officers to live within New York City. (Id. at 43–44).
There was, at that meeting, a general agreement that attorneys’ fees would be split one-third for Mr.

Rubenstein, one-third for T & F, and one-third for CN & S. (Id. at 45). The attorneys also discussed the necessity of providing for Louima’s security when he left the hospital. (Id.) Subsequently, a meeting was held with Ms. Palmer, Figeroux, Scheck, and Rubenstein to discuss compensation for Louima, as well as security arrangements. (Id. at 46–47).
Cochran described the relationship between CN & S and T & F as “oil and water. It was a difficult relationship from the very beginning.” (C. Tr. I at 213). Cochran described Thomas as “not only bellicose, but always threatening.” (Id. at 214).49 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 *21 In late August 1997, the attorneys began to arrange for Louima’s care and to make preparations to bring a civil action on Louima’s behalf.
Neufeld described his primary role in the early part of the case as encompassing three things: (1) improving Louima’s physical health; (2) improving Louima’s mental condition; and (3) retaining an investigative agency to work with CN & S in investigating Louima’s civil rights claims. (N. Tr. I at 19–24). Given concerns about possible long-term damage to Louima’s bladder and blockage to his colon, Neufeld contacted experts at Montefiore, Mt. Sinai and New York Hospitals. (Id. at 19). The lawyers were also concerned about obtaining medical testimony to disprove the claims that Louima’s injuries were the result of gay sex. (S. Tr. I at 51).
Thomas objected to Mt. Sinai and Montefiore Hospitals, allegedly because they mainly treated white patients. (N. Tr. I at 22). In the end, it was agreed, through Neufeld’s efforts, that medical experts would consult with Louima’s doctors at Brooklyn Hospital. (Id. at 20). Neufeld also contacted psychiatric experts at Massachusetts General, Mt. Sinai, and Columbia Hospitals, who had experience dealing with victims of trauma and torture. (Id. at 21). They finally retained Dr. Kasimir, who was familiar with the Haitian experience and with torture victims, as a treating psychiatrist. (Id.; S. Tr. I at 51). Neufeld also worked with Dr. Kasimir during the criminal proceedings in litigating the question of defendants’ access to Louima’s psychiatric records. (N. Tr. I at 21–22). Neufeld also secured other experts to testify on the issue of post-traumatic stress problems. (Id. at 22). Neufeld testified that with respect to both the issue of Louima’s
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

medical and psychiatric care, he consulted with Thomas and Rubenstein. (Id . at 23).
Neufeld attributed the retention of a private investigative agency to the uncertainty of criminal convictions and the fact that there was no guarantee that the government would pursue a pattern and practice case. (Id. at 27). In particular, Neufeld was concerned with the “blue wall” of silence and the possibility that Police Department personnel would attempt to obstruct justice. (Id . at 29). His concerns stemmed from the service of summonses by the police on the owner of Club Rendez–Vous, alleging that they were running a club where there was “inappropriate sexual activity.” (Id.) These summons were served at a time when claims were being made that Louima’s injuries were the result of consensual homosexual activity. (Id.) In searching for an investigative agency, Neufeld interviewed three firms, and he consulted with Thomas and Rubenstein about all three. (Id. at 28). Both Thomas and Neufeld preferred the Walker Investigative Agency, so it was the consensus of all the attorneys that the Walker firm be retained. (Id. at 28).
The Walker Agency interviewed people who were known to Louima at the Club Rendez–Vous on the night of the incident, including members of the band, the Phantoms, that was playing that night. (Id. at 30). The investigators took photographs, inside and outside the Club, as well as photographs of the route taken by the squad car on the way to the precinct. (Id. at 32). One of the things Neufeld was trying to determine was whether there were other witnesses who might have been present when the squad car stopped between the Club and the precinct, during which time Louima claimed he had been beaten by the officers. (Id. at 32–33).
*22 Neufeld also testified that because Louima’s attorneys were interested in pursuing a pattern and practice case, they wanted the Walker Agency investigators to interview other people who alleged that they had been brutalized in the same precinct. (Id. at 34). Mr. Neufeld met with Ms. Cornfeld of the U.S. Attorney’s Office to discuss the pattern and practice investigation. (Id. at 35). At her request, Neufeld arranged a meeting with the police brutality bar to encourage lawyers who had clients claiming police abuse to come forward with their clients and describe not only what happened to them but also the response, if any, of the Civilian Complaint Review Board (“CCRB”) and IAD. (Id. at 35–36). Neufeld testified that he briefed Thomas on his meetings with the police brutality bar and with Leslie Cornfeld. (N. Tr. II at 161). Among other things, Neufeld met with the head of Civil Rights Division of the Department of Justice, who had investigated and prosecuted pattern and practice cases in other parts of the country, not only to lobby the Justice Department to proceed with an investigation into Louima’s case but to

discuss Neufeld’s ideas about appropriate injunctive relief. (Id. at 36–37). Eventually, however, the Justice Department did not file a pattern and practice action. (Id . at 37).
As part of the civil case before this Court, CN & S litigated and obtained authorization to take photographs inside the 70th Precinct to show that the distance between the bathroom, the sergeant’s desk, the interview room and the holding cell was such that it was likely that “every single police officer” on the first floor of the precinct house knew what had happened to Louima and yet chose not to come forward. (Id. at 33). The U.S. Attorney’s Office did not object to what the lawyers were doing; in fact, Neufeld testified that “[CN & S] kept them apprised of the things that we were doing of that nature.” (Id. at 34).
With the authorization of Louima, Neufeld met with the New York State Legislative Black Caucus in New York near the end of September 1997 to discuss the systemic causes of the Louima tragedy and what could be done to remedy them. (Id. at 37–38). Neufeld remembered that either Thomas or Figeroux went with Neufeld to that meeting but had to leave shortly after the meeting commenced. (Id. at 168). Cochran testified that he played a role in organizing “grass roots efforts” in the Black community to support Louima, including contacting Earl Graves of Black Enterprise, Ed Lewis of Essence magazine, Mayor Dinkins, Congressman Rangel, Reverend Sharpton, and Carl McCall. (C. Tr. I at 212). Neufeld also met with the legal counsel to the N.Y. City Council, who turned over all notices of claims that had been filed with the City during the prior year alleging misconduct by police officers. (N. Tr. I at 38–39). Neufeld, working with a group of law students from Columbia University School of Law, divided these notices of claims into categories for the Monell pattern and practice case. (Id. at 38). Neufeld also met with the Counsel to the New York State Assembly to discuss possible legislation. (Id. at 39).
N. Assistance to the Government’s Case *23 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.
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).
*24 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).
*25 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

Neufeld played a role in getting Gregory Normil, Louima’s friend, to cooperate. (Id. at 262).50 Palmer testified that either Thomas or Figeroux first brought Normil to the government. (P. Tr. at 92). It was Thompson’s view that Figeroux “endeavored, like the other attorneys, to get these witnesses to tell us the truth because we had people coming in [and] just outright lying to us.” (T. Tr. at 261). According to Thompson, Figeroux was “instrumental” in keeping everyone informed of Louima’s physical status and Neufeld took the lead regarding the payment of Louima’s medical expenses. (Id. at 229).
Ms. Palmer, however, explained that she “did not feel that Brian [Figeroux] or Carl [Thomas] assisted us. As I said, my interactions with Brian gave me the very strong sense that he was not completely trustful of our investigation. I felt that Barry and Peter and Johnnie, who I interacted with to a lesser extent, did have confidence in our ability ... and were willing to work with us to get it done.” (P. Tr. at 22).
O. The Tacopina Meetings During the investigative phase of Louima’s case, Cochran received a call from Joseph Tacopina, the lawyer representing defendant Thomas Weise, one of the police officers charged in the criminal action. (C. Tr. II at 24–25; S. Tr. I at 64). Tacopina invited Cochran to have lunch and meet with him and Russell Gioiella, Weise’s other attorney. (C. Tr. II at 25; S. Tr. I at 64; N. Tr. I at 40–41). At that time, there was no discussion as to what topics would be covered at the luncheon. (C. Tr. II at 25). There were ultimately two meetings between Tacopina, Gioiella and CN & S—one on November 20, 1997 and one on November 26, 1997. (S. Tr. I at 65; N. Tr. I at 48). The initial lunch meeting occurred at a crowded Italian restaurant in Manhattan and was attended by Tacopina, Gioiella, Cochran and Neufeld. (N. Tr. I at 41). Neufeld testified that it was only at the last minute that Cochran suggested that Neufeld come along, and according to Neufeld, the only thing that was agreed before the luncheon was that neither Cochran or Neufeld would reveal anything that had they learned from their client. (Id .) Not only did they not tell Thomas and Figeroux about the meeting, but according to Neufeld, neither Rubenstein or Scheck was told about this first meeting because “we didn’t think much of it at the time.” (Id. at 41–42).51
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).
*26 A few days later, Tacopina called and asked for a second meeting. (Id.) Since Cochran was out of town, Scheck and Neufeld met with Tacopina for breakfast at the Cupping Room in Soho. (Id. at 44, 46). Scheck attended the second meeting because Weise’s lawyers had indicated that they had useful information about acts of police brutality involving Justin Volpe. (S. Tr. I at 66). Since Weise was a PBA delegate, Scheck thought Tacopina and Gioiella might have information that could be used in connection with Louima’s civil conspiracy claim. (Id.) Even assuming that the information Weise’s attorneys provided was not truthful, Scheck believed that the false information could then be used against Weise in a civil proceeding. (Id. at 66–67). According to Scheck, CN & S made it clear, as a condition of the meeting, that they were not going to say anything regarding what Louima had told them or what they knew about the case; they were just listening. (Id. at 67). They also made it clear that the meeting would not be a secret meeting; it was to be held in a public restaurant on both occasions. (Id.)
T & F contend that they were not told of the meetings with Tacopina in “a deliberate act of exclusion,” “fuel[ing] the impression that [CN & S] sought to exclude [T & F] from important decisions affecting the case.” (T & F Mem. at 26; see also R.S. Tr. I at 96–98, 194–95; F. Tr. I at 138). Indeed, Scheck admitted on cross-examination that there was no effort to include Thomas or Figeroux in either the first or second Tacopina meeting. (S. Tr. I at 149–50). Rubenstein also was unaware of the Tacopina meetings until some time after the meetings had occurred. (R. Tr. at 74). On the other hand, Scheck testified that because Tacopina had appeared on Cochran’s television show “many times,” “it was not a big event that they were asking us to go out to lunch.” (S. Tr. I at 151).
Palmer was shocked when she learned about the Tacopina meetings,52 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).53
*27 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 Brady54 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).55 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).
*28 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

the truth was known and T & F had left the case. (Id. at 32 (citing S. Tr. I at 76–81)).
These accusations are belied by the credible evidence which demonstrates that Scheck conducted the investigation in a deliberate and non-biased fashion. Indeed, upon being asked by Palmer to investigate the genesis of the Giuliani time statements, Scheck first performed a Lexis–Nexis search of every article written about the Louima case in an effort to determine who first said anything regarding the “Giuliani time” statement. (S. Tr. I at 76). Articles in the Daily News and Newsday first attributed the statement to Brian Figeroux at the August 13, 1997 press conference in front of Coney Island Hospital. (Id.) Scheck also spoke to Louima, who told Scheck that while Louima was in the hospital, either late on August 13 or early in the morning on August 14, he spoke to a man, later determined to be Jean–Claude Laurent, a relative of Magalie Laurent, one of the nurses taking care of Louima. (Id. at 74–75). Scheck learned that Laurent had spoken to Louima in Creole and told Louima that he had to make a statement that his attacker had said, “ ‘It’s not Dinkins time. It’s Giuliani time,’ because this would be important to bring attention to [Louima’s] case.” (Id. at 75). Louima then went out on August 14 at the press conference, where he was “in terrible pain, ... [and] on drugs,” and he made the statement. (Id.) Louima did not really know Laurent very well, but he told Scheck that Louima’s brother Jonas might have more information. (Id.)56
*29 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).57 Although Figeroux had never heard Louima mention this remark in any of his prior conversations, Figeroux decided it must be true and revealed it to the press without confirming it with Louima. (F. Tr. I at 172–3; R.S. Tr. I at 19). Figeroux conceded that the note had been thrown away and that Figeroux had “assum[ed]” that Jonas had written it. (F. Tr. I at 169–70). Figeroux also conceded that he had spoken to Louima on three or more occasions prior to the press conference, and that even though Louima had never said anything about the Giuliani time statement during those conversations, Figeroux did not question Jonas about the note because Figeroux “didn’t have the opportunity at that time to speak to anyone” and because he believed it to be true. (Id. at 172–73, 176).
*30 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

testimony was that Figeroux was not even in the hospital room with Louima prior to Louima’s press conference. (R.S. Tr. IV at 6–9). According to Roper–Simpson, she and Thomas were the only ones in the room with Louima and she has no recollection of Figeroux ever discussing the Giuliani time statement with Louima.58 (Id.)
When asked, Figeroux denied considering the political ramifications of the Giuliani time statement, but acknowledged that he knew it would generate a lot of publicity. (F. Tr. I at 167–68). He testified that “[a]t that time we had the opportunity of having the Reverend Al Sharpton and various political leaders there talking about our client being victimized,” and therefore Figeroux thought it was an opportune moment to disclose the statement to the press. (Id. at 165). Figeroux also testified that he understood that ultimately Louima’s credibility would be evaluated against the credibility of the police officers, and that therefore it was important to maintain consistency in Louima’s statements. (Id. at 163–64). Figeroux stated that, “[i]n a million years[,] I would never believe that that statement was false. If I[had] thought it was false, I would not have proffered it.” (Id. at 166). Figeroux thought that since Jonas was there on the night of the incident and had had discussions with Abner, the statement must be truthful. (Id.)
Scheck testified that during his investigation, he also tried to speak to Thomas about the issue but Thomas would not speak to Scheck until sometime during the week between Christmas and New Years, when Scheck finally met with Thomas at Thomas’ offices in Brooklyn. (S. Tr. I at 84). Scheck testified that the statement had an “enormous detrimental effect on both the civil and criminal case, because it was considered by many a blood liable of a kind.” (Id. at 156). “[I]t undermined obviously the credibility that Louima would have at the criminal trial. And I think it undermined the force of our civil case.” (Id.) Scheck subsequently reported to Cathy Palmer and Ken Thompson what he had learned about the Laurents and then the government’s debriefing sessions began again with Louima. (Id. at 89).
Q. Statements to the Press
(1) Louima’s Initial Instructions *31 Although Louima acknowledged the benefits of publicity in bringing his case to the attention of the public (L. Tr. at 130),59 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.60 (C. Tr. I at 197–98; see also R. Tr. at 45).61 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,62 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 *32 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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 “ ‘bloodsucker.” ’ (Id.)
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:
*33 “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).63 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).
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

*34 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.)64
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 220).
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 *35 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).65 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.
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

(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).
*36 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).66 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).67
*37 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 42).
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).68 Although Neufeld testified that he was not privy to all of the discussions because he was working in his office at
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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),69 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 129).70
*38 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 waiver.
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.
(Id.)
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).71
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
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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).
*39 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 255).
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”72 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 dismissed.” (Id.)
*40 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 129–32).
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
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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).
*41 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 community.” (Id .)
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).73
*42 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

‘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. 22).
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 36).
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.74 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:
*43 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 promise.” (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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

“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 Rubenstein. (Id.)
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.
*44 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 5).75
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).76 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, misconduct:
[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.
*45 (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.
(Id.)
The affidavit contained an even more serious charge
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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 CN & S.77

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).
*46 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).
*47 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).78 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. at 250).
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.
*48 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
34

Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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 146).

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).79 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 . at 32–36).

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).
*49 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

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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

Abner, but based on, from general point of view, that’s what I believed.
Q. But you say here that “I observed a change in Abner.” I am trying to find out what change you observed.
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.
*50 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?
A: Right.
Q: What I would like to know is what change did you observe?
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).

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.80 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 95–96).
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).

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

*51 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).81 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).
*52 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 for others.
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, whatever.
.... 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 come out.
(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.
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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.
*53 (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 60).
*54 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).82
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).
DISCUSSION
*55 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.” (Id.)
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 74–75).
A. Jurisdiction 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).83 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”).84
*56 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, 112 S.Ct. 1827, 118 L.Ed.2d 504 (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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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.
*57 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).85
*58 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.
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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. at 452.
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).
*59 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,86 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
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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,87 125 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”).
*60 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 339.88 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, 640 N.Y.S.2d 443, 663 N.E.2d at 601.
*61 Under the Code of Professional Responsibility,89 “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 § 1200.15.90 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
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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 retaining lien).
*62 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).
(2) Application 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.
*63 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.)
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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 constructively discharged.
*64 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.
*65 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,91 Roper–Simpson described a meeting which she attended in Rubenstein’s office
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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.92
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,93 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.
*66 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 zthe 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 of Louima.
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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).
(1) Standing *67 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,94 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. 2–107]”).
*68 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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. 60).
(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).
*69 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).
*70 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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 Louima.
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)).
*71 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, 90 S.Ct. 1441, 25 L.Ed.2d 763 (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, 95 S.Ct. 314, 42 L.Ed.2d 272 (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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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:

Id. at 565.

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.

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.
*72 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 1196.
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

(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 confidentiality.
*73 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).95 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.
*74 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).96 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.97 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.98 The fact that the press may have been speculating as to Figeroux’s role in the Giuliani time statement99 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.100 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

circumstances, much less those present in this case.
*75 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, 71 S.Ct. 37, 95 L.Ed. 610 (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)).
*76 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, 613 N.Y.S.2d 512).
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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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,101 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 *77 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 action.
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,102 “[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, 542 N.Y.S.2d 719). 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, 542 N.Y.S.2d 719). She also conceded that nowhere in her notes had she indicated that she believed Louima would have to pay her. (Id. at 79, 542 N.Y.S.2d 719).
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, 542 N.Y.S.2d 719). 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 181, 542 N.Y.S.2d 719).
*78 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).103 Based on 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 Retainer Agreement].
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, 542 N.Y.S.2d 719).
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).104 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 T & F.105 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.
*79 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).106
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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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 Louimas’ representation.
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
*80 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., 370 F.3d 259, 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.
*81 In determining the reasonable value of the services rendered by an attorney, some courts have considered the
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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, 103 S.Ct. 1933, 76 L.Ed.2d 40 (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 ethical violations.
*82 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 178–79).
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
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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).
*83 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).
*84 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,
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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).
*85 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).107 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.108 (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.109 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).110 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).111 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.112 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).
*86 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
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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 238–241).113
*87 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).114 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 discussed.
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 liens. (Id.)115
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,116 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
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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.
*88 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 $303,175.01.117 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 at 122–26).
*89 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
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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.
*90 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.118
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 driver.
*91 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.”
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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.119 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 *92 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, 7 A.D.3d 11, 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
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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

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).
*93 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]ot 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).
*94 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
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unaware that investigators had been hired and that witness interviews were being conducted by anyone other than the government. (T. Tr. at 249–50).
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,120 and may have
Footnotes

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.
*95 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.
CONCLUSION
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 Cir.1989).
The Clerk is directed to mail copies of this Report and Recommendation to the parties.
SO ORDERED.
	  

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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

1

In August 2001, Thomas died. His interest in this matter is being pursued by his Estate.

2

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.

3

Magistrate Judge Pollack found “Figeroux’s conduct in connection with this fee proceeding to be so beyond the bounds of ethical

conduct that it warrants a referral to the Disciplinary Committee of the Bar and a recommendation that he be barred from further

practice in this Court.” (Id. at 170 n. 119.) Magistrate Judge Pollack declined to make that recommendation “without first affording

Figeroux an opportunity to respond and provide a justification or explanation for his conduct.” (Id.) This issue is not before the

Court at this time.

4

The Court also agrees with Magistrate Judge Pollack’s finding that no forfeiture of the Rubenstein firm’s and CN & S’ attorneys’

fees were warranted.

1

As a consequence of the untimely and unfortunate death of Mr. Thomas in August 2001, his interest in this matter is being pursued

by his Estate. (Supplemental Memorandum of Law in Opposition to Plaintiffs’ Application for Fee Forfeiture and for Recovery of

Fees Due (“Estate Mem.”) at 1). Prior to the hearing, an issue arose as to the extent to which conversations with Mr. Thomas could

be related by other witnesses in light of the restrictions of the Dead Man’s Statute. That was the subject of a separate Order of this

Court dated November 14, 2002, and will not be addressed herein.

2

At the time the Louima family first contacted Messrs. Thomas and Figeroux, the firm of T & F did not exist. The two lawyers

subsequently joined as a firm and remained as such until the untimely and unfortunate death of Carl Thomas in August 2001.

(Estate Mem. at 1). For purposes of this Report, the two attorneys will be referred to as “T & F” regardless of whether they had

formally joined as a firm at the time. Similarly, Messrs. Cochran, Scheck and Neufeld were not joined as a single firm when they

were initially retained by Louima. (See Retainer Agreement, dated November 3, 1997, Ex. 2). According to Peter Neufeld, CN & S

was formed after the commencement of the Louima litigation so that the lawyers in the firm could focus primarily on civil rights

cases, “where the cases themselves could perhaps be a basis for systematic reform.” (Transcript of Testimony of Peter Neufeld,

October 24, 2002 (“N. Tr. I”), at 12). For ease of reference, the three attorneys are referred to herein as “CN & S.”

3

CN & S have filed a separate motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. §

1927 based on an affidavit filed by Figeroux in connection with the fee proceedings. That motion has not been fully briefed and

will not be addressed herein.

4

See discussion infra at 59.

5

In their original memorandum of law filed prior to the fee hearing, T & F asserted that not only were they entitled to one-third of

the total attorneys’ fees as set forth in the fee sharing agreement with CN & S, but they were seeking an award “substantially in

excess of 50 percent.” (T & F Mem. of Law dated April 18, 2001 at 23–24). However, during the hearing, counsel for T & F

indicated that they would not seek more than the one-third provided for in the agreement that was entered into between counsel.

(See Transcript of testimony of Sanford Rubenstein on November 18, 2002 (“R.Tr.”) at 83). Subsequently, in T & F’s post-hearing

submissions, T & F reversed position again, arguing that they were entitled to more than 50% of the total attorneys’ fees. (T & F

Post–Tr. Br. at 74–76).

6

Since this dispute arises in the context of T & F’s right to enforce a charging lien under N.Y. Jud. Law § 475, it is considered an

equitable action to which no right to a jury trial attaches. See In re Rosenman & Colin, 850 F.2d 57, 60 (2d Cir.1988) (holding “[i]n

the context of both attorneys’ liens and other liens, such actions have repeatedly been regarded as equitable in nature so that no

jury right attaches” and citing Damsky v. Zavatt, 289 F.3d 46, 53 (2d Cir.1961)); see also In re King, 168 N.Y. 53, 58–59, 60 N.E.

1054, 1056 (1901) (holding that an attorney’s lien is an equitable remedy); Flores v. Barricella, 123 A.D.2d 600, 506 N.Y.S.2d

885, 886 (2d Dep’t 1986) (striking jury demand in suit for enforcement of attorneys’ lien).

7

Citations to “Compl. ¶ ” refer to paragraphs in the Louimas’ Third Amended Complaint.

8

On May 25, 1999, Justin Volpe entered a plea of guilty to the assault on Louima in the bathroom of the 70th Precinct and to

beating Louima in the police car on the way to the station. (Compl.¶¶ 52–53).

9

Citations to “L. Tr. at ” refer to pages in that portion of the hearing transcript of November 14, 2002 when Louima testified.

10

Citations to “M. Tr. at ” refer to pages in the hearing transcript of November 18, 2002 when Jovens Monceour testified. Citations

to “F. Tr. III at ” refer to pages in the hearing transcript of October 22, 2002 when Brian Figeroux testified. Citations to “F. Tr. I at

” and “F. Tr. II at ” refer to pages in the hearing transcripts of October 17 and 18, 2002, respectively, when Figeroux also testified.

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11

Louima could not recall exactly how his brother had gotten the names of Thomas and Figeroux. (L. Tr. at 54).

12

Ms. Roper–Simpson’s testimony in this regard is somewhat confusing. At first, she testified that, while she did not have a written

agreement with Louima, she could not say with certainty whether she had an oral agreement with him. (See Transcript of testimony

of Casilda Roper–Simpson on November 22, 2002 at 178–84). She testified that she could not “positively respond” to the question

of whether “Abner Louima [ ] or Micheline Louima ever orally retained [her].” (Id. at 178, 506 N.Y.S.2d 885). However, she then

claimed during cross-examination, that she suddenly recalled that “when we left the [August 1997] press conference [,] ... Mr.

Louima expressed his appreciation for us and our involvement in the case as his attorneys and being that I as an attorney was also

there, I can also make a legitimate argument that [ ] was an oral agreement [with Mr. Louima].” (Id. at 184, 506 N.Y.S.2d 885).

See discussion infra at 139–44.

13

Citations to “R.S. Tr. I” refer to Roper–Simpson’s testimony on November 21, 2002; “R.S. Tr. II” refers to her testimony on

November 22, 2002; “R.S. Tr. III” refers to her testimony on December 2, 2002; and “R.S. Tr. IV” refers to her testimony on

December 3, 2002.

14

Unless otherwise indicated, “Ex.” refers to exhibits submitted by CN & S during the fee hearing.

15

According to Louima, McAlary’s decision to visit Louima in the hospital had nothing to do with T & F. (L. Tr. at 90). Indeed, in a

deposition of Figeroux taken on June 20, 2002, by Ronald Fischetti, Esq., who represented Officer Charles Schwarz in the criminal

prosecution, Figeroux told Fischetti that McAlary had called him. (Ex. 41 at 14; F. Tr. III at 38).

16

Figeroux testified during the deposition by Fischetti that he could not recall whether he was present when Giuliani visited Louima

in the hospital. (Ex. 41 at 17).

17

Citations to “S. Tr. II at” refer to pages in the hearing transcript of October 17, 2002 in which Barry Scheck testified. Citations to

“S. Tr. I at ” refer to those pages in the hearing transcript of October 16, 2002, where Scheck also testified.

18

Citations to “T. Tr. at “ refer to pages in the transcript of testimony by Kenneth Thompson on November 22, 2002.

19

Ms. Palmer joined the Office in 1985 and worked as a prosecutor there for approximately eleven years in total, spread out over two

periods of time. (Testimony of Cathy Palmer, Esq., dated October 25, 2002 (“P.Tr.”) at 3–4). At the time of the hearing, Ms.

Palmer was a litigation partner at Latham & Watkins. (Id. at 3, 506 N.Y.S.2d 885).

20

Ms. Lynch, who did not testify at the hearing, was subsequently appointed as the United States Attorney for the Eastern District of

New York.

21

Mr. Vinegrad joined the Office in January 1990, where he was appointed Chief of Civil Rights Litigation in April 1994, Chief of

General Crimes in November 1994, and Deputy Chief of the Criminal Division in August 1995. (V. Tr. at 233). He left the Office

to become a partner at Wachtel and Masyr, only to return to the Office as Chief of the Criminal Division in September 1998,

serving in that position until August 1999 when he became Chief Assistant U.S. Attorney. In June 2001, he was appointed as

Interim U.S. Attorney. (Id. at 234, 506 N.Y.S.2d 885). At the time of his testimony, Mr. Vinegrad was serving as Senior Litigation

Counsel in the Office. (Id.) Citations to “V. Tr. at “ refer to pages in the hearing transcript of October 17, 2002 when Alan

Vinegrad testified.

22

According to the testimony of AUSA Palmer, Thompson received the call from Carl Thomas “the night before the McAlary article

broke.” (P. Tr. at 7).

23

Thompson testified that he did not believe Thomas used the word “sodomized,” but rather that he said “raped.” (T. Tr. at 218).

24

Mr. Thompson referred to Mr. Hynes by his nickname, “Joe.”

25

The press later reported that there was a “rift” between two factions of the Louima family over the retention of T & F. (Exs.27, 29).

26

Citations to “Compas Tr. at “ refer to pages in the transcript of the hearing on November 14, 2002 in which Dr. Jean Claude

Compas testified.

27

The doctor testified that he has also known Roper–Simpson “fairly well” for “maybe ten years.” (Compas Tr. at 166).

Roper–Simpson, however, denied ever meeting Dr. Compas prior to the Louima matter, although she conceded that the doctor

knew her sister and that the two are often confused with each other. (R.S. Tr. I at 131).

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28

Rubenstein testified that from time to time, Dr. Compas would refer cases to Rubenstein, but there was no money exchanged in

connection with these referrals. (R. Tr. at 31).

29

Roper–Simpson kept a diary of her initial involvement with the Louima matter beginning on August 12, 1997 and ending on

September 4, 1997. (Exs.84, 84–O).

30

See also Exhibit 29, quoting Thomas as telling Rubenstein, “ ‘I think you’re an obsequious piece of s ___....You’re a bloodsucker!

You only pimp off our community.%” ’

31

Roper–Simpson’s law partner, Emmanuel Roy, testified that he had been told by Dr. Jean Claude Compas that Rubenstein had

asked Dr. Compas “to get him into the case.” (Testimony of Emmanuel Roy, November 21, 2002 (“Roy Tr.”) at 114, 121).

However, this testimony was objected to at the hearing, and indeed is inadmissable hearsay. In addition, Louima denied that Dr.

Compas played any role in the decision to hire Rubenstein, as did Rubenstein, who denied that he sought out Dr. Compas regarding

the case. (L. Tr. at 13; R. Tr. at 34). Perhaps the most important testimony in this regard came from Dr. Compas. Dr. Compas

denied that Rubenstein ever asked him to get Rubenstein involved in the case, and Dr. Compas testified that he was not involved in

the family’s decision to retain Rubenstein. (Compas Tr. at 173–74). His testimony is corroborated by Ms. Roper–Simpson’s own

notes in her personal diary, which state “ ‘Dr. Compas apparently called Rubenstein.” ’ (R.S. Tr. III at 23; Ex. 84). The testimony

relating to the retention of Rubenstein and Rynecki is relevant to Ms. Roper–Simpson’s allegations that Mr. Rubenstein violated

the Disciplinary Rules by the manner in which he became involved in this case. In this regard, the Court credits the testimony of

Dr. Compas and Mr. Rubenstein and finds no ethical violation in the retention of the Rubenstein Firm. See discussion infra at

169–74.

32

Rubenstein conceded that he was one of the lawyers who favored the addition of the punitive damages amount in the Amended

Notice of Claim. (R. Tr. at 70).

33

Citations to “C. Tr. I at” refer to pages in the hearing transcript of November 14, 2002 when Johnnie Cochran testified. Citations to

“C. Tr. II at” refer to pages in the hearing transcript of November 22, 2002.

34

Although Cochran’s testimony as to what Ms. Washington said to him is clearly hearsay, no objection was raised to its

admissibility at the hearing. (See C. Tr. I at 180).

35

Cochran did not recall the date of this visit, but the autographed page from the copy of his book that he gave to Roper–Simpson

during that visit is dated August 23, 1997. (Ex. KC–11). Roper–Simpson also could not recall the date, but remembered it was a

Saturday, which August 23, 1997 was. (R.S. Tr. I at 65–66).

36

However, Roper–Simpson did not recall Scheck accompanying Cochran on his first visit to the hospital. (R.S. Tr. I at 67). Indeed,

it is unclear whether Scheck was present during Cochran’s first, or his second visit to the hospital. Cochran testified that, although

he could not remember for certain, he thought that Scheck was not present during his first visit. (C. Tr. I at 183). However, Scheck

recounted a conversation with Louima, involving Louima’s concern that the retention of additional attorneys would increase the

cost of the total attorneys’ fees above one third of any eventual recovery (S. Tr. I at 28–29), which Cochran testified occurred

during his first visit to the hospital. (C. Tr. I at 188–89). Louima also testified to this conversation, but he recalled it taking place

during the second meeting at the hospital. (L. Tr. I at 21–22).

37

According to Figeroux and Roper–Simpson, they were both present for the August 23, 1997 meeting but Thomas was not. (F. Tr.

III at 17; R.S. Tr. I at 66–67).

38

Roper–Simpson denies that there was any discussion of Cochran’s retention by Louima during that first meeting. (R.S. Tr. I at 70).

39

Louima also testified that Scheck and Neufeld were present for this meeting. (L. Tr. at 20). However, this recollection appears to

be mistaken since, as set forth in note 36, supra, it is unclear whether Scheck was present, and Cochran testified that Neufeld was

out of town. (C. Tr. I at 192). Indeed, Neufeld testified that he was out of the country until August 26, 1997, and that he first visited

Louima on that date after learning that he, Cochran and Scheck had been retained to represent Louima. (Testimony of Peter

Neufeld on October 24, 2002 “N. Tr. I” at 13–14; Citations to “N. Tr. II at” refer to pages in the hearing transcript of October 25,

2002 when Neufeld testified.)

40

Cochran testified that he could not recall if either Thomas or Figeroux were present at the second meeting. (C. Tr. II at 92).

However, Louima testified that he told Thomas and Figeroux that he had retained Cochran after the fact. (L. Tr. at 109). Indeed,

Roper–Simpson testified that she was not told that Louima intended to hire CN & S until Louima gathered all the attorneys

together at the hospital. (R.S. Tr. I at 76–78).

41

Cochran testified that he was not sure if the retainer was typed on August 25, 1997, or signed on that date, or both. (C. Tr. I at

190–91, 194).

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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

42

Roper–Simpson testified that this meeting occurred on the same day as the “lap-top incident,” see discussion infra at 31, which she

testified took place on August 25, 1997. (R.S. Tr. I 76–80; R.S. Tr. II at 197). However, Roper–Simpson also testified that Neufeld

attended the meeting at the hospital (R.S. Tr. I at 80), and Neufeld was out of the country until August 26, 1997. (N. Tr. I at 13).

43

Roper–Simpson testified that Cochran was not present at this first meeting of the lawyers; she testified that only Thomas, Figeroux,

Neufeld, Rubenstein and Scheck were there with her and Louima. (R.S. Tr. I at 76).

44

In dividing up the fees, the Agreement referenced the firm of T & F but made no mention of Roper–Simpson, and her signature

does not appear on the document.

45

Neufeld testified that he was uncertain as to whether he actually attended this meeting. (N. Tr. II at 265–66). Roper–Simpson

testified that this initial joint meeting of attorneys took place immediately after Louima gathered the attorneys in his hospital room

and instructed them to work as a team. (R.S. Tr. I at 81–85). She also testified that Cochran was not present. (Id. at 81, 506

N.Y.S.2d 885).

46

Cochran also testified that Mr. Rynecki may have been there. (C. Tr. I at 199).

47

Cochran confirmed this testimony, stating that Figeroux got up, used an obscenity and slammed down the top of the computer,

saying “ ‘[a]re you trying to f’ing intimidate me by using this technology?” ’ (C. Tr. I at 200).

48

Figeroux denied that he was “anti Jewish.” (F. Tr. I at 136). He stated: “Me, I am not anti anything. What I am, you don’t have to

be pro something, you don’t have to be anti anything. To be pro for people of color, you don’t have to be anti white or anti Jewish

whatever. In fact, what I think is that we need to learn from people who have succeeded. Like the Jews, they have succeeded. They

have succeeded for specific reasons. If they succeed, then we can emulate that.” (Id.) According to Mrs. Thomas, her husband was

active in the Jewish community, serving as a member of the Board of Trustees of Kingsbrook Jewish Medical Center. (Transcript

of Testimony of Elizabeth Thomas, dated December 5, 2002 (“Thomas Tr.”), at 38–39). She testified that she never heard him utter

anti-Semitic remarks. (Id. at 38, 506 N.Y.S.2d 885). Mr. Thompson also testified that he never heard Thomas make anti-Semitic

comments about Scheck or Neufeld nor could he recall ever hearing Thomas make such remarks about anyone. (T. Tr. at 226–27).

49

Roper–Simpson confirmed this view of Thomas, testifying that “[h]e yelled most of the time, I would say a good 60 to 70 percent

of the time. That’s just the way he spoke. He was a loud person. (R.S. Tr. III at 39). Thompson, however, testified that he did not

consider Thomas to be “bellicose,” a “yeller and a shouter,” but rather described him as “outspoken.... He was the type of person

who was very intelligent and he was a proud person and where others would probably back down, I don’t think Carl would.” (Id. at

227, 506 N.Y.S.2d 885).

50

Neufeld confirmed that Figeroux was present for at least one interview with Gregory Normil, a cousin of Louima’s, concerning

this investigation. (N. Tr. I at 50).

51

Scheck, however, testified that he “had knowledge that the first meeting was going to take place.” (S. Tr. I at 67).

52

Although Thompson testified that the government learned about the Tacopina meetings sometime prior to the termination of T &

F’s representation (T. Tr. at 267), Ms. Palmer was adamant that she did not learn of the Tacopina meetings until February or early

March of 1998, after the indictment was returned, which occurred on February 26, 1998. (P. Tr. at 45, 47, 49). Scheck, however,

testified that Palmer confronted him with her knowledge of the Tacopina meetings “some time in January.” (S. Tr. I at 69).

53

Scheck explained that CN & S did not seek the government’s approval prior to the meetings because if Tacopina related things that

Weise had said to the authorities during his “GO–15” internal NYPD investigative hearing that might be immunized, CN & S did

not want the prosecutors to learn information that would possibly taint the prosecution. (S. Tr. I at 67–68).

54

See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

55

At the time, there was a mayoral race in which Mayor Giuliani was running against, among others, Reverend Sharpton and Ruth

Messinger. (S. Tr. I at 71).

56

During this portion of his testimony, Scheck related conversations involving Louima. There were no objections raised to the

admission of this testimony.

57

This testimony by Figeroux contradicts his prior statement given during the course of an FBI interview on April 18, 2002 in which

he told the FBI that “[t]here was nothing about ‘Giuliani time’ on the note” but rather, “Jonas spoke to Figeroux and told Figeroux

about the ‘Giuliani time’ statement.” (Ex. 44).

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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

58

Indeed, she told the FBI that she had never discussed this statement with Louima. (Ex. 45 at 5).

59

In addition to the interview with McAlary, and Louima’s statements to the press from his hospital bed, on August 14, 1997,

Thomas and Figeroux appeared on 20/20 with Ted Koppel, and, along with Roper–Simpson, they also appeared on the Gabe

Pressman Sunday Morning Show. (R.S. Tr. I at 49). According to Roper–Simpson, “[t]here was a lot of time devoted to the press,”

particularly by Thomas and Figeroux. (R.S. Tr. I at 50).

60

Later, it was agreed that Thomas would be the “lead” attorney as far as the public was concerned but Cochran would still be in

charge of decision-making. (L. Tr. at 25). However, Louima also instructed the attorneys to clear press matters with him. (Id . at

26–27).

61

T & F argues that Louima’s testimony in this regard is “muddled,” pointing to Louima’s testimony on cross-examination that in

January 1998, he instructed the attorneys not to speak to the press without prior clearance (L. Tr. at 118), and his later testimony

that he issued this instruction in response to a Village Voice article dated September 2, 1997. (Id. at 130–31; Ex. 29). This article

was published approximately one week prior to that date. (S. Tr. I at 90). However, while Louima’s recollection of the chronology

of his instructions was vague, it appears that, rather than contradicting himself, Louima may have been referring to distinct

occasions on which he instructed the attorneys regarding their contacts with the media. (L. Tr. 111–19, 130–31).

62

Rubenstein testified that he obtained Louima’s permission before speaking to Vanity Fair. (R. Tr. at 45; Ex. 27).

63

Marie Brenner is the author of the Vanity Fair article.

64

See also Ex. 37 (Newsday article dated January 18, 1998 by Jimmy Breslin discussing the retraction.)

65

When asked if he was upset at Thomas as well, Louima replied that he didn’t specifically recall any leaks involving Thomas. (L.

Tr. at 31–32).

66

Although all of the other witnesses testified that this January 23, 1997 meeting occurred at CN & S’ offices at 99 Hudson Street,

Roper–Simpson testifed that she was “150 percent” sure that the meeting had been at Rubenstein’s office. (R.S. Tr. III at 139).

67

Roper–Simpson testified that what Louima said was: “ ‘Well, last week you had offered your resignation and I’m willing to accept

your resignation today if you still want to give it or I have to let you go.’ And then I was in shock, I looked at Brian and then I

looked at Carl and Carl seemed a little astonished and Carl said, like he went ‘okay’ and we left.” (R.S. Tr. I at 128). Figeroux

testified that Rubenstein had earlier said to him “ ‘listen Brian, all you have to do is stay on this case, you do nothing. You collect

your money at the end of the case and move on. Do nothing, collect your money. It’s either that or you quit, you’ll be fired.” ’ (F.

Tr. III at 21).

68

Ms. Thomas was asked a series of questions about her husband’s behavior and demeanor around the time of this meeting. She

stated that although her husband was originally “very excited” and enthusiastic about the case (Thomas Tr. at 44), he “became very

troubled. He went from being very enthusiastic ... and putting all of his energy [into the case] which he continued right until he

came off. But he became increasingly troubled in his interactions with the new team, Mr. Cochran and his team.” (Id. at 47). Ms.

Thomas testified that, prior to attending this meeting in January, Mr. Thomas stated that he “thought .... [t]hat he was going to be

kicked off the case.” (Id. at 59). Later that night, after this meeting, he came back very upset, breathing heavily. (Id. at 60).

69

Louima identified Exhibit 8 as the letter that was drafted that day after T & F left, instructing them not to talk about Louima’s case.

(L. Tr. at 30).

70

Roper–Simpson stated that the letter came by messenger ten to fifteen minutes after they had returned to Thomas and Figeroux’s

office. (R.S. Tr. I at 129).

71

See discussion infra at 84–86.

72

Although Rubenstein was questioned about this article and asked if he was the source of this information, Rubenstein denied being

the one who made these statements to Pierre–Pierre, while at the same time acknowledging that he knew the reporter and had been

asked for information about the Louima matter. (R. Tr. at 63–65).

73

As Roper–Simpson conceded, however, it was Rubenstein who prepared the initial Notice of Claim (R.S. Tr. I at 144–45; R. Tr. at

39), and that in being critical of the amount, Cochran “was sort of putting down Mr. Rubenstein’s amount that he put [in] the

original Notice of Claim.” (R.S. Tr. I at 144–45).

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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

74

CN & S later added to their complaint of wrongdoing the allegation that T & F further injured Louima’s interests by alleging in

their fee papers, particularly in the December 19, 2001 Affidavit of Mr. Figeroux, that Louima and CN & S had engaged in a

scheme to suborn perjury. (Affidavit of Peter Neufeld, dated January 25, 2002 (“Neufeld Aff.”), at ¶¶ 8–17; S. Tr. I at 4–6). See

discussion infra, at 79–80.

75

At the hearing, it appears as though T & F are now arguing that they were entitled to resign because they were “never allowed to

serve in their role as lead counsel” and otherwise were “marginaliz[ed].” (S. Tr. I at 9).

76

This claim was, of course, subsequently contradicted by Figeroux’s own testimony at the hearing. (See discussion supra at 75; see

also F. Tr. II at 24–25, 27, 40–45).

77

It should be noted that not only did these new allegations not appear in the April 18, 2001 Memorandum filed by T & F’s counsel,

but the claims were also not made in any of the legal submissions filed by Ms. Roper–Simpson. Although Ms. Roper Simpson’s

affidavit, dated March 29, 2001 (“Roper–Simpson Aff.”), alleges that the manner in which CN & S came into the case constituted

a violation of ethical rules, she says nothing regarding the Tacopina meetings or a change in Louima’s testimony. (Roper–Simpson

Aff. of Mar. 29, 2001 ¶¶ 25–33).

78

Palmer testified that, if she had known that CN & S were interviewing individuals who were potential witnesses in the criminal

case without her knowledge or consent, she would have found that to be problematic. (P. Tr. at 73). However, Palmer also stated

that the government had asked CN & S for assistance on several occasions in investigating certain matters related to the criminal

case. (Id. at 70–71).

79

Figeroux conceded that he had read the April 30 article in the New York Sun and that he knew that his December 19th affidavit was

the subject of discussion among the lawyers and the judge in the Schwarz trial. (F. Tr. I at 129).

80

Thompson testified that Thomas learned about the Tacopina meetings from newspaper accounts. (T. Tr. at 285, 287). The first

newspaper accounts of the Tacopina meetings were published in November of 1998. (Id. at 287).

81

It is unclear in what way Figeroux believed the error had been remedied. Indeed, as of the date of the hearing no correction had

been filed with this Court.

82

Neufeld also was adamant in his conviction that there was “absolutely no change in Abner’s testimony.” (N. Tr. I at 123, 130–134).

Even Roper–Simpson failed to support Figeroux’s allegations. Indeed, during the fee hearing, Roper–Simpson testified that she

never saw a change in Louima’s testimony of what had occurred (R.S. Tr. I at 195), and that, apart from the Tacopina meetings,

she had never discussed with either Thomas or Figeroux the alleged claim that Scheck was improperly meeting with witnesses and

preparing them improperly. (Id. at 191–194).

83

It is also clear that the district court may refer a motion for attorney’s fees to the magistrate judge. See Fed.R.Civ.P. 54(d)(2)(D).

Pursuant to Fed.R.Civ.P. 72(b), the magistrate judge may enter a report and recommendation determining and fixing the amount of

a charging lien. See Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 177 (2d Cir.2001); Rajaratnam v. Moyer, 47 F.3d

922, 924 n. 5 (7th Cir.1995); Estate of Connors v.. O’Connor, 6 F.3d 656, 658–59 (9th Cir.1993) (stating that it was error for

magistrate judge to issue final order, rather than report and recommendation, on post-judgment fees motion); cf. Cohen v. N.Y. City

Health & Hosp. Corp., No. 99 CV 3896, 2001 WL 262764, at *1–2 (S.D.N.Y. March 16, 2001) (issuing final order regarding

amount of charging lien without indication that the parties had consented to referral for all purposes to the magistrate judge).

84

Even if this fee issue was not governed by federal law, this Court would have jurisdiction to rule on the dispute under the doctrine

of supplemental jurisdiction. See Chesley v. Union Carbide Corp., 927 F.2d 60, 64 (2d Cir.1991).

85

See also Klein v. Eubank, 87 N.Y.2d 459, 462, 663 N.E.2d 599, 600, 640 N.Y.S.2d 443, 444 (1996) (stating that “under both the

statute and our precedents, an attorney’s participation in the proceeding at one point as counsel of record is a sufficient predicate

for invoking the statute’s protection”).

86

See Roper–Simpson’s Memorandum of Law, dated March 29, 2001 (“R.S.Mem.”) at 10; see also Post Hearing Memorandum of

Law of Casilda Roper–Simpson, dated April 21, 2003 (“R.S.Post–Tr.Br.”) at 9. See discussion infra at 139–44.

87

In Allen, the attorney sought to terminate his representation because he was “under a misapprehension” of the amount of work that

would be required in the case. The Second Department found that there were issues of fact requiring a trial as to whether the

attorney’s unilateral withdrawal was prompted by his own financial concerns, which would effectively constitute abandonment of

his client, or whether he withdrew, as he claimed, because of the client’s misconduct. 125 A.D.2d at 279–280, 509 N.Y.S.2d at 50.

88

Although not specifically argued by CN & S here, this Court notes that the various public disclosures by T & F during the course

of settlement negotiations in this case created problems for the settlement process and prompted the issuance of a gag order when T

& F refused to voluntarily refrain from speaking to the press.

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Louima v. City of New York, Not Reported in F.Supp.2d (2004)

89

The Disciplinary Rules of the Code of Professional Responsibility have been jointly adopted by the Appellate Divisions of the

State of New York and are binding upon attorneys practicing in New York. See N.Y. Comp.Codes R. & Regs., tit. 22 §§ 603.2,

691.2, 806.2, 1022.7.

90

A determination that a withdrawal is permissible for an attorney who has appeared on behalf of a client before a court is distinct

from a finding that any termination was or was not “for cause” for purposes of that attorney’s right to compensation. See, e.g.,

Casper v. Lew Lieberbaum & Co., Inc., 1999 WL 335334, at *5 (granting motion to withdraw based on irreconcilable conflict but

finding that discharge was not “for cause” for purposes of fee determination).

91

Mr. Scheck testified that the meeting at which he addressed the Guiliani time statement with Figeroux was sometime before

Christmas 1997 (S. Tr. I at 84), which was several weeks before the first printed articles discussing Louima’s retraction of the

Guiliani time statement appeared in the Daily News and The New York Times on January 15, 1998. (See Exs. 35, 36).

92

The Court also notes that it was not until her testimony in the fee proceeding that Roper–Simpson ever raised this claim. (R.S. Tr.

III at 167).

93

To the extent that T & F attempt to argue that CN & S’ failure to inform them of the Tacopina meetings in violation of the retainer

agreement was a basis for justifying their withdrawal, this Court finds that T & F did not become aware of the Tacopina meetings

until long after the January 23, 1998 termination and thus, the Tacopina meetings could not have been considered by T & F at the

time they withdrew as counsel. (See discussion infra at 173–74).

94

Roper–Simpson was not a party to this agreement.

95

While the Civil Court’s ruling in General Realty did allow an attorney to testify regarding a privileged communication in the

absence of a pending or contemplated civil or criminal proceeding against that attorney, the sole case cited by the Court was

Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190. In Meyerhofer, the attorney invoking D.R. 2–101(C)(4) was a

named defendant in a civil suit. In any event, although not mentioned by the Court in General Realty, the former client in General

Realty had placed the privileged communication at issue in her landlord-tenant dispute, thereby waiving the privilege as to that

communication. In addition, T & F rely on Stirum v. Whalen, 811 F.Supp. 78, 84 (N.D.N.Y.1993). However, in Stirum the

attorneys seeking to disclose client confidences were named defendants in a civil action for fraud. Id.

96

Figeroux contends that, contrary to the claims of CN & S, his repetition of the Giuliani time statement to the press does not warrant

his forfeiture of fees because Figeroux simply had no reason to believe that Jonas would “invent a lie” or that Louima would

thereafter ratify the statement to the press. (T & F Post–Tr. Br. at 21). T & F contend that it was Figeroux’s trust in Louima and his

family, coupled with Louima’s failure to tell the truth, that led to the problems faced by Louima later during the criminal trials. (Id

. at 21–22). Although the Court finds that Figeroux’s repetition of the Guiliani time statement to the press without first confirming

it with Louima was irresponsible and reckless, this incident alone would not, in this Court’s view, justify a forfeiture of fees and

the Court has not relied on this incident in reaching its recommendation here.

97

In this regard, the Fifth Circuit has held that even where the client waived the privilege by suing his attorney for malpractice, the

waiver does not extend to all subsequent proceedings such as criminal charges in which the communications are relevant. See

United States v. Ballard, 779 F.2d 287, 292 (5th Cir.1986).

98

T & F have also contended that their response was “restrained.” (Transcript of Hearing on Oct. 16, 2002 at 9). Not only were T &

F’s statements to the press anything but restrained, but the suggestion to the press that there were “ethical” problems with the way

the case was being handled prejudiced Louima individually, by criticizing not only the attorneys but Louima as well, and raising

issues of his credibility that potentially prejudiced him in the criminal proceedings.

99

Indeed, any diligent investigative reporter could have discovered that Figeroux was the first to repeat the Giuliani time statement

publicly by doing a simple Lexis–Nexis search.

100 T & F also point to a purported quote from Rubenstein in a January 28, 1998 Daily News article that the Giuliani time statement was the subject of a federal probe. (Ex. 14). While Rubenstein admitted that he had provided other information to the author of this article, Rubenstein denies making this statement, stating that the language was a mischaracterization of what he actually said. (R. Tr. at 89–91). Even if Rubenstein had made this statement, it does not invite response from T & F nor does it justify their statements to the press.

101 There has been no evidence of any ethical violations by Ms. Roper–Simpson, who appears to have acted in Louima’s interest at all times and did not have any discussions with the press that were not authorized.

102 She testified during the fee proceeding that she was never an associate in the firm of T & F, nor a partner either. (R.S. Tr. III at 130).

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Louima v. City of New York, Not Reported in F.Supp.2d (2004)
103 In addition, D.R. 2–106(d) requires all contingent fee agreements to be documented in a writing provided to the client. D.R. 2–106(d), 22 N.Y. Comp.Codes R. & Regs., tit. 22, § 1200.11.
104 This Retainer Agreement lists Rubenstein & Rynecki, Thomas & Figeroux, and Johnnie Cochran, Barry Scheck and Peter Neufeld. (Ex. 2). Roper–Simpson’s name does not appear anywhere in the document. (Id.)
105 Her actions and those of T & F in reaching a fee-splitting agreement also arguably violate the Disciplinary Rules. D.R. 2–107 prohibits the division of fees for legal services with an attorney who is not a partner or associate in the lawyer’s firm except with the client’s consent. D.R. 2–107, N.Y. Comp.Codes R. & Regs., tit. 22, § 1200.12.
106 He also testified that the firm of T & F was actually created on the same day Figeroux came back from his first visit with Louima in the hospital and met with Thomas. (F. Tr. III at 64). From the chronology of events, it appears that Roper–Simpson became involved shortly thereafter.
107 They also claim that they assisted Rubenstein in filing the initial Notice of Claim. (T & F Post–Tr. Br. at 9; Ex. 3). Rubenstein, however, testified that the initial Notice of Claim was prepared by Mr. Rynecki and brought to Brooklyn Hospital on August 15, 1997 where it was signed by Louima. (R. Tr. at 39). While T & F may have reviewed it prior to the filing, neither Thomas or Figeroux signed the Notice of Claim, and Rubenstein’s testimony suggests that his firm did the bulk of the work associated with the first Notice of Claim.
108 Roper–Simpson also claimed that she spent an extended amount of time successfully defending more than a hundred persons arrested for protesting on Louima’s behalf, which she did without compensation. (R.S. Tr. I at 62–65). However, she failed to present any evidence that Louima had authorized her to do such work or more importantly agreed to pay for it. Nor has she presented a single authority authorizing payment of fees from one client, without authorization, for work performed for other clients in circumstances similar to these.
109 However, the failure to provide contemporaneous time records is not fatal to T & F’s claim for fees. See 601 West Assocs, LLC v. Kleiser–Walczak Constr. Co., No. 03 CV 7942, 2004 WL 1117901, at *5 (S.D.N.Y. May 18, 2004).
110 Neufeld testified that, although he asked on more than one occasion for any notes or files that Thomas, Figeroux, or Roper–Simpson had kept that related to Louima’s case, he was told that they had no notes or files. (N. Tr. I at 89). During his deposition by Mr. Fischetti, Figeroux testified that he did not take any notes of what was said by Louima nor did he recall the specifics of their discussions during the first days. (Ex. 41 at 10).
111 Roper–Simpson testified that “most of the time ... I was sitting [in the hospital] with [Louima], I would be reading a book. My job if you will was to make sure that no one spoke to him without an attorney being there.” (R.S. Tr. I at 42)
112 Although Neufeld testified that he may have kept some time records related to the Louima matter, neither the CN & S attorneys nor Rubenstein have submitted any time records to this Court in support of their motion.
113 According to Neufeld, T & F and Roper–Simpson “had absolutely no role” in the research and drafting of the various Complaints, Exhibits 47, 48 and 49, even though that “research ... was ongoing while they were still involved in the case.” (N. Tr. I at 67).
114 Neufeld testified that, in the fall of 1997, when he first mentioned pursuing this novel course of action against the PBA, Thomas and Figeroux “thought that the idea was stupid,” and “declined specifically to offer any assistance in the drafting of these pleadings.” (N. Tr. I at 63–64).
115 Although T & F appear to question Rubenstein’s right to recover his share of the fee based on the amount of work he performed, the courts have held that regardless of the amount of an attorney’s contribution, he does not forfeit his fee as long as he never refused to contribute more substantially. See, e.g., Sterling v. Miller, 2 A.D.2d 900, 157 N.Y.S.2d 145, 147 (2d Dep’t 1956), aff’d, 3 N.Y.2d 778, 143 N.E.2d 789, 164 N.Y.S.2d 32 (1957). Of course, with regard to T & F, the mere existence of a retainer agreement does not guarantee a right to fees when there has been an unjustified withdrawal and the commission of ethical violations.
116 Figeroux testified that members of Louima’s family were originally opposed to a federal prosecution. (F. Tr. III at 40–41).
117 The most recent statement from the escrow agent indicates that, as of June 30, 2004, the value of the total attorneys’ fees held in escrow is $3,031,750.16.
118 The Court agrees with the Estate’s position that given that the Figeroux Affidavit was submitted after the death of Mr. Thomas, at a time when the partnership would have been dissolved as a matter of law, see N.Y. Partnership Law § 62(4), Figeroux’s misconduct in this regard cannot be attributed to the Estate, or for that matter to Roper–Simpson, to deprive them of their share of the fees. See Vollgraff v. Block, 117 Misc.2d 489, 492, 458 N.Y.S.2d 437, 440 (N.Y.Sup.Ct.1982) (partnership dissolution discharges former
71

Louima v. City of New York, Not Reported in F.Supp.2d (2004) partner from obligations arising after dissolution).
119 The Court finds Figeroux’s conduct in connection with this fee proceeding to be so beyond the bounds of ethical conduct that it warrants a referral to the Disciplinary Committee of the Bar and a recommendation that he be barred from further practice in this Court. However, recognizing the serious consequences of such a referral, the Court will not, at this time, make such a recommendation without first affording Mr. Figeroux an opportunity to respond and provide a justification or explanation for his conduct.
120 Even if CN & S’ failure to inform T & F of the Tacopina meetings did constitute a breach of the Agreement, that breach was excused by T & F’s uncooperative and unreliable conduct prior to the Tacopina meetings, and by T & F’s pattern of leaks to the press. This, therefore, does not constitute grounds to deny CN & S fees.
	  
72

 
 Louima v. City of New York
United States District Court for the Eastern District of New York July 21, 2004, Decided 98 CV 5083 (SJ)

Reporter: 2004 U.S. Dist. LEXIS 13707 ABNER LOUIMA, et al., Plaintiffs, - against - CITY OF NEW YORK, et al., Defendants.
Subsequent History: Affirmed by, in part, Costs and fees proceeding at Louima v. City of New York, 2004 U.S. Dist. LEXIS 28886 (E.D.N.Y., Sept. 28, 2004)
Disposition: [*1] Magistrate recommended 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. Court recommends that T&F's motion to have CN&S forfeit their fees be denied.
Counsel: For Abner Louima, Micheline Louima, Plaintiffs: Barry C. Scheck, Johnnie L. Cochran, Jr., Peter Jon Neufeld, LEAD ATTORNEYS, Cochran Neufeld & Scheck, LLP, New York, NY.
For Abner Louima, Micheline Louima, Plaintiffs: Sanford Rubenstein, LEAD ATTORNEY, Rubenstein & Flatow, Brooklyn, NY.
For City of New York, William Pagan, Frank Birnbaum, Defendants: Georgia Pestana, LEAD ATTORNEY, Office of the Corporation Counsel, New York, NY.
For City of New York, Jeffrey Fallon, William F. Walsh, Jeremiah Quinlan, William Pagan, Frank Birnbaum, Defendants: Lawrence S. Kahn, LEAD ATTORNEY, Office of the Corporation Counsel, New York, NY.
For Patrolmen's Benevolent Association of the City of New York, Louis Matarazzo, Michael Immitt, Timothy Lee, Patrick Lynch, Defendants: Scott Sonny Balber, LEAD ATTORNEY, Kelly, Murray & Balber, L.L.P., New York, NY.
For Justin Volpe, Defendant: Marvyn M. Kornberg, LEAD ATTORNEY, Kew Gardens, NY.

For Thomas Bruder, Defendant: Gregory M. Longworth, LEAD ATTORNEY, Worth, Longworth, Bamundo & London, LLP, New York, NY.
For Michael Bellomo, Defendant: John D. Patten, LEAD ATTORNEY, New York, NY.
For Jeffrey Fallon, Defendant: Peter J. Blessinger, LEAD ATTORNEY, Cerrone & Geoghan, New York, NY.
For Francisco Rosario, Defendant: Raymond Granger, LEAD ATTORNEY, Law Offices of Raymond R. Granger, Esq., New York, NY.
For Rolando Aleman, Defendant: Kevin James Keating, LEAD ATTORNEY, Law Office of Kevin Keating, Garden City, NY.
For Thomas Wiese, Defendant: John W. DeBlasio, LEAD ATTORNEY, Law Offices of John W. DeBlasio, Rockville Centre, NY.
For Thomas Wiese, Defendant: Joseph Tacopina, LEAD ATTORNEY, Law Offices of Joseph Tacopina, P.C., Joseph Tacopina, LEAD ATTORNEY, Kudman, Trachten, Kessler & Tacopina, LLP, New York, NY.
For Louis Matarazzo, Timothy Lee, Patrick Lynch, Defendants: [*3] Thomas Philip Puccio, LEAD ATTORNEY, Law Offices of Thomas P. Puccio, New York, NY.
For Michael Immitt, Defendant: Michael T. Murray, LEAD ATTORNEY, Kelly Murray & Balbar LLP, New York, NY.
For Marcella Makebish, Defendant: Gerald J. McMahon, LEAD ATTORNEY, Law Office of Gerald J. McMahon, New York, NY.

For Justin Volpe, [*2] Defendant: Thomas Michael Laquercia, LEAD ATTORNEY, Thomas M Laquercia, Smith & Laquercia, P.C., New York, NY.
For Charles Schwarz, Defendant: Stephen C. Worth, LEAD ATTORNEY, Worth Longworth Bamundo & London, Ronald P. Fischetti, LEAD ATTORNEY, New York, NY.

For Patrick O'Sullivan, Defendant: Bradley D. Simon, LEAD ATTORNEY, New York, NY.
For Peter Blaich, Joseph O'Brien, Jeremiah Daly, Defendants: Frederick R. Kessler, LEAD ATTORNEY, Wollmuth Maher & Deutsch LLP, New York, NY.
For Peter Blaich, Defendant: Steven Lloyd Brounstein, LEAD ATTORNEY, Papa, DePaola & Brounstein, Bayside, NY.

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For Peter Blaich, Jeremiah Daly, Joseph O'Brien, Defendants: Frederick R. Kessler, LEAD ATTORNEY, Wollmuth Maher & Deutsch LLP, New York, NY.
For Joseph O'Brien, Jeremiah Daly, Peter Blaich, Cross Claimant: Frederick R. Kessler, LEAD ATTORNEY, Wollmuth Maher & Deutsch LLP, New York, NY.
For Peter Blaich, Cross Claimant: Steven Lloyd Brounstein, LEAD ATTORNEY, Papa, DePaola & Brounstein, Bayside, NY.

For Francisco Rosario, Cross Defendant: Raymond Granger, LEAD ATTORNEY, Phillips Lytle Hitchcock Blaine & Huber, Richard Ware Levitt, LEAD ATTORNEY, Richard Ware Levitt, Attorney At Law, New York, NY.
For Jeffrey Fallon, Cross Defendant: Peter J. Blessinger, LEAD ATTORNEY, Cerrone & Geoghan, New York, NY.
For Michael Bellomo, Cross Defendant: John D. Patten, LEAD ATTORNEY, New York, NY.

For Thomas Bruder, Cross Claimant: John W. DeBlasio, For Thomas Bruder, Cross Defendant: John W. DeBlasio,

LEAD ATTORNEY, Law Offices of John W. DeBlasio, LEAD ATTORNEY, Worth, Longworth, Bamundo &

Rockville Centre, [*4] NY.

London, LLP, New York, NY.

For Thomas Wiese, Cross Claimant: Joseph Tacopina, LEAD For Charles Schwarz, Cross Defendant: Stephen C. Worth,

ATTORNEY, Kudman, Trachten, Kessler & Tacopina, LLP, LEAD ATTORNEY, Worth Longworth Bamundo & London,

New York, NY.

Ronald P. Fischetti, LEAD ATTORNEY, New York, NY.

For Patrick O'Sullivan, Cross Defendant: Bradley D. Simon, For Justin Volpe, Cross Defendant: Marvyn M. Kornberg,

LEAD ATTORNEY, New York, NY.

LEAD ATTORNEY, Kew Gardens, NY.

For Marcella Makebish, Cross Defendant: Gerald J. For Justin Volpe, Cross Defendant: Thomas Michael

McMahon, LEAD ATTORNEY, Law Office of Gerald J. Laquercia, LEAD ATTORNEY, Thomas M Laquercia, Smith

McMahon, New York, NY.

& Laquercia, P.C., New York, NY.

For Michael Immitt, Cross Defendant: Lawrence J. Zweifach, For Peter Blaich, Cross Defendant: Steven Lloyd Brounstein,

LEAD ATTORNEY, Heller Ehrman White & McAuliffe, LEAD ATTORNEY, [*6] Papa, DePaola & Brounstein,

LLP, New York, NY.

Bayside, NY.

For Frank Birnbaum, William Pagan, Jeremiah Quinlan, William F. Walsh, Jeffrey Fallon, City of New York, Cross Defendant: Lawrence S. Kahn, LEAD ATTORNEY, Office of the Corporation Counsel, New York, NY.

Judges: CHERYL L. POLLAK, United States Magistrate Judge.
Opinion by: CHERYL L. POLLAK

For Louis Matarazzo, Patrolmen's Benevolent Association of the City of New York, Patrick Lynch, Timothy Lee, Cross Defendant: Scott Sonny Balber, LEAD ATTORNEY, Kelly, Murray & Balber, L.L.P., New York, NY.
For Louis Matarazzo, Patrick Lynch, Timothy Lee, Cross Defendant: Thomas Philip Puccio, LEAD ATTORNEY, Law Offices of Thomas P. Puccio, New York, NY.
For Thomas Wiese, Cross Defendant: Joseph Tacopina, LEAD ATTORNEY, Kudman, Trachten, Kessler & Tacopina, LLP, New York, NY.
For Rolando [*5] Aleman, Cross Defendant: Edward P. Jenks, LEAD ATTORNEY, Mineola, NY.
For Rolando Aleman, Cross Defendant: Kevin James Keating, LEAD ATTORNEY, Law Office of Kevin Keating, Garden City, NY.

Opinion REPORT AND RECOMMENDATION TABLE OF CONTENTS INTRODUCTION FACTUAL FINDINGS A. The Assault B. Retention of Thomas & Figeroux C. Initial Contact with the Internal Affairs Division and Mike McAlary D. Giuliani - Time Statement E. Initial Contacts with the U.S. Attorney's Office

F. Retention of Rubenstein

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G. Notices of Claim H. The March and Rally I. Retention of CN&S J. The Retainer Agreements K. Louima's First Meetings with the U.S. Attorney's Office L. The "Laptop Incident" M. The Civil Investigation N. Assistance to the Government's Case O. The Tacopina Meetings P. The Investigation of the "Giuliani Time" Statement Q. Statements to the Press
(1) Louima's Initial Instructions (2) Specific Examples of Alleged T&F Leaks (3) Louima's Retraction of "Giuliani Time" R. The Withdrawal of T&F S. The Resignation Letter T. Post-Termination Press U. The Allegations Contained in the Attorneys' Fee Papers V. The Figeroux Affidavit [*7] W. CN&S Response to the Figeroux Affidavit X. The FBI Interview and Figeroux's Deposition Y. Figeroux's Testimony at the Fee Proceeding DISCUSSION A. Jurisdiction B. Attorney's Lien C. Termination of the Attorney - Client Relationship (1) Standards for Termination or Withdrawal (2) Application D. Misconduct by T&F (1) Standing

(2) Confidences and Secrets (a) The Disclosures of Client Secrets (b) Justifications for Disclosures (c) T&F's Disclosures to the Press Were Not Warranted
(3) Forfeiture of Fees
E. Roper-Simpson's Claim to Fees
F. Fee Determination
(1) Standing at the Bar (2) T&F's Contributions (3) The Work Performed by CN&S and Rubenstein (4) Calculating the Value
G. Figeroux's Conduct
H. Alleged Ethical Violations by CN&S and Rubenstein
CONCLUSION
INTRODUCTION
On August 6, 1998, plaintiffs Abner and Micheline Louima filed this civil action against the City of New York, the Patrolman's Benevolent Association ("PBA"), various individually named officers of the New York City Police [*8] 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 coverup 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'

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prior counsel, Carl W. Thomas, Esq., 1 Brian Figeroux, Esq., the firm of Thomas & Figeroux ("T&F"), 2 and Casilda E. Roper-Simpson, Esq., to share in the legal fees arising [*9] 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). 3 [*10]
[*11] 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, "despite 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[,] … transformed [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 "dissembling," "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 4 (Id. at 2). 5 [*12]
A hearing was held before this Court beginning on October 16, 2002, 6 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

1 As a consequence of the untimely and unfortunate death of Mr. Thomas in August 2001, his interest in this matter is being pursued by his Estate. (Supplemental Memorandum of Law in Opposition to Plaintiffs' Application for Fee Forfeiture and for Recovery of Fees Due ("Estate Mem.") at 1). Prior to the hearing, an issue arose as to the extent to which conversations with Mr. Thomas could be related by other witnesses in light of the restrictions of the Dead Man's Statute. That was the subject of a separate Order of this Court dated November 14, 2002, and will not be addressed herein.
2 At the time the Louima family first contacted Messrs. Thomas and Figeroux, the firm of T&F did not exist. The two lawyers subsequently joined as a firm and remained as such until the untimely and unfortunate death of Carl Thomas in August 2001. (Estate Mem. at 1). For purposes of this Report, the two attorneys will be referred to as "T&F" regardless of whether they had formally joined as a firm at the time. Similarly, Messrs. Cochran, Scheck and Neufeld were not joined as a single firm when they were initially retained by Louima. (See Retainer Agreement, dated November 3, 1997, Ex. 2). According to Peter Neufeld, CN&S was formed after the commencement of the Louima litigation so that the lawyers in the firm could focus primarily on civil rights cases, "where the cases themselves could perhaps be a basis for systematic reform." (Transcript of Testimony of Peter Neufeld, October 24, 2002 ("N.Tr.I"), at 12). For ease of reference, the three attorneys are referred to herein as "CN&S."
3 CN&S have filed a separate motion for sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1927 based on an affidavit filed by Figeroux in connection with the fee proceedings. That motion has not been fully briefed and will not be addressed herein.
4 See discussion infra at 59.
5 In their original memorandum of law filed prior to the fee hearing, T&F asserted that not only were they entitled to one-third of the total attorneys' fees as set forth in the fee sharing agreement with CN&S, but they were seeking an award "substantially in excess of 50 percent." (T&F Mem. of Law dated April 18, 2001 at 23-24). However, during the hearing, counsel for T&F indicated that they would not seek more than the one-third provided for in the agreement that was entered into between counsel. (See Transcript of testimony of Sanford Rubenstein on November 18, 2002 ("R. Tr.") at 83). Subsequently, in T&F's post-hearing submissions, T&F reversed position again, arguing that they were entitled to more than 50% of the total attorneys' fees. (T&F Post-Tr. Br. at 74-76).
6 Since this dispute arises in the context of T&F's right to enforce a charging lien under N.Y. Jud. Law § 475, it is considered an equitable action to which no right to a jury trial attaches. See In re Rosenman & Colin, 850 F.2d 57,60 (2d Cir. 1988) (holding "in the context of both attorneys' liens and other liens, such actions have repeatedly been regarded as equitable in nature so that no jury right attaches" and citing Damsky v. Zavatt, 289 F.2d 46, 53 (2d Cir. 1961)); see also In re King, 168 N.Y. 53, 58-59, 60 N.E. 1054, 1056 (1901)(holding that an attorney's lien is an equitable remedy); Flores v. Barricella, 123 A.D.2d 600, 506 N.Y.S.2d 885, 886 (2d Dep't 1986) (striking jury demand in suit for enforcement of attorneys' lien).

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makes the following findings of fact and [*13] conclusions of law.
FACTUAL FINDINGS
A. The Assault
During the early morning hours of August 9, 1997, Abner Louima was assaulted by one or more police officers after he left [*14] the Club Rendez-Vous on Flatbush Avenue, in Brooklyn. (Compl. 7 P 34). He was handcuffed, placed in the rear of a radio patrol car, and transported to the 70th Precinct. (Id. PP 36-37). Louima alleges that twice on the way to the precinct, the police officers stopped the car and beat him. (Id. P 4). Once in the precinct station house, Louima was taken into the bathroom where he was brutally assaulted by NYPD Officer Justin Volpe, 8 who shoved a stick into Louima's rectum "with sufficient force to tear through his internal organs." (Id. P 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. PP 63, 67).
[*15] 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). 9 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). 10 Monceour asked Figeroux [*16] and Carl Thomas, Esq. to represent Louima in the criminal case that was pending against Louima at the time. (L. Tr. at 11). 11
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 [*17] 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, "they 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). 12 Louima testified that he did not realize at the time that Roper-Simpson [*18] had a separate office. (Id. at 77-78).

7 Citations to "Compl. P "refer to paragraphs in the Louimas' Third Amended Complaint.
8 On May 25, 1999, Justin Volpe entered a plea of guilty to the assault on Louima in the bathroom of the 70th Precinct and to beating Louima in the police car on the way to the station. (Compl. PP 52-53).
9 Citations to "L. Tr.at" refer to pages in that portion of the hearing transcript of November 14, 2002 when Louima testified.
10 Citations to "M. Tr.at" refer to pages in the hearing transcript of November 18, 2002 when Jovens Monceour testified. Citations to "F. Tr. III at" refer to pages in the hearing transcript of October 22, 2002 when Brian Figeroux testified. Citations to "F. Tr. I at" and "F. Tr. II.at" refer to pages in the hearing transcripts of October 17 and 18, 2002, respectively, when Figeroux also testified.
11 Louima could not recall exactly how his brother had gotten the names of Thomas and Figeroux. (L. Tr. at 54).
12 Ms. Roper-Simpson's testimony in this regard is somewhat confusing. At first, she testified that, while she did not have a written agreement with Louima, she could not say with certainty whether she had an oral agreement with him. (See Transcript of testimony of Casilda Roper-Simpson on November 22, 2002 at 178-84). She testified that she could not "positively respond" to the question of whether "Abner Louima [] or Micheline Louima ever orally retained [her]." (Id. at 178). However, she then claimed during cross-examination, that she suddenly recalled that "when we left the [August 1997] press conference[,] … Mr. Louima expressed his appreciation for us and our involvement in the case as his attorneys and being that I as an attorney was also there,

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According to both Figeroux and Roper-Simpson, T&F [*19] 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). 13 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).

criminal charges were dropped, and the handcuffs were removed. (L. Tr. at 62-63). Although Figeroux and RoperSimpson testified that they were responsible for having the charges dropped (F. Tr. III at 52; R.S. Tr. I at 32), it was Louima's testimony that T&F played no role in the decision to drop the charges despite the fact that they had been hired for the purpose of representing Louima in the criminal case. (L. Tr. at 62-63). 16

C. Initial Contact with the Internal Affairs Division and Mike McAlary
On Sunday, August 10, 1997, prior to the retention of T&F, a nurse at Coney Island Hospital who was caring for Louima, contacted the Internal Affairs Division ("IAD") of the NYPD. (R.S. Tr. I at 163; S. Tr. I at 78, 177-78; CN&S Post-Tr. Br. at 7). On August 11, 1997, attorneys [*20] 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 14 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 PostHearing 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). 15
[*21] 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

D. Giuliani - Time Statement
On August 13, 1997, while Louima was still in Coney Island Hospital, a press conference was held which was attended [*22] 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; 17 F. Tr. I at 174, 179). During that press conference, which was held outside of Coney Island Hospital, Figeroux told the press that one of the officers who attacked Louima had, during the attack, said in substance, "'It's not Dinkins' time. It's Giuliani time'" (the "Giuliani time statement"). (R.S. Tr. I at 18-19; F. Tr. I at 165-72; S. Tr. I at 71).
The following day, August 14, 1997, Louima was wheeled out on his hospital bed for a press conference and repeated the Giuliani time statement. (S. Tr. at 71-72; R.S. Tr. I at 53; L. Tr. at 152-53). Louima testified that he did not want to speak to the press at that time, but he acquiesced [*23] to the pressures of Thomas and Figeroux. (L. Tr. at 151-52). RoperSimpson 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.

I can also make a legitimate argument that [] was an oral agreement [with Mr. Louima]." (Id. at 184). See discussion infra at 139-44.
13 Citations to "R.S. Tr. I" refer to Roper-Simpson's testimony on November 21, 2002; "R.S.Tr. II" refers to her testimony on November 22, 2002; "R.S. Tr. III" refers to her testimony on December 2, 2002; and "R.S. Tr. IV" refers to her testimony on December 3, 2002.
14 Unless otherwise indicated, "Ex." refers to exhibits submitted by CN&S during the fee hearing.
15 According to Louima, McAlary's decision to visit Louima in the hospital had nothing to do with T&F. (L. Tr. at 90). Indeed, in a deposition of Figeroux taken on June 20, 2002, by Ronald Fischetti, Esq., who represented Officer Charles Schwarz in the criminal prosecution, Figeroux told Fischetti that McAlary had called him. (Ex. 41 at 14; F. Tr. III at 38).
16 Figeroux testified during the deposition by Fischetti that he could not recall whether he was present when Giuliani visited Louima in the hospital. (Ex. 41 at 17).
17 Citations to "S. Tr. II at" refer to pages in the hearing transcript of October 17, 2002 in which Barry Scheck testified. Citations to "S. Tr. I at " refer to those pages in the hearing transcript of October 16, 2002, where Scheck also testified.

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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, 9899; R.S. Tr. I at 12-13). [*24] Many of the inconsistencies in his testimony that would later plague the prosecution's case during the criminal trials stem from statements made during these initial few public statements. (L. Tr. at 98). Louima attributed the failure of T&F to prevent him from speaking to the press as stemming from "inexperience." (Id.)
E. Initial Contacts with the U.S. Attorney's Office
During this same time period, T&F contacted the U.S. Attorney's Office for the Eastern District of New York (the "Office"), because, as T&F told Louima, they thought Louima had a "very good case." (Id. at 63-64). Thomas, who was a former Assistant District Attorney, told Louima that the State does "[not] do a good job when it comes to police brutalities" so it would be better to have the federal government get involved. (Id. at 64).
Kenneth Thompson, formerly an Assistant United States Attorney ("AUSA"), who was employed in private practice at the time of the hearing, testified that he had served as an AUSA for five years in the Office, and was one of the first assistants assigned to the Louima matter, along with AUSA Leslie Cornfeld, Deputy Chief of the Civil Rights Section of the Office. [*25] (T. Tr. 18 at 210, 213-14). They were later joined on the government's team

by AUSA Cathy Palmer, 19 who served as the lead prosecutor until she left the Office, and by then AUSA Loretta Lynch, 20 then AUSA Alan Vinegrad, 21 and AUSA Margaret Giordano. (Id. at 214-15; V. Tr. at 236).
[*26] 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., 22 Mr. Thompson received a phone call in his office from Carl Thomas, who told Thompson that he had a client who had been "raped" 23 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 [*27] was a year ahead of Thomas in law school, knew that Thomas was a Root Tilden scholar, had one or two classes with Thomas, and had attended a number of events at the law school arranged by Thomas. (Id. at 216-17).
During the first phone call, Thomas told Thompson that he wanted Thompson to come to his office because he wanted the United States Attorney's Office to get involved and investigate the Louima matter. (Id. at 218). At that point,

18 Citations to "T. Tr. at" refer to pages in the transcript of testimony by Kenneth Thompson on November 22, 2002.
19 Ms. Palmer joined the Office in 1985 and worked as a prosecutor there for approximately eleven years in total, spread out over two periods of time. (Testimony of Cathy Palmer, Esq., dated October 25, 2002 ("P. Tr.") at 3-4). At the time of the hearing, Ms. Palmer was a litigation partner at Latham & Watkins. (Id. at 3).
20 Ms. Lynch, who did not testify at the hearing, was subsequently appointed as the United States Attorney for the Eastern District of New York.
21 Mr. Vinegrad joined the Office in January 1990, where he was appointed Chief of Civil Rights Litigation in April 1994, Chief of General Crimes in November 1994, and Deputy Chief of the Criminal Division in August 1995. (V. Tr. at 233). He left the Office to become a partner at Wachtel and Masyr, only to return to the Office as Chief of the Criminal Division in September 1998, serving in that position until August 1999 when he became Chief Assistant U.S. Attorney. In June 2001, he was appointed as Interim U.S. Attorney. (Id. at 234). At the time of his testimony, Mr. Vinegrad was serving as Senior Litigation Counsel in the Office. (Id.) Citations to "V. Tr. at" refer to pages in the hearing transcript of October 17, 2002 when Alan Vinegrad testified.
22 According to the testimony of AUSA Palmer, Thompson received the call from Carl Thomas "the night before the McAlary article broke." (P. Tr. at 7).
23 Thompson testified that he did not believe Thomas used the word "sodomized," but rather that he said "raped." (T. Tr. at 218).

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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). [*28] 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, [*29] 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 Office didn't commit to doing anything with respect to the case
…. I believe [we] were committed at that time to adhere to the policy of the [Department of Justice,] to let a state prosecution … play itself out." (Id. at 223-24).

(Id. at 226). [*30] Mr. Thompson testified that AUSA Comfeld 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 [*31] had already "established 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 "the 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 …. With 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, [*32] to anyone else in the Office that convinced the Office to prosecute the case. (Id. at 13).

According to Mr. Thompson, eventually, after conversations between Mr. Carter and Charles Hynes, the Brooklyn District Attorney, 24 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.

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."

24 Mr. Thompson referred to Mr. Hynes by his nickname, "Joe."

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(L. Tr. at 12). 25 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. [*33] 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). 26 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). 27 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 [*34] the Louima assault and to organize a march in support of Louima. (Id. at 170-71). 28
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 [*35] 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). RoperSimpson's notes 29 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). 30 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 "big 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 criminal." (Ex. 84 at 7).
[*36] 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). RoperSimpson's notes confirm

25 The press later reported that there was a "rift" between two factions of the Louima family over the retention of T&F. (Exs. 27, 29).
26 Citations to "Compas Tr. at" refer to pages in the transcript of the hearing on November 14, 2002 in which Dr. Jean Claude Compas testified.
27 The doctor testified that he has also known Roper-Simpson "fairly well" for "maybe ten years." (Compas Tr. at 166). Roper-Simpson, however, denied ever meeting Dr. Compas prior to the Louima matter, although she conceded that the doctor knew her sister and that the two are often confused with each other. (R.S. Tr. I at 131).
28 Rubenstein testified that from time to time, Dr. Compas would refer cases to Rubenstein, but there was no money exchanged in connection with these referrals. (R. Tr. at 31).
29 Roper-Simpson kept a diary of her initial involvement with the Louima matter beginning on August 12, 1997 and ending on September 4, 1997. (Exs. 84, 84-O).
30 See also Exhibit 29, quoting Thomas as telling Rubenstein, "'I think you're an obsequious piece of s …. You're a bloodsucker! You only pimp off our community.'"

2004 U.S. Dist. LEXIS 13707, *36

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that Louima told the T&F attorneys to work together with the new attorney. (Ex. 84 at 8). 31
[*37] 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). 32
[*38] 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 [*39] 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). 33 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 [*40] 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

31 Roper-Simpson's law partner, Emmanuel Roy, testified that he had been told by Dr. Jean Claude Compas that Rubenstein had asked Dr. Compas "to get him into the case." (Testimony of Emmanuel Roy, November 21, 2002 ("Roy Tr.") at 114, 121). However, this testimony was objected to at the hearing, and indeed is inadmissable hearsay. In addition, Louima denied that Dr. Compas played any role in the decision to hire Rubenstein, as did Rubenstein, who denied that he sought out Dr. Compas regarding the case. (L. Tr. at 13; R. Tr. at 34). Perhaps the most important testimony in this regard came from Dr. Compas. Dr. Compas denied that Rubenstein ever asked him to get Rubenstein involved in the case, and Dr. Compas testified that he was not involved in the family's decision to retain Rubenstein. (Compas Tr. at 173-74). His testimony is corroborated by Ms. Roper-Simpson's own notes in her personal diary, which state "'Dr. Compas apparently called Rubenstein.'" (R.S. Tr. III at 23; Ex. 84). The testimony relating to the retention of Rubenstein and Rynecki is relevant to Ms. RoperSimpson's allegations that Mr. Rubenstein violated the Disciplinary Rules by the manner in which he became involved in this case. In this regard, the Court credits the testimony of Dr. Compas and Mr. Rubenstein and finds no ethical violation in the retention of the Rubenstein Firm. See discussion infra at 169-74.
32 Rubenstein conceded that he was one of the lawyers who favored the addition of the punitive damages amount in the Amended Notice of Claim. (R. Tr. at 70).
33 Citations to "C. Tr. I at" refer to pages in the hearing transcript of November 14, 2002 when Johnnie Cochran testified. Citations to "C. Tr. II at" refer to pages in the hearing transcript of November 22, 2002.

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at the Club Rendez-Vous on the night of the incident, which father, his brother Jonas, and Pastor Nicolas. (C. Tr. I at

Cochran did. (Id. at 181). 34

183). [*43]

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 [*41] 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. 35 (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). 36 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 [*42] of people there, including either Thomas or Figeroux or both. 37 (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

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). 38 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 [*44] 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.)

34 Although Cochran's testimony as to what Ms. Washington said to him is clearly hearsay, no objection was raised to its admissibility at the hearing. (See C. Tr. I at 180).
35 Cochran did not recall the date of this visit, but the autographed page from the copy of his book that he gave to Roper-Simpson during that visit is dated August 23, 1997. (Ex. KC-11). Roper-Simpson also could not recall the date, but remembered it was a Saturday, which August 23, 1997 was. (R.S. Tr. I at 65-66).
36 However, Roper-Simpson did not recall Scheck accompanying Cochran on his first visit to the hospital. (R.S. Tr. I at 67). Indeed, it is unclear whether Scheck was present during Cochran's first, or his second visit to the hospital. Cochran testified that, although he could not remember for certain, he thought that Scheck was not present during his first visit. (C. Tr. I at 183). However, Scheck recounted a conversation with Louima, involving Louima's concern that the retention of additional attorneys would increase the cost of the total attorneys' fees above one third of any eventual recovery (S. Tr. I at 28-29), which Cochran testified occurred during his first visit to the hospital. (C. Tr. I at 188-89). Louima also testified to this conversation, but he recalled it taking place during the second meeting at the hospital. (L. Tr. I at 21-22).
37 According to Figeroux and Roper-Simpson, they were both present for the August 23, 1997 meeting but Thomas was not. (F. Tr. III at 17; R.S. Tr. I at 66-67).
38 Roper-Simpson denies that there was any discussion of Cochran's retention by Louima during that first meeting. (R.S. Tr. I at 70).

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After Louima decided to hire Cochran, Cochran came to the hospital a second time. (Id. at 19-20). 39 Cochran told Louima that he would also be working with Neufeld and [*45] Scheck, and Louima approved. (Id. at 20; C. Tr. I at 193). 40 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. 41 (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). [*46]
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 19596; R.S. Tr. I at 76). 42 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). 43 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. [*47] " (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). [*48]
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 [*49] 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

39 Louima also testified that Scheck and Neufeld were present for this meeting. (L. Tr. at 20). However, this recollection appears to be mistaken since, as set forth in note 36, supra, it is unclear whether Scheck was present, and Cochran testified that Neufeld was out of town. (C. Tr. I at 192). Indeed, Neufeld testified that he was out of the country until August 26, 1997, and that he first visited Louima on that date after learning that he, Cochran and Scheck had been retained to represent Louima. (Testimony of Peter Neufeld on October 24, 2002 "N. Tr. I" at 13-14; Citations to "N. Tr. II at" refer to pages in the hearing transcript of October 25, 2002 when Neufeld testified.)
40 Cochran testified that he could not recall if either Thomas or Figeroux were present at the second meeting. (C. Tr. II at 92). However, Louima testified that he told Thomas and Figeroux that he had retained Cochran after the fact. (L. Tr. at 109). Indeed, Roper-Simpson testified that she was not told that Louima intended to hire CN&S until Louima gathered all the attorneys together at the hospital. (R.S. Tr. I at 76-78).
41 Cochran testified that he was not sure if the retainer was typed on August 25, 1997, or signed on that date, or both. (C. Tr. I at 190-91, 194).
42 Roper-Simpson testified that this meeting occurred on the same day as the "lap-top incident," see discussion infra at 31, which she testified took place on August 25, 1997. (R.S. Tr. I 76-80; R.S. Tr. II at 197). However, Roper-Simpson also testified that Neufeld attended the meeting at the hospital (R.S. Tr. I at 80), and Neufeld was out of the country until August 26, 1997. (N. Tr. I at 13).
43 Roper-Simpson testified that Cochran was not present at this first meeting of the lawyers; she testified that only Thomas, Figeroux, Neufeld, Rubenstein and Scheck were there with her and Louima. (R.S. Tr. I at 76).

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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, 44 divided the fees among counsel and contained a paragraph in which it was agreed that each of the signatories:

follows: (a) the Rubenstein firm would "receive eleven (11) percent of any portion of the eleven (11) percent of the gross recovery to which Thomas & Figeroux are not entitled to;" and (b) CN&S would "receive 89% of the 11% of the gross recovery to which Thomas & Figeroux are not entitled to." (Ex. 5).

assumes joint responsibility (as that term is applied in Disciplinary Rule 2-107 [A] [2]), for the representation of ABNER LOUIMA and MICHELINE LOUIMA in this matter, and that the division of fees among counsel … recognizes and assumes that the division of fees will not necessarily be proportional to the amount of work performed by each such signatory. Each of the signatories to this agreement, on behalf of themselves and the firms and lawyers they work with, have considered the matter of the division of fees in light of D.R. 2107(A) of the New York Lawyer's Code of Professional Responsibility and has concluded after due deliberation, [*50] 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).
[*51] 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

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 [*52] 14). Since Neufeld had been on vacation out of the country on the date of Louima's assault, he did not become involved in the case until that morning of August 26, 1997, when he went to the hospital where he met Louima and Figeroux. (Id. at 13-14).
Neufeld testified that when he arrived at the hospital, Louima was lying in a hospital bed, hooked up to an I.V. and various other devices; "he 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, [*53] 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 "too late for that. We're going forward." (Id.)
Shortly thereafter, Ms. Palmer arrived with Mr. Thompson and an FBI agent. (Id. at 17). Neufeld tried unsuccessfully to have Ms. Palmer postpone the interview. (Id.) As the interview progressed, it became very clear that Louima

44 In dividing up the fees, the Agreement referenced the firm of T&F but made no mention of Roper-Simpson, and her signature does not appear on the document.

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was in pain; his answers were disjointed and at one point, one of the gauges on one of the machines signaled that he was in a danger zone, requiring the nurse to come in. (Id.) Neufeld then urged that the interview stop for fear it was exacerbating Louima's condition. (Id.)
Ms. Palmer also described her first meeting with Louima while he was still in Brooklyn Hospital. (P. Tr. at 15). She described him as "physically uncomfortable" due to his "significant injuries" and "a little reluctant" because she and Ken Thompson were from the government. (Id.) Over the next three months, after Louima was released [*54] 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; "but other than that, [she did not] have a recollection [*55] 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 RendezVous: "He was not being helpful in building that bridge" with the family. (Id. at 79-80).
L. The "Laptop Incident"
Some time after the August 25th retainer agreement was signed, and after Neufeld had gone to the hospital with Cathy Palmer to question Louima, arrangements were made to have all of the lawyers meet to discuss how they would proceed as a team to pursue the case. (S. Tr. I at 3233). 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). 45 Neither Scheck or Cochran could recall if Roper-Simpson was there. (Id.; C. Tr. I at 198-99). 46 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 [*56] 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). 47 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).
[*57] Figeroux conceded using these statements during this incident. (F. Tr. II at 68-69). Figeroux admitted that, taken "out of context," his comments "appeared to be inappropriate." (Id. at 70). However, in T&F's papers, Figeroux attempts to justify his behavior at this meeting as "readily understandable when placed in the context of Cochran's duplicity and evasion in dealing with [T&F] at this time of his entry into the case that [T&F] had worked so hard and so successfully to build." (T&F Mem. at 17).
After this initial incident, Thomas and Figeroux asked to speak privately with Cochran, telling Cochran that Scheck and Neufeld knew nothing about civil rights. (C. Tr. I at 204). When Cochran tried to dissuade them of this notion, Thomas and Figeroux accused Cochran of being "an Uncle Tom," and they argued that because they were Black like Cochran, he "should … favor them, and should kick Scheck and Neufeld off the team." (Id. at 204-05; S. Tr. I at 40-42). Thomas said to Cochran, "'Why are you practicing with these two Jew lawyers [referring to Neufeld and Scheck] … you should be working with us' -- Mr. Figeroux and Mr. Thomas -- 'because we're lawyers for the community. [*58] '" (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.

45 Neufeld testified that he was uncertain as to whether he actually attended this meeting. (N. Tr. II at 265-66). Roper-Simpson testified that this initial joint meeting of attorneys took place immediately after Louima gathered the attorneys in his hospital room and instructed them to work as a team. (R.S. Tr. I at 81-85). She also testified that Cochran was not present. (Id. at 81).
46 Cochran also testified that Mr. Rynecki may have been there. (C. Tr. I at 199).
47 Cochran confirmed this testimony, stating that Figeroux got up, used an obscenity and slammed down the top of the computer, saying '"are you trying to f'ing intimidate me by using this technology?'" (C. Tr. I at 200).

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Then they referred to them other than as Jewish lawyers. They used a terribly pejorative term 48 …. 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).
[*59] 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" [*60] and "get anything they wanted to in the press." (Id.) Cochran warned them not to do that, reminding them of Louima's instructions to clear press matters with Louima first. (Id. at 206-07). According to Cochran, they responded "negatively." (Id. at 207).
Cochran also told them it was "malpractice for them to allow Abner to go before the cameras when he is sedated,

to have him be interviewed like that before the state grand jury." (Id.) He told them they did not know what they were doing and that they should "try to learn before they got this case all totally messed up." (Id.) According to Cochran, Thomas and Figeroux did not dispute any of this. (Id. at 208).
After meeting with Thomas and Figeroux separately for fifteen to twenty minutes, Cochran returned with Thomas and Figeroux to Rubenstein's office where the other lawyers were waiting and they all discussed the fact that this was about Louima and not individual personalities. (Id.) It was also agreed at this time that Thomas would act as spokesperson to the community, and that Scheck and Figeroux would act as liaison with the U.S. Attorney's Office. (Id. at 208-09; S. Tr. I at 46; Ex. 60).
Scheck [*61] testified that an attempt was made to reach a truce and eventually everyone agreed that it was important to work as a team. (S. Tr. I at 42). They also addressed the "importance of not leaking, working in a united way, because in high profile cases dissension among a legal team … can create serious problems." (Id.)
They also discussed at that meeting the concept of targeting the Patrolman's Benevolent Association ("PBA") because its practices had contributed to covering up police brutality in the past. (Id.) They discussed possible Monell claims and the idea of attacking the procedures by which the PBA and the police department dealt with allegations of police brutality. (Id.) Figeroux and Thomas stated that they had not thought about these ideas, although Thomas mentioned a legislative initiative to require all police officers to live within New York City. (Id. at 43-44).
There was, at that meeting, a general agreement that attorneys' fees would be split one-third for Mr. Rubenstein, one-third for T&F, and one-third for CN&S. (Id. at 45). The attorneys also discussed the necessity of providing for Louima's security when he left the hospital. (Id.) Subsequently, [*62] a meeting was held with Ms. Palmer, Figeroux, Scheck, and Rubenstein to discuss compensation for Louima, as well as security arrangements. (Id. at 46-47).
Cochran described the relationship between CN&S and T&F as "oil and water. It was a difficult relationship from

48 Figeroux denied that he was "anti Jewish." (F. Tr. I at 136). He stated: "Me, I am not anti anything. What I am, you don't have to be pro something, you don't have to be anti anything. To be pro for people of color, you don't have to be anti white or anti Jewish whatever. In fact, what I think is that we need to learn from people who have succeeded. Like the Jews, they have succeeded. They have succeeded for specific reasons. If they succeed, then we can emulate that." (Id.) According to Mrs. Thomas, her husband was active in the Jewish community, serving as a member of the Board of Trustees of Kingsbrook Jewish Medical Center. (Transcript of Testimony of Elizabeth Thomas, dated December 5, 2002 ("Thomas Tr."), at 38-39). She testified that she never heard him utter anti-Semitic remarks. (Id. at 38). Mr. Thompson also testified that he never heard Thomas make anti-Semitic comments about Scheck or Neufeld nor could he recall ever hearing Thomas make such remarks about anyone. (T. Tr. at 226-27).

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the very beginning." (C. Tr. I at 213). Cochran described Thomas as "not only bellicose, but always threatening." (Id. at 214). 49 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).
[*63] M. The Civil Investigation
In late August 1997, the attorneys began to arrange for Louima's care and to make preparations to bring a civil action on Louima's behalf.
Neufeld described his primary role in the early part of the case as encompassing three things: (1) improving Louima's physical health; (2) improving Louima's mental condition; and (3) retaining an investigative agency to work with CN&S in investigating Louima's civil rights claims. (N. Tr. I at 1924). 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, [*64] 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 [*65] were running a club where there was "inappropriate sexual activity." (Id.) These summons were served at a time when claims were being made that Louima's injuries were the result of consensual homosexual activity. (Id.) In searching for an investigative agency, Neufeld interviewed three firms, and he consulted with Thomas and Rubenstein about all three. (Id. at 28). Both Thomas and Neufeld preferred the Walker Investigative Agency, so it was the consensus of all the attorneys that the Walker firm be retained. (Id. at 28).
The Walker Agency interviewed people who were known to Louima at the Club Rendez-Vous on the night of the incident, including members of the band, the Phantoms, that was playing that night. (Id. at 30). The investigators took photographs, inside and outside the Club, as well as photographs of the route taken by the squad car on the way to the precinct. (Id. at 32). One of the things Neufeld was trying to determine was whether there were other witnesses who might have been present when the squad car stopped between the Club and the precinct, during which time Louima claimed he had been beaten by the officers. (Id. at 32-33).
Neufeld also [*66] 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 Comfeld. (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

49 Roper-Simpson confirmed this view of Thomas, testifying that "he yelled most of the time, I would say a good 60 to 70 percent of the time. That's just the way he spoke. He was a loud person. (R.S. Tr. III at 39). Thompson, however, testified that he did not consider Thomas to be "bellicose," a "yeller and a shouter," but rather described him as "outspoken …. He was the type of person who was very intelligent and he was a proud person and where others would probably back down, I don't think Carl would." (Id. at 227).

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Department to proceed with an investigation into Louima's case but to discuss Neufeld's ideas about appropriate injunctive relief. (Id. at [*67] 36-37). Eventually, however, the Justice Department did not file a pattern and practice action. (Id. at 37).
As part of the civil case before this Court, CN&S litigated and obtained authorization to take photographs inside the 70th Precinct to show that the distance between the bathroom, the sergeant's desk, the interview room and the holding cell was such that it was likely that "every single police officer" on the first floor of the precinct house knew what had happened to Louima and yet chose not to come forward. (Id. at 33). The U.S. Attorney's Office did not object to what the lawyers were doing; in fact, Neufeld testified that "[CN&S] kept them apprised of the things that we were doing of that nature." (Id. at 34).
With the authorization of Louima, Neufeld met with the New York State Legislative Black Caucus in New York near the end of September 1997 to discuss the systemic causes of the Louima tragedy and what could be done to remedy them. (Id. at 37-38). Neufeld remembered that either Thomas or Figeroux went with Neufeld to that meeting but had to leave shortly after the meeting commenced. (Id. at 168). Cochran testified that he played a role in organizing [*68] "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 [*69] 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 [*70] 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 [*71] 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

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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 [*72] 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, [*73] 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 [*74] 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). 50 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).
[*75] 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 [*76] 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

50 Neufeld confirmed that Figeroux was present for at least one interview with Gregory Normil, a cousin of Louima's, concerning this investigation. (N. Tr. I at 50).

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meeting because "we didn't think much of it at the time." (Id. at 41-42). 51
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." ( [*77] 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 [*78] Weise's attorneys provided was not truthful, Scheck believed that the false information could then be used against Weise in a civil proceeding. (Id. at 66-67). According to Scheck, CN&S made it clear, as a condition of the meeting, that they were not going to say anything regarding what Louima had told them or what they knew about the case; they were just listening. (Id. at 67). They also made it clear that the meeting would not be a secret meeting; it was to be held in a public restaurant on both occasions. (Id.)
T&F contend that they were not told of the meetings with Tacopina in "a deliberate act of exclusion," "fuel[ing] the impression that [CN&S] sought to exclude [T&F] from important decisions affecting the case." (T&F Mem. at 26; see also R.S. Tr. I at 96-98, 194-95; F. Tr. I at 138). Indeed,

Scheck admitted on cross-examination that there was no effort to include Thomas or Figeroux in either the first or second Tacopina meeting. (S. Tr. I at 149-50). Rubenstein also was unaware of the Tacopina meetings until some time after the meetings had occurred. (R. Tr. at 74). On the other hand, Scheck testified that because Tacopina had appeared on Cochran's television [*79] 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, 52 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 [*80] 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). 53
[*81] 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).

51 Scheck, however, testified that he "had knowledge that the first meeting was going to take place." (S. Tr. I at 67).
52 Although Thompson testified that the government learned about the Tacopina meetings sometime prior to the termination of T&F's representation (T. Tr. at 267), Ms. Palmer was adamant that she did not learn of the Tacopina meetings until February or early March of 1998, after the indictment was returned, which occurred on February 26, 1998. (P. Tr. at 45, 47, 49). Scheck, however, testified that Palmer confronted him with her knowledge of the Tacopina meetings "some time in January." (S. Tr. I at 69).
53 Scheck explained that CN&S did not seek the government's approval prior to the meetings because if Tacopina related things that Weise had said to the authorities during his "GO-15" internal NYPD investigative hearing that might be immunized, CN&S did not want the prosecutors to learn information that would possibly taint the prosecution. (S. Tr. I at 67-68).

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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 [*82] "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 54 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).
[*83] 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). 55 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).

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 concem[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 "she 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 [*85] concern as to whether Mr. Figeroux had had any involvement in the statement initially being made," and she did not feel that T&F had been "helpful in building the kind of trust working with [the government]. (P. Tr. at 42).
T&F assert that because Figeroux was under suspicion for having originated the Giuliani time remark, Scheck "conduct[ed] his investigation in an accusatory manner … and encouraged Louima to blame" Figeroux even after the investigation confirmed that the statement originated from others. (T&F Post Hearing Br. at 31). T&F further contend that CN&S failed to take steps to prevent Louima's family members from making statements designed to shift the blame back onto Figeroux even after the truth was known and T&F had left the case. (Id. at 32 (citing S. Tr. I at 76-81)).
These accusations are belied by the credible evidence which demonstrates that Scheck conducted the investigation in a deliberate and non-biased fashion. Indeed, upon being asked by Palmer to investigate the genesis of the Giuliani time statements, Scheck first performed a Lexis-Nexis search of every article written about the Louima case in an effort to determine who first said anything [*86] 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

Later, toward the [*84] end of November or early December of 1997, during a walk through of the events of that evening,

54 See Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
55 At the time, there was a mayoral race in which Mayor Giuliani was running against, among others, Reverend Sharpton and Ruth Messinger. (S. Tr. I at 71).

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Island Hospital. (Id.) Scheck also spoke to Louima, who told Scheck that while Louima was in the hospital, either late on August 13 or early in the morning on August 14, he spoke to a man, later determined to be Jean-Claude Laurent, a relative of Magalie Laurent, one of the nurses taking care of Louima. (Id. at 74-75). Scheck learned that Laurent had spoken to Louima in Creole and told Louima that he had to make a statement that his attacker had said, "'It's not Dinkins time. It's Giuliani time,' because this would be important to bring attention to [Louima's] case." (Id. at 75). Louima then went out on August 14 at the press conference, where he was "in terrible pain, … [and] on drugs," and he made the statement. (Id.) Louima did not really know Laurent very well, but he told Scheck that Louima's brother Jonas might have more information. (Id.) 56
[*87] 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 [*88] 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). 57 Although Figeroux had never heard Louima mention this remark in any of his prior conversations, Figeroux decided [*89] 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 "assumed" that Jonas had written it. (F. Tr. I at 169-70). Figeroux also conceded that he had spoken to Louima on three or more occasions prior to the press conference, and that even though Louima had never said anything about the Giuliani time statement during those conversations, Figeroux did not question Jonas about the note because Figeroux "didn't have the opportunity at that time to speak to anyone" and because he believed it to be true. (Id. at 172-73, 176).
It is unclear whether Louima ever confirmed [*90] 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

56 During this portion of his testimony, Scheck related conversations involving Louima. There were no objections raised to the admission of this testimony.
57 This testimony by Figeroux contradicts his prior statement given during the course of an FBI interview on April 18, 2002 in which he told the FBI that "there was nothing about 'Giuliani time' on the note" but rather, "Jonas spoke to Figeroux and told Figeroux about the 'Giuliani time' statement." (Ex. 44).

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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 [*91] Figeroux was not even in the hospital room with Louima prior to Louima's press conference. (R.S. Tr. IV at 6-9). According to Roper-Simpson, she and Thomas were the only ones in the room with Louima and she has no recollection of Figeroux ever discussing the Giuliani time statement with Louima. 58 (Id.)

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 [*93] debriefing sessions began again with Louima. (Id. at 89).
Q. Statements to the Press
(1) Louima's Initial Instructions

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 "at 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 [*92] officers, and that therefore it was important to maintain consistency in Louima's statements. (Id. at 163-64). Figeroux stated that, "in 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). "It undermined obviously the credibility that Louima would have at the criminal trial.

Although Louima acknowledged the benefits of publicity in bringing his case to the attention of the public (L. Tr. at 130), 59 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. 60 (C. Tr. I at 197-98; see also R. Tr. at 45). 61 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). [*94]
Neufeld testified that during the six or seven months prior [*95] 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

58 Indeed, she told the FBI that she had never discussed this statement with Louima. (Ex. 45 at 5).
59 In addition to the interview with McAlary, and Louima's statements to the press from his hospital bed, on August 14, 1997, Thomas and Figeroux appeared on 20/20 with Ted Koppel, and, along with Roper-Simpson, they also appeared on the Gabe Pressman Sunday Morning Show. (R.S. Tr. I at 49). According to Roper-Simpson, "there was a lot of time devoted to the press," particularly by Thomas and Figeroux. (R.S. Tr. I at 50).
60 Later, it was agreed that Thomas would be the "lead" attorney as far as the public was concerned but Cochran would still be in charge of decision-making. (L. Tr. at 25). However, Louima also instructed the attorneys to clear press matters with him. (Id. at 26-27).
61 T&F argues that Louima's testimony in this regard is "muddled," pointing to Louima's testimony on cross-examination that in January 1998, he instructed the attorneys not to speak to the press without prior clearance (L. Tr. at 118), and his later testimony that he issued this instruction in response to a Village Voice article dated September 2, 1997. (Id. at 130-31; Ex. 29). This article was published approximately one week prior to that date. (S. Tr. I at 90). However, while Louima's recollection of the chronology of his instructions was vague, it appears that, rather than contradicting himself, Louima may have been referring to distinct occasions on which he instructed the attorneys regarding their contacts with the media. (L. Tr. 111-19, 130-31).

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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, 62 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 [*96] 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 [*97] 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 "deliberately" 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" [*98] as stating that Thomas called Rubenstein an "'obsequious piece of s_'" and a "'bloodsucker."' (Id.)
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 [*99] 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. [*100] " (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

62 Rubenstein testified that he obtained Louima's permission before speaking to Vanity Fair. (R.Tr.at 45; Ex. 27).

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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). 63 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. [*101] (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, "according to sources," had not told the truth and was retracting his statement about "Giuliani time." (Ex. 53). The [*102] 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 Komberg, Esq., lawyer for Justin Volpe, was quoted in the article as noting that

"'if he [Louima] would lie about that, what would he say to collect $ 450 million, which is what he is suing for?'" (Id.) 64
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 [*103] 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, 10607). 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 9192; 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 220).
Palmer testified that she believed that either Thomas or Figeroux was responsible for leaking the [*104] retraction of the Giuliani time statement and that having the story leaked prevented the government from "making 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 10304; 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

63 Marie Brenner is the author of the Vanity Fair article. 64 See also Ex. 37 (Newsday article dated January 18, 1998 by Jimmy Breslin discussing the retraction.)

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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 [*105] 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). 65 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 [*106] no one had ever uttered publicly." (Id. at 94).

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 [*108] 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).

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, "'why 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, [*107] Louima was angry and he instructed the attorneys that it was not acceptable for them to make comments to the media without Louima's

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). 66 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 [*109] 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

65 When asked if he was upset at Thomas as well, Louima replied that he didn't specifically recall any leaks involving Thomas. (L. Tr. at 3132).
66 Although all of the other witnesses testified that this January 23, 1997 meeting occurred at CN&S' offices at 99 Hudson Street, RoperSimpson testifed that she was "150 percent" sure that the meeting had been at Rubenstein's office. (R.S. Tr. III at 139).

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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 "what 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. [*110] 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 [*111] 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). 67
[*112] 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 42).
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). 68 Although Neufeld testified that he was not privy to all of [*113] 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).
[*114] 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

67 Roper-Simpson testified that what Louima said was: "'Well, last week you had offered your resignation and I'm willing to accept your resignation today if you still want to give it or I have to let you go.' And then I was in shock, I looked at Brian and then I looked at Carl and Carl seemed a little astonished and Carl said, like he went 'okay' and we left." (R.S. Tr. I at 128). Figeroux testified that Rubenstein had earlier said to him "'listen Brian, all you have to do is stay on this case, you do nothing. You collect your money at the end of the case and move on. Do nothing, collect your money. It's either that or you quit, you'll be fired.'" (F. Tr. III at 21).
68 Ms. Thomas was asked a series of questions about her husband's behavior and demeanor around the time of this meeting. She stated that although her husband was originally "very excited" and enthusiastic about the case (Thomas Tr. at 44), he "became very troubled. He went from being very enthusiastic … and putting all of his energy [into the case] which he continued right until he came off. But he became increasingly troubled in his interactions with the new team, Mr. Cochran and his team." (Id. at 47). Ms. Thomas testified that, prior to attending this meeting in January, Mr. Thomas stated that he "thought …. that he was going to be kicked off the case." (Id. at 59). Later that night, after this meeting, he came back very upset, breathing heavily. (Id. at 60).

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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 RoperSimpson 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 [*115] or privileged nature while representing Louima. (S. Tr. I at 104-05; N. Tr. I at 107-08). Scheck noted that "we 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), 69 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 129). 70
[*116] 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 waiver.
Moreover, it is essential [*117] 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.(Id.)
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 [*118] the date of the hearing, the only authorization received by T&F to speak about the case was the

69 Louima identified Exhibit 8 as the letter that was drafted that day after T&F left, instructing them not to talk about Louima's case. (L. Tr. at 30).
70 Roper-Simpson stated that the letter came by messenger ten to fifteen minutes after they had returned to Thomas and Figeroux's office. (R.S. Tr. I at 129).

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authorization given by Louima to allow Figeroux to speak to the FBI. (F. Tr. II at 4). 71
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 [*119] Thomas or Figeroux, that Thomas and Figeroux were no longer representing Louima. (T. Tr. at 25354). 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; "so it didn't surprise me that Brian and Carl got off the case." (Id. at 255).
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 "declining 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" 72 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 [*120] is quoted as stating that "the other lawyers had lost confidence in them …. the 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 [*121] 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 dismissed." (Id.)
A Daily News article of January 29, 1998, written by Lawrence Goodman, also contained statements attributed to Thomas. The article [*122] 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

71 See discussion infra at 84-86.
72 Although Rubenstein was questioned about this article and asked if he was the source of this information, Rubenstein denied being the one who made these statements to Pierre-Pierre, while at the same time acknowledging that he knew the reporter and had been asked for information about the Louima matter. (R. Tr. at 63-65).

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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 [*123] 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 129-32).

1999, Louima [*125] 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. r. 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).

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 11011; Ex. 18). Louima expressed concern that these types of statements [*124] 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,

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 mediahungry associates." (Ex. 19 at 2). According to the article, Thomas "insists that he and his colleagues resigned and claims Neufeld [*126] 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 community." (Id.)
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. [*127] " (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

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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 [*128] law to try to create a problem for us.'" (Ex. 20 at 5). 73
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 [*129] 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. 22).
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 [*130] 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 36).
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 [*131] misconduct by T&F. 74 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. P 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 onethird of the legal fees in the case. (Scheck Aff. P 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. P 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

73 As Roper-Simpson conceded, however, it was Rubenstein who prepared the initial Notice of Claim (R.S. Tr. I at 144-45; R. Tr. at 39), and that in being critical of the amount, Cochran "was sort of putting down Mr. Rubenstein's amount that he put [in] the original Notice of Claim." (R.S. Tr. I at 144-45).
74 CN&S later added to their complaint of wrongdoing the allegation that T&F further injured Louima's interests by alleging in their fee papers, particularly in the December 19, 2001 Affidavit of Mr. Figeroux, that Louima and CN&S had engaged in a scheme to suborn perjury. (Affidavit of Peter Neufeld, dated January 25, 2002 ("Neufeld Aff."), at PP 8-17; S. Tr. I at 4-6). See discussion infra, at 79-80.

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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 promise."(Scheck Aff. P 27; see also N. Tr. I at [*132] 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 7879). 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 [*133] 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 8788). 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, [*134] no matter what the cost'" (Scheck Aff. P 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 Rubenstein. (Id.)
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 [*135] 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 5). 75
With respect to the accusation that T&F allegedly disclosed client confidences and secrets, T&F contended in their initial responsive papers that "at 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 [*136] departure from the case, and denying the accusations of misconduct," and they contended that "none of these alleged statements constitutes a disclosure of protected client information." (Id. at 2). 76 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

75 At the hearing, it appears as though T&F are now arguing that they were entitled to resign because they were "never allowed to serve in their role as lead counsel" and otherwise were "marginaliz[ed]." (S. Tr. I at 9).
76 This claim was, of course, subsequently contradicted by Figeroux's own testimony at the hearing. (See discussion supra at 75; see also F. Tr. II at 24-25, 27, 40-45).

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done would have to be defensive if anything was said about [T&F] resigning." (F. Tr. II at 32).
[*137] 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. P 2). The affidavit further charged CN&S and Louima with engaging in serious, even criminal, misconduct:
After 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 [*138] 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. P 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.(Id.)
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. P 14). Specifically, the Figeroux affidavit stated:
We also learned [*139] 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 CN&S. 77
[*140] 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

77 It should be noted that not only did these new allegations not appear in the April 18, 2001 Memorandum filed by T&F's counsel, but the claims were also not made in any of the legal submissions filed by Ms. Roper-Simpson. Although Ms. Roper Simpson's affidavit, dated March 29, 2001 ("Roper-Simpson Aff."), alleges that the manner in which CN&S came into the case constituted a violation of ethical rules, she says nothing regarding the Tacopina meetings or a change in Louima's testimony. (Roper-Simpson Aff. of Mar. 29, 2001 PP 25-33).

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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.PP 8,10). [*141] 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. P 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. P 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 12526). 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 [*142] 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, [*143] 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. [*144] 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 7071). 78 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.

78 Palmer testified that, if she had known that CN&S were interviewing individuals who were potential witnesses in the criminal case without her knowledge or consent, she would have found that to be problematic. (P.Tr.at 73). However, Palmer also stated that the government had asked CN&S for assistance on several occasions in investigating certain matters related to the criminal case. (Id. at 70-71).

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(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). [*145] 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. at 250).
Mr. Vinegrad testified that he was made aware of the fact that CN&S had interviewed people present at the Club RendezVous 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 [*146] …. 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 [*147] 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 [*148] 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 believed 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, [*149] 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 146).
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. [*150] 32). Another New York

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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). 79 On May 10, 2002, the government provided that portion of Figeroux's affidavit dealing with Louima's purported change [*151] 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, [*152] 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. at 32-36).
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 [*153] any particular testimony, you know, discussions by Abner, but based on, from general point of view, that's what I believed.
Q. But you say here that "I observed a change in Abner." I am trying to find out what change you observed.
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?
A: Right.
Q: What I would like to know is what change did you observe?
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,

79 Figeroux conceded that he had read the April 30 article in the New York Sun and that he knew that his December 19th affidavit was the subject of discussion among the lawyers and the judge in the Schwarz trial. (F. Tr. I at 129).

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obviously things that were happening that, you know, I thought that the focus was not on the client, but on other [*154] 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 [*155] is clear that Figeroux, who learned of the Tacopina meetings from Thomas, did not learn of the meetings until long after they occurred. 80 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 95-96).
Figeroux was also questioned at the fee hearing regarding the statement in his affidavit that "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 [*156] was assaulting Abner." (Ex. 56 P 14). When asked if he ever saw a change in Louima's "testimony," Figeroux stated that "obviously, that wasn't the situation." (F.Tr. I at 105). For the first time, Figeroux testified that "we 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 [*157] 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 "for 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 [*158] 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

80 Thompson testified that Thomas learned about the Tacopina meetings from newspaper accounts. (T. Tr. at 285, 287). The first newspaper accounts of the Tacopina meetings were published in November of 1998. (Id. at 287).

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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 "whatever my obligations were at that time I can't say -- my attorney addressed those issues." (Id. [*159] at 120). However, he could not recall when he corrected the error. (Id. at 110). 81 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 "that 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 [*160] 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).

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 for others.
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, whatever.
…. 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.

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).

That is specifically [*162] what I was trying to address there. That whatever happened, I wanted the truth to come out.(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.

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 [*161] 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

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

81 It is unclear in what way Figeroux believed the error had been remedied. Indeed, as of the date of the hearing no correction had been filed with this Court.

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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 [*163] 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, [*164] 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.)

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: "that statement is [*165] affirmatively false." (Id. at 58). When asked if Louima's "account" of the incident had changed, Palmer responded, "from 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 60).
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 27778). He testified that he may have spoken to Thomas about the fact that people [*166] 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).

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 96102). 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

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

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statements that would support Figeroux's allegation that Louima changed his account. (Id. at 254-55). 82
[*167] 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 [*168] 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).

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 [*169] 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." (Id.)
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 74-75).
A. Jurisdiction

DISCUSSION
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

As an initial matter, federal courts "have independent authority to regulate attorney admission and withdrawal, and ancillary to that, the authority to determine [*170] attorney's fee disputes and regulate attorney's fee liens." Rivkin v. A.J. Hollander & Co., 1996 U.S. Dist. LEXIS 16202, No. 95 CV 9314, 1996 WL 633217, at *2 (S.D.N.Y. Nov. 1, 1996). 83 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

82 Neufeld also was adamant in his conviction that there was "absolutely no change in Abner's testimony." (N. Tr. I at 123, 130-134). Even Roper-Simpson failed to support Figeroux's allegations. Indeed, during the fee hearing, Roper-Simpson testified that she never saw a change in Louima's testimony of what had occurred (R.S. Tr. I at 195), and that, apart from the Tacopina meetings, she had never discussed with either Thomas or Figeroux the alleged claim that Scheck was improperly meeting with witnesses and preparing them improperly. (Id. at 191194).
83 It is also clear that the district court may refer a motion for attorney's fees to the magistrate judge. SeeFed. R. Civ. P.54(d)(2)(D). Pursuant to Fed. R. Civ. P. 72(b), the magistrate judge may enter a report and recommendation determining and fixing the amount of a charging lien. See Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 177 (2d Cir. 2001); Rajaratnam v. Moyer, 47 F.3d 922, 924 n.5 (7th Cir. 1995); Estate of Conners by Meredith v. O'Connor, 6 F.3d 656, 658-59 (9th Cir. 1993) (stating that it was error for magistrate judge to issue final order, rather than report and recommendation, on post-judgment fees motion); cf Cohen v. N.Y. City Health & Hosps. Corp., 2001 U.S. Dist. LEXIS 2795, No. 99 CV 3896, 2001 WL 262764, at * 1-2 (S.D.N.Y.March 16, 2001) (issuing final order regarding amount of charging lien without indication that the parties had consented to referral for all purposes to the magistrate judge).

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Federal Civil Rights Acts, 42 U.S.C. §§ 1983,1985,1986 and1988. 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"). 84 [*171]
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., 1996 U.S. Dist. LEXIS 16202, 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, 118 L. Ed. 2d 504, 112 S. Ct. 1827 (1992), [*172] 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 "the 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 [*173] 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 "it 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., 1999 U.S. Dist. LEXIS 7779, 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 [*174] 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 & Hosps. Corp., 2001 U.S. Dist. LEXIS 2795, 2001 WL 262764, at *1; Caribbean Trading & Fidelity Corp. v. Nigerian Nat'1 Petroleum Co., 1993 U.S. Dist. LEXIS 18242, 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)). [*175]
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 U.S. Dist. LEXIS

84 Even if this fee issue was not governed by federal law, this Court would have jurisdiction to rule on the dispute under the doctrine of supplemental jurisdiction. See Chesley v. Union Carbide Corp., 927 F.2d 60, 64 (2d Cir. 1991).

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18242, 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.'" ItarTass 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 "the Court of Appeals has clearly stated that [Section [*176] 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 & Hosps. 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). 85
[*177] 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 & Hosps. Corp., 210 A.D.2d at 292, 619 N.Y.S.2d at 757; see also Rodriguez v. New York, 66 N.Y.2d 825, 827-28, 489 N.E.2d 238, 23940,498 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 [*178] 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; "'it 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. La Grange, 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. at 452.
When the attorney's retainer agreement with the client assigns [*179] 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 [*180] 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,

85 See also Klein v. Eubank, 87 N.Y.2d 459, 462, 663 N.E.2d 599, 600, 640 N.Y.S.2d 443, 444 (1996) (stating that "under both the statute and our precedents, an attorney's participation in the proceeding at one point as counsel of record is a sufficient predicate for invoking the statute's protection").

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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, 86 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 [*181] 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 & Hosps. Corp., 2001 U.S. Dist. LEXIS 2795, 2001 WL 262764, at *2. See also Lai Ling Cheng v. Modansky Leasing Co., 73 N.Y.2d 454, 457-58, 539 N.E.2d 570, 572, 541 N.Y.S.2d 742, 744. [*182]
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, 125 A.D.2d 278, 280, 509 N.Y.S.2d 48, 50 (2d Dep't 1986)87 (noting "if 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").
[*183] 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 '"where 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. 88 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 U.S. Dist. LEXIS 7779, 1999 WL 335334, [*184] 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 "where an attorney's withdrawal from a case is justifiable, the attorney is entitled to recover for services rendered on the basis of quantum meruit"):

86 See Roper-Simpson's Memorandum of Law, dated March 29, 2001 ("R.S. Mem.") at 10; see also Post Hearing Memorandum of Law of Casilda Roper-Simpson, dated April 21, 2003 ("R.S. Post-Tr. Br.") at 9. See discussion infra at 139-44.
87 In Allen, the attorney sought to terminate his representation because he was "under a misapprehension" of the amount of work that would be required in the case. The Second Department found that there were issues of fact requiring a trial as to whether the attorney's unilateral withdrawal was prompted by his own financial concerns, which would effectively constitute abandonment of his client, or whether he withdrew, as he claimed, because of the client's misconduct. 125 A.D.2d at 279-280, 509 N.Y.S.2d at 50.
88 Although not specifically argued by CN&S here, this Court notes that the various public disclosures by T&F during the course of settlement negotiations in this case created problems for the settlement process and prompted the issuance of a gag order when T&F refused to voluntarily refrain from speaking to the press.

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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 [*185] 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 "attorney-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 [*186] 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, 89 "a lawyer may withdraw from representing a client if … the client … renders it unreasonably difficult for the lawyer to carry out employment effectively." Disciplinary Rule ("D.R.") § 2110(C)(1)(d), N.Y. Comp. Codes R. & Regs. tit. 22 § 1200.15. 90See also Casper v. Lew Lieberbaum & Co., Inc., 1999 U.S. Dist. LEXIS 7779, 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, 589 N.Y.S.2d 338, 339 (1st Dep't 1992), an order of withdrawal is appropriate. See Mars Prods. v. United States 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 [*187] from representation if a client fails to

communicate with the attorney, see Furlow v. City of New York, 1993 U.S. Dist. LEXIS 3510, 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 v. Wassel, 1992 U.S. Dist. LEXIS 2001, 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 U.S. Dist. LEXIS 7779, 1999 WL 335334, at *5; Hallmark Capital Corp. v. Red Rose Collection, 1997 U.S. Dist. LEXIS 16328, No. 96 CV 2839, 1997 WL 661146, at *3 (S.D.N.Y. Oct. 21, 1997); Cosgrove v. Federal Home Loan Bank, 1995 U.S. Dist. LEXIS 14880, No. 90 CV 6455, 1995 WL 600565, at *2 (S.D.N.Y. Oct. 12, 1995).
[*188] 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., 199 U.S. Dist. LEXIS 7779, 1999 WL 335334, at *2. See also Itar-Tass Russian News Agency v. Russian Kurier, Inc., 1999 U.S. Dist. LEXIS 1101, 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)) and finding withdrawal justified [*189] 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 "such a requirement … was tantamount to being superseded by another

89 The Disciplinary Rules of the Code of Professional Responsibility have been jointly adopted by the Appellate Divisions of the State of New York and are binding upon attorneys practicing in New York. See§§N.Y. Comp. Codes R. & Regs., tit. 22 § 603.2, 691.2, 806.2, 1200.7.
90 A determination that a withdrawal is permissible for an attorney who has appeared on behalf of a client before a court is distinct from a finding that any termination was or was not "for cause" for purposes of that attorney's right to compensation. See, e.g., Casper v. Lew Lieberbaum & Co, Inc., 1999 U.S. Dist. LEXIS 7779, 1999 WL 335334, at *5 (granting motion to withdraw based on irreconcilable conflict but finding that discharge was not "for cause" for purposes of fee determination).

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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 retaining lien).
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 [*190] 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 973, 974, 457 N.Y.S.2d 343, 343).
(2) Application
CN&S contend that T&F forfeited their right [*191] 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 [*192] 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 [*193] 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 [*194] conclude that T&F may have been responsible for

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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 [*195] 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 constructively discharged.
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 RoperSimpson testified that Cochran complained about the amount, she thought he "was sort of putting down Mr. Rubenstein" [*196] (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. [*197] 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 [*198] 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, 91 Roper-Simpson described a meeting which she attended in Rubenstein's office where

91 Mr. Scheck testified that the meeting at which he addressed the Guiliani time statement with Figeroux was sometime before Christmas 1997 (S. Tr. I at 84), which was several weeks before the first printed articles discussing Louima's retraction of the Guiliani time statement appeared in the Daily News and The New York Times on January 15, 1998. (See Exs. 35, 36).

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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, RoperSimpson 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, [*199] 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).
[*200] Given the lack of any evidence to corroborate RoperSimpson'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. 92
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, [*201] 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, 93 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 [*202] 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 [*203] 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 zthe 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 U.S. Dist. LEXIS 7779, 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

92 The Court also notes that it was not until her testimony in the fee proceeding that Roper-Simpson ever raised this claim. (R.S. Tr. III at 167).
93 To the extent that T&F attempt to argue that CN&S' failure to inform them of the Tacopina meetings in violation of the retainer agreement was a basis for justifying their withdrawal, this Court finds that T&F did not become aware of the Tacopina meetings until long after the January 23, 1998 termination and thus, the Tacopina meetings could not have been considered by T&F at the time they withdrew as counsel. (See discussion infra at 173-74).

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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 [*204] 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 of Louima.
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 [*205] 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).
(1) Standing
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 "tactical 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. [*206] 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., 140 F.3d 442, 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 [*207] a fee splitting arrangement between defendant and defendant's counsel);Pepe & Hazard v. Jones, 2002 Conn. Super. LEXIS 2997, 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, 94 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. 2107(A)(1), N.Y. Comp. Codes R. & Regs., tit. 22 § 1200.12 (requiring only [*208] 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, 996 (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. 2-107]").

94 Roper-Simpson was not a party to this agreement.

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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 [*209] 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 onethird 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. 60).
(2) Confidences and Secrets
It is well established that [*210] "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 "'confidence' [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 [*211] 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 "making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or [*212] 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] the Code of Professional Responsibility imposes a continuing obligation on attorneys to protect their clients' confidences and secrets." Brown & Williamson Tobacco Corp. v. Chesley, 2002 N.Y. Misc. LEXIS 1651, 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 postwithdrawal prejudice to the client. D.R. 2-110(A)(2), Regs.,tit. 22 N.Y. Comp. Codes R. & § 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 N.Y. Misc. LEXIS 1651, 2002 WL 31940719, at * 1 [*213] .
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.

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(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 [*214] was "talking to the media throughout," without specific permission from Louima. (F. Tr. I at 197).

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 [*216] 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).

Perhaps the quintessential example of a press communication in violation of an attorney's ethical obligations under D.R. 4101(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 '"it is all about money where this family is concerned.'" (Ex. 27). Not only are these disclosures a blatant [*215] 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 Louima.
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

(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 "confidences 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). [*217] 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, 25 L. Ed. 2d 763, 90 S. Ct. 1441

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(1970). The rationale behind allowing disclosure in this type of a factual dispute between a client and his attorney is that "to the extent that [*218] 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, 42 L. Ed. 2d 272, 95 S. Ct. 314 (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) [*219] (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. NLRB, 236 U.S. App. D.C. 298, 735 F.2d 564, 576 (D.C. Cir. 1984); Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d at 1194-95.

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 1196.
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 [*221] 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.

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 [*220] 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.

(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 [*222] 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

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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 confidentiality.
T&F attempt to justify their public statements made after January [*223] 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 Federal Sav. & Loan Asso. v. Oppenheim, Appel, Dixon & Co., 110 F.R.D. 557, 559 (attorney named as third party defendant in civil suit); General Realty Assocs. v. Walters, 136 Misc. 2d 1027, 1029, 519 N.Y.S.2d 530, 532 (N.Y.Civ. Ct. 1987) (allowing attorney to testify [*224] as to communication with former client to impeach client's testimony regarding that communication). 95 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.

[*225] 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 [*226] 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 retracted 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). 96 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

95 While the Civil Court's ruling in General Realty did allow an attorney to testify regarding a privileged communication in the absence of a pending or contemplated civil or criminal proceeding against that attorney, the sole case cited by the Court was Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190. In Meyerhofer, the attorney invoking D.R. 2-101(C)(4) was a named defendant in a civil suit. In any event, although not mentioned by the Court in General Realty, the former client in General Realty had placed the privileged communication at issue in her landlord-tenant dispute, thereby waiving the privilege as to that communication. In addition, T&F rely on Stirum v. Whalen, 811 F. Supp. 78, 84 (N.D.N.Y. 1993). However, in Stirum the attorneys seeking to disclose client confidences were named defendants in a civil action for fraud. Id.
96 Figeroux contends that, contrary to the claims of CN&S, his repetition of the Giuliani time statement to the press does not warrant his forfeiture of fees because Figeroux simply had no reason to believe that Jonas would "invent a lie" or that Louima would thereafter ratify the statement to the press. (T&F Post-Tr. Br. at 21). T&F contend that it was Figeroux's trust in Louima and his family, coupled with Louima's failure to tell the truth, that led to the problems faced by Louima later during the criminal trials. (Id. at 21-22). Although the Court finds that Figeroux's repetition of the Guiliani time statement to the press without first

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any such proceeding contemplated. Indeed, there was never a formal allegation of attorney misconduct by the client in this case.
[*227] 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. 97 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 [*228] ethical obligations. 98 The fact that the press may have been speculating as to Figeroux's role in the Giuliani time statement 99 does not constitute the type of accusations contemplated by the Disciplinary Rules that warrant disclosures of client secrets.
[*229] 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. 100 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.
[*230] 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 "without question, case law addressing the topic of breach of an attorney's fiduciary duties to his client sanctions denial of legal compensation"); see also Silbiger v. Prudence Bonds Corp., 180 F.2d 917, 920-21 (2d Cir.), cert. denied,340 U.S. 831, 95 L. Ed. 610, 71 S. Ct. 37 (1950); In re Estate of Winston, 214 A.D.2d 677, 625 N.Y.S.2d 927 (2d Dep't 1995) (holding that '"an 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 [*231] (2d Dep't 1989)).
Applying New York law, courts have held that even an attorney who is found guilty of champerty, see, e.g.,

confirming it with Louima was irresponsible and reckless, this incident alone would not, in this Court's view, justify a forfeiture of fees and the Court has not relied on this incident in reaching its recommendation here.
97 In this regard, the Fifth Circuit has held that even where the client waived the privilege by suing his attorney for malpractice, the waiver does not extend to all subsequent proceedings such as criminal charges in which the communications are relevant. See United States v. Ballard, 779 F.2d 287, 292 (5th Cir. 1986).
98 T&F have also contended that their response was "restrained." (Transcript of Hearing on Oct. 16, 2002 at 9). Not only were T&F's statements to the press anything but restrained, but the suggestion to the press that there were "ethical" problems with the way the case was being handled prejudiced Louima individually, by criticizing not only the attorneys but Louima as well, and raising issues of his credibility that potentially prejudiced him in the criminal proceedings.
99 Indeed, any diligent investigative reporter could have discovered that Figeroux was the first to repeat the Giuliani time statement publicly by doing a simple Lexis-Nexis search.
100 T&F also point to a purported quote from Rubenstein in a January 28, 1998 Daily News article that the Giuliani time statement was the subject of a federal probe. (Ex. 14). While Rubenstein admitted that he had provided other information to the author of this article, Rubenstein denies making this statement, stating that the language was a mischaracterization of what he actually said. (R. Tr. at 89-91). Even if Rubenstein had made this statement, it does not invite response from T&F nor does it justify their statements to the press.

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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 "the 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, 2000 U.S. Dist. LEXIS 4842, No. 00 CV 1140, 2000 WL 420557, [*232] 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." Decolator, Cohen & DiPrisco, LLP 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. [*233] 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 [*234] 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., Silbiger 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 [*235] 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, 101 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

101 There has been no evidence of any ethical violations by Ms. Roper-Simpson, who appears to have acted in Louima's interest at all times and did not have any discussions with the press that were not authorized.

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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, [*236] 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.

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 [*239] Louima would have to pay her. (Id. at 79).

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 action.
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 [*237] 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, 102 "sometime 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.") PP 8 - 10).

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 [*240] was correct, but testified that "in 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 181).

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] thinks FB [Brian Figeroux] thinks & concern that I [Roper-Simpson] [*238] 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 no writing. Attys keep changing, percentage keep changing." (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

Subsequently, during the course of her testimony, RoperSimpson'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,

102 She testified during the fee proceeding that she was never an associate in the firm of T&F, nor a partner either. (R.S. Tr. III at 130).

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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 [*241] 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). 103 Based on 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.

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). 104 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 [*243] her share would come out of the share allocated to T&F. 105See, 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.

[*242] Her Post-Hearing Memorandum of Law states: "it 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 Retainer Agreement].
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).

[*244] 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). 106
Based on Roper-Simpson's and [*245] Figeroux's description of the relationship between Roper-Simpson

103 In addition, D.R. 2-106(D) requires all contingent fee agreements to be documented in a writing provided to the client. D.R. 2-106(D), N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.11.
104 This Retainer Agreement lists Rubenstein & Rynecki, Thomas & Figeroux, and Johnnie Cochran, Barry Scheck and Peter Neufeld. (Ex. 2). Roper-Simpson's name does not appear anywhere in the document. (Id.)
105 Her actions and those of T&F in reaching a fee-splitting agreement also arguably violate the Disciplinary Rules. D.R. 2-107 prohibits the division of fees for legal services with an attorney who is not a partner or associate in the lawyer's firm except with the client's consent. D.R. 2-107, N.Y. Comp. Codes R. & Regs., tit. 22, § 1200.12.
106 He also testified that the firm of T&F was actually created on the same day Figeroux came back from his first visit with Louima in the hospital and met with Thomas. (F. Tr. III at 64). From the chronology of events, it appears that Roper-Simpson became involved shortly thereafter.

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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 RoperSimpson'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 RoperSimpson 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 [*246] that T&F should receive a percentage of the fee award, this Court respectfully recommends that RoperSimpson receive a portion of those fees awarded to T&F based on her contribution to the Louimas' representation.
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." Cohen v. Grainger, Tesoriero & Bell, 81 N.Y.2d 655, 658, 622 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, "when 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 U.S. Dist. LEXIS 7779, 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 [*247] basis once the case is concluded. Id. 1999 U.S. Dist. LEXIS 7779 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., 370 F.3d 259, No. 02 CV 9469, 2004 WL 1203147, at *3 (2d Cir. June 2, 2004);

Tillman v. Komar, 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.
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., 370 F.3d 259, 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 [*248] 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. Consolidated Edison Co. of New York, 1991 U.S. Dist. LEXIS 10837, 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, "the 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." 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 [*249] 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").

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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 [*250] 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 onethird to CN&S, one-third to the Rubenstein firm, and onethird 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." Paolillo 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).

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 …. specifying, 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 RoperSimpson have made it clear in their testimony that there were no fee records kept in this case [*253] 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 ethical violations.

Indeed, normally, in calculating a reasonable attorney's fee, courts first determine a "lodestar" [*251] 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, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983); Cruz v. Local Union No. 3 of the IBEW , 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., 2001 U.S. Dist. LEXIS 185, 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 U.S. Dist. LEXIS 185, 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 "the 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 [*252] 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

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 [*254] 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 178-79).
Barry C. Scheck testified that he is 53 years old, graduated from Yale University and from law school at the

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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 [*255] 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 mid1980'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 cocounsel 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 [*256] 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 [*257] 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 [*258] ("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 expolice force. (Id. at 72). When questioned, Figeroux conceded that [*259] 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

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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 [*260] 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.

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 6263); 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).

(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 working 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 13944; Thomas Tr. at 41-44)). Ms. Thomas testified that her husband spent "many, many hours" on the case in the period following Louima's assault; in fact she "hardly 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 [*261] he would work very late at night making phone calls. (Id.) She also testified that there were one or two

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 [*262] 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). 107 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. 108 (T. Tr. at 218). [*263]
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. 109 More important, however, is the fact that,

107 They also claim that they assisted Rubenstein in filing the initial Notice of Claim. (T& F Post-Tr. Br. at 9; Ex. 3). Rubenstein, however, testified that the initial Notice of Claim was prepared by Mr. Rynecki and brought to Brooklyn Hospital on August 15, 1997 where it was signed by Louima. (R Tr. at 39). While T&F may have reviewed it prior to the filing, neither Thomas or Figeroux signed the Notice of Claim, and Rubenstein's testimony suggests that his firm did the bulk of the work associated with the first Notice of Claim.
108 Roper-Simpson also claimed that she spent an extended amount of time successfully defending more than a hundred persons arrested for protesting on Louima's behalf, which she did without compensation. (R.S. Tr. I at 62-65). However, she failed to present any evidence that Louima had authorized her to do such work or more importantly agreed to pay for it. Nor has she presented a single authority authorizing payment of fees from one client, without authorization, for work performed for other clients in circumstances similar to these.
109 However, the failure to provide contemporaneous time records is not fatal to T&F's claim for fees. See 601 West Assocs. LLC v. KleiserWalczak Constr. Co., 2004 U.S. Dist. LEXIS 8920, No. 03 CV 7942, 2004 WL 1117901, at *5 (S.D.N.Y. May 18, 2004).

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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). 110 Figeroux testified that he depended [*264] 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). 111 Whatever notes she had were given to Figeroux, who did not produce them for the hearing. (Id.) [*265]
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).

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).
[*267] 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 17071), 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).

(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. 112 As Mr. Scheck testified, CN&S investigated [*266] 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.

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 [*268] 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 Comfeld 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

110 Neufeld testified that, although he asked on more than one occasion for any notes or files that Thomas, Figeroux, or Roper-Simpson had kept that related to Louima's case, he was told that they had no notes or files. (N. Tr. I at 89). During his deposition by Mr. Fischetti, Figeroux testified that he did not take any notes of what was said by Louima nor did he recall the specifics of their discussions during the first days. (Ex. 41 at 10).
111 Roper-Simpson testified that "most of the time … I was sitting [in the hospital] with [Louima], I would be reading a book. My job if you will was to make sure that no one spoke to him without an attorney being there." (R.S. Tr. I at 42)
112 Although Neufeld testified that he may have kept some time records related to the Louima matter, neither the CN&S attorneys nor Rubenstein have submitted any time records to this Court in support of their motion.

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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 [*269] 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 238-241). 113
[*270] 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). 114 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 discussed.
[*271] 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 liens. (Id.) 115
[*272] 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, 116 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

113 According to Neufeld, T&F and Roper-Simpson "had absolutely no role" in the research and drafting of the various Complaints, Exhibits 47, 48 and 49, even though that "research … was ongoing while they were still involved in the case." (N. Tr. I at 67).
114 Neufeld testified that, in the fall of 1997, when he first mentioned pursuing this novel course of action against the PBA, Thomas and Figeroux "thought that the idea was stupid," and "declined specifically to offer any assistance in the drafting of these pleadings." (N. Tr. I at 63-64).
115 Although T&F appear to question Rubenstein's right to recover his share of the fee based on the amount of work he performed, the courts have held that regardless of the amount of an attorney's contribution, he does not forfeit his fee as long as he never refused to contribute more substantially. See, e.g., Sterling v. Miller, 2 A.D.2d 900, 157 N.Y.S.2d 145, 147 (2d Dep't 1956), aff'd,3 N.Y.2d 778, 143 N.E.2d 789, 164 N.Y.S.2d 32 (1957). Of course, with regard to T&F, the mere existence of a retainer agreement does not guarantee a right to fees when there has been an unjustified withdrawal and the commission of ethical violations.
116 Figeroux testified that members of Louima's family were originally opposed to a federal prosecution. (F. Tr. III at 40-41).

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for the aiding or concealing of the assault. In the end, it is impossible [*273] 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 [*274] into civil rights violations, virtually guaranteed an inquiry by the Office. (P. Tr. at 7-8, 11-13, 7475). 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) [*275] 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. 117 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.
[*276] 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 at 122-26).
In determining an appropriate rate [*277] 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., 160 F. Supp. 2d 380, 382 (E.D.N.Y. 2000) (increasing from $ 175 to $ 200 per hour

117 The most recent statement from the escrow agent indicates that, as of June 30, 2004, the value of the total attorneys' fees held in escrow is $ 3,031,750.16.

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the rate at which a solo practitioner in the Eastern District [*278] 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 Med., P.C., 2000 U.S. Dist. LEXIS 5285, 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, 1213 (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. City Univ., 13 F. Supp. 2d 326, 345-46 (E.D.N.Y. 1998)). [*279]
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 RoperSimpson 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 [*280] 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 RoperSimpson. 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 [*281] the fee. 118
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 P 12). Not only does this Court find Mr. Scheck's denial of this allegation [*282] 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 P 14). Not only is there not a

118 The Court agrees with the Estate's position that given that the Figeroux Affidavit was submitted after the death of Mr. Thomas, at a time when the partnership would have been dissolved as a matter of law, seeN.Y. Partnership Law § 62(4), Figeroux's misconduct in this regard cannot be attributed to the Estate, or for that matter to Roper-Simpson, to deprive them of their share of the fees. See Vollgraff v. Block, 117 Misc.2d 489, 492, 458 N.Y.S.2d 437, 440 (N.Y. Sup. Ct. 1982) (partnership dissolution discharges former partner from obligations arising after dissolution).

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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 [*283] either his testimony or in his account of who was in the bathroom with Volpe; it was always the driver.
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 [*284] 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). [*285] 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 [*286] 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. 119 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.
[*287] 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

119 The Court finds Figeroux's conduct in connection with this fee proceeding to be so beyond the bounds of ethical conduct that it warrants a referral to the Disciplinary Committee of the Bar and a recommendation that he be barred from further practice in this Court. However, recognizing the serious consequences of such a referral, the Court will not, at this time, make such a recommendation without first affording Mr. Figeroux an opportunity to respond and provide a justification or explanation for his conduct.

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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 [*288] family in violation of the Disciplinary Rules.

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 [*290] 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).

D.R. 2-103 prohibits an attorney from "soliciting professional employment" directly from a prospective client "by-in person or telephone contact." D.R. 2-103(A), 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, 7 A.D.3d 11, 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 [*289] professional employment from a close friend, relative, former client or current client" D.R. 2103(A), 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

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 [*291] 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

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that CN&S failed to inform the government [*292] 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 "with 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 "not 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 [*293] 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 249-50).
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. [*294] 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 [*295] 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, 120 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, [*296] 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.

120 Even if CN&S' failure to inform T&F of the Tacopina meetings did constitute a breach of the Agreement, that breach was excused by T&F's uncooperative and unreliable conduct prior to the Tacopina meetings, and by T&F's pattern of leaks to the press. This, therefore, does not constitute grounds to deny CN&S fees.

2004 U.S. Dist. LEXIS 13707, *296

Page 67 of 67

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.
CONCLUSION
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 [*297] 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.

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. See28 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 Cir. 1989).
The Clerk is directed to mail copies of this Report [*298] and Recommendation to the parties.
SO ORDERED.
Dated: Brooklyn, New York
July 21, 2004
CHERYL L. POLLAK

Finally, this Court respectfully recommends that T&F's United States Magistrate Judge motion to have CN&S forfeit their fees be denied.

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ABNER LOUIMA and MICHELINE LOUIMA,

Louima v. City of New York

Plaintiffs,

-against-

PN-NY 001-002

98 CIV 5083 (SJ)

THE CITY OF NEW YORK (CITY); THE

PATROLMEN'S BENEVOLENT ASSOCIATION OF

THE CITY OF NEW YORK (PBA); individually and in

their official capacity as New York City Police Officers -

JUSTIN VOLPE, CHARLES SCHWARZ, THOMAS

BRUDER. SERGEANT MICHAEL BELLOMO,

FRANCISCO ROSARIO, ROLANDO ALEMAN,

PETER BLAICH, JOSEPH O'BRIEN and JEREMIAH DALY;

individually, in their official capacities as New York City

Police Officers, and as PBA Delegates -THOMAS WIESE and

TIMOTHY LEE; in their official capacities as President of the PBA -

LOUIS MATARAZZO and PATRICK LYNCH; individually,

and in their official capacity as New York City Police

Officers, and in their official capacity as agents of the PBA -

MICHAEL IMMITT and ANTHONY ABBATE;

individually and in their official capacity as employees of

the Emergency Medical Service (EMS) for the City of New York -

WILLIAM PAGAN and FRANK BIRNBAUM; individually

and in their official capacity, JOHN DOES, police officers

and non-uniformed employees of the New York City Police

Department, the identity and number of whom is presently unknown;

individually and in their official capacity as New York

City Police Officers RICHARD ROES, supervisory police

officers of the City of New York, the identity and number

of whom is presently unknown; and individually and in

their official capacity as police officers and/or agents for

the PBA - WILLIAM WOES, agents for the PBA, the

identity and number of whom is presently unknown,

Defendants. --x
PLAINTIFFS' MEMORANDUM OF LAW IN RESPONSE TO THE PBA'S MOTION TO DISMISS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

vii

FEDERAL CASES

vii

STATE CASES

xii

FEDERAL STATUTES

xiii

OTHER AUTHORITIES

xiii

PRELIMINARY STATEMENT

1

I. Controlling Principles

6

A. Substantive Law

6

B. The Rule 12(b)(6) Standard

12

II. The PBA Is Legally Responsible For Its Role in Denying

Mr. Louima's Federal Civil Rights

14

A. The Complaint States a Claim Under Section 1983

14

1. The PBA May Be Held Jointly Liable Under Section 1983 Based On Its Role in Depriving Mr. Louima of His Rights (15)
2. The Complaint Alleges PBA Involvement Under "Color of Law" (16) a. Section 1983 Liability Does Not Depend On Proof That The PBA Is a Governmental Entity (17) b. The Color of Law Requirement Is Satisfied By The PBA's Wilful Joint Participation (20) c. The Complaint Adequately Pleads Joint Participation (24) d. The PBA Was Acting Under Color of Law (28) e. The PBA Actions Are Under "Color o f . . . Custom or Usage" (32)
3. Under Settled Law, The PBA's Involvement Is "Personal" (32) a. The Link Between The Code of Silence And The Injuries Satisfies Section 1983's Causation Requirement (34) b. Section 1983 Fully Applies to Labor Unions Who Act Jointly With State Actors to Deny Civil Rights (43)
4. The Complaint Adequately States a Deprivation of Federal Rights (47)

III. The PBA Actions Violate The Civil Rights Conspiracy Laws

54

A. The PBA's Liability For Section 1986 Does Not Depend on Proving Its

Conspiratorial Involvement

54

B. The Complaint Adequately Pleads Injury Under Section 1985

57

C. The Complaint Adequately Alleges PBA Involvement in Section 1985(3)

Conspiracies and the Section 1985(2) Conspiracy to Impede the Due

Course of State Justice

59

1. The Complaint's Allegations of Class-Based Animus A r e Sufficient

(59)

2. The PBA Is Liable For Hindering The Provision of Equal Protection

(60)

V. The Complaint States Common Law Claims Against the PBA and

the Individual Defendants

63

A. The Complaint Adequately Pleads A Cause of Action For Negligence . . . . 63

B. The Complaint Adequately Pleads Intensional Infliction

of Emotional Distress

66

1. The Complaint Adequately States Claims Against Defendants Immitt and Lee And On Behalf of Plaintiff Micheline Louima (69)

CONCLUSION

70

11

PRELIMINARY STATEMENT Although couched in the familiar language of Rule 12(b)(6) and replete with requisite boilerplate concerning "bald" and "conclusory" allegations, the Memorandum of Law ("Memorandum") submitted by defendants PBA. et al. in this case is an extraordinary document.1 At bottom, the PBA defendants argue that the facts set forth in the complaint - describing the PBA's policy and custom of subverting the criminal and civil justice system on behalf of violent police officers and its specific actions aimed at assuring that Mr. Louima's case would never see the light of day and that he would endure further pain and humiliation for having pursued legal remedies - are "not properly redressed by the federal civil rights laws." Memorandum at 3. Both the general practices and the specific acts of perjury, subornation, and intimidation set out in the complaint, the PBA assures the Court, are "necessary" incidents of its role as collective bargaining agent for its police officer members. W. at 11. As will be demonstrated below, these assertions are no less an affront to settled principles of civil rights law than they are to common sense and common decency. As will also become clear, the facts alleged in the complaint - which, consistently with the notice pleading contemplated by Fed. R. Civ. P. 8(a), constitute only a small selection of what emerged in the course of three criminal trials ~ have not been presented in order to "'shock,'" Memorandum at 21 (quoting Barr v. Abrams. 810 F.2d 358, 363 (2nd Cir. 1987)) (though it is hard to present them in a way that might not provoke that reaction). Rather, they
'The PBA seeks dismissal of all claims against the union, its past and present presidents, and individual defendants Immitt and Lee (defendants Abbate and Wiese, though sued, in part, based on their actions on behalf of the PBA are not signatories to the motion, nor does the motion address claims against "William Woe" defendants). Except where specifically indicated, this Memorandum will refer to the movants - union and individual - as "the PBA."
1

have been set out so as to demonstrate the patent illegality of Defendants' conduct and Mr. Louima's plain entitlement to redress from the PBA for its central, culpable role in the constitutional deprivations to which he has been subjected.
At the outset, the PBA's Motion fails to clear even the lowest hurdle confronting a defendant seeking dismissal of a federal complaint: it does not attempt to demonstrate that the factual allegations of the Complaint do not state a claim. Rather then accept as true - as any Rule 12(b)(6) movant must, see, e.g.. King v. Simpson. 189 F.3d 284 (2nd Cir. 1999) - the allegations in Mr. Louima's civil rights complaint, the PBA seeks to respond to a different and tellingly incomplete set of "facts." Thus, where the complaint alleges that defendant Schwarz "helped restrain Louima while Volpe took a stick and shoved it into Mr. Louima's rectum," %. that "Schwarz and Volpe administered summary punishment," ^42, and that "Schwarz, attempting to silence Mr. Louima's cries of pain, placed his booted foot on Mr. Louima's face/' *44. the PBA characterizes the complaint as alleging a " r e a l . . . injury stemming from an act committed by a police officer," Memorandum at 1 (emphasis supplied); id. at 3 ("Louima was assaulted and sodomozied by defendant Justin Volpe"), and insists that Mr. Louima "departs from the realm of reality" in asserting that the actions described were not those of "one depraved individual." Memorandum at 12 (emphasis supplied). And where the complaint states that Mr. Louima "was beaten severely bv Schwarz and Wiese about the face and body," ^[37 (emphasis supplied), the Memorandum offers a carefully abbreviated summary of that paragraph, characterizing it as alleging that "Louima was beaten." Id. at 3.2
2Nor does this exhaust the evidence of Defendants' obtuse approach toward the contents of the complaint. Their "statement of facts" - offered in support of an argument that the complaint's allegations are insufficient contains other indications that relevance to Mr. Louima's claims against

But mere inconsistency with conventions of federal pleading is not the most troubling
aspect of the PBA's submission. What makes the Memorandum especially unsettling is that the
facts the PBA takes pains to ignore are ones that have already been established, bv proof beyond
a reasonable doubt, in the course of three criminal trials, see, e.g.. United States v. Bruder. 103 F.
Supp. 155,177 (E.D.N.Y. 2000) ("[t]he jury found that Schwarz helped Volpe to sodomize
Louima with the admitted purpose of humiliating him") - and that the omissions come in a
them was a criterion for exclusion from Defendants' summary.
Among the allegations the PBA would have the Court ignore for purposes of deciding its motion are that defendant Wiese was "at all relevant times.. .an agent of the PBA. acting under its directives," ^|26.d; "that one or more of these PBA agents invoked their 5th Amendment right against self incrimination" in testifying before matters at issue here fl[77); that Defendant Immitt "testified falsely," (^78); the basement meeting was convened by "defendant Wiese, in his capacity as PBA delegate"( f72); see also ^83 c ; and the discussion of "ways to intimidate Louima" was not confined to "the officers," Memorandum at 5, but rather is believed to have included the "participants" (f72), including Immitt; the PBA maintains "policies, customs and practices of suppressing confessions and admissions of criminal conduct committed by police officers, of discouraging police officer witnesses from doing their duty, and of condoning and facilitating false statements to investigators" (1)79); there were "scores of phone calls between and among the officers involved and the PBA agents" (1f83.d); the PBA "intimidat[ed] and defamfed] those individuals who did answer investigators' questions fl[94.d); the PBA "circulated] false and defamatory information concerning Mr. Louima, in an effort to discourage him from telling authorities and courts the truth about what was done to him and to diminish the credibility of any information and testimony he did give" (1J95. e); the "PBA, through its agents, continues to deter and discourage police officer witnesses from testifying truthfully in federal court" (11132); "PBA and other unions 'put[] immense pressure on the guiltless officer - who may want to answer questions - not to stray from the common practice of abiding by union advice and remaining silent'; that 'PBA delegates and attorneys help reinforce the code of silence,' and that 'the PBA often acts as a shelter and protector of the corrupt cop, rather than as a guardian of the interests of the vast majority of its membership, who are honest police officers.'" (1(164) (quoting Mollen Commission); and "it has been [the PBA's] standard operating procedure to abet and orchestrate the obstruction of justice in even the most notorious instances of police misconduct,"Cfll 70) - including in the notorious police killing of Anthony Baez fl[ 171) and others. See generally 1J173 ("It is the custom and practice of the PBA to treat those officers who want to come forward - and not those who violently abuse citizens - as wrongdoers"); compare also Memorandum at 18 (asserting that respondeat superior principles are inapplicable to § 1985 claim here because "plaintiffs seek[] only money damages from the PBA" with complaint at 55 (plaintiffs request that the Court award "equitable relief against the PBA").

pleading responding to a complaint seeking to hold the PBA accountable for. among other things, a continuing effort to suppress the true facts concerning Mr. Louima's torture. See Iffil 12. 135, 141. Nor is it plausibly a coincidence that the facts which the PBA cannot bring itself to accept even for pleading purposes are the very same ones that the several of the individual defendants have been sentenced to substantial terms of imprisonment for having denied.3
But while disregard for this basic 12(b)(6) requirement is probably the most jarring of the defects in Defendants' pleading - and should suffice in itself to defeat their demand for dismissal - the Memorandum's unreliability does not stop with its factual recitation. Whatever surface plausibility the PBA's various assertions concerning causation, legal duty, and state action might have is obtained by distorting - or simply ignoring - applicable decisions of the Supreme Court and the Second Circuit, by attacking straw-man legal theories the PBA mistakenly ascribes to Mr. Louima's complaint, and by diverting attention to legal principles that have scant relevance to this case.
Thus, for example, the Memorandum labors to show that the PBA is not a "governmental entity" - a fact that is not in dispute - but nowhere reckons with the established princinrte thata~"~" non-governmental actor may be held fully accountable under Section 1983 on proof tjiiat it was a "wilful joint participant" - as the PBA surely stands accused of having been - in government action depriving an individual of his federal rights, Adickes v. S. H. Kress & Co.. 398 U.S. 144,
3As the complaint illustrates, saying that Mr. Louima's charges "depart from reality" is a familiar tactic in Defendants' arsenal - and those words are by no means the harshest ones they have directed at Mr. Louima. For purposes of a motion to dismiss - and beyond, sge. Emich Motors v. General Motors. 340 U.S. 558, 568-69(1951) - prudence suggests that the Court proceed on the assumption that, in instances of conflict, the verdicts of juries convinced unanimously beyond reasonable doubt are a more reliable indicator of "reality" than is whatever version of the events of 1997 that the PBA may now be advancing.

152 n.7 (1970); Dvvares v. Citv of New York. 985 F.2d 94, 98 (2nd Cir. 1993 ): see also Hushes v- PBA. 854 F.2d 876, 880-81 (2nd Cir. 1988). And the PBA discusses at some length (though not correctly) the common law rule that proximate causation requires more than "furnishing a condition" that permits a tort to occur, see Memorandum at 21-22, without even bare
lowledgment of the abundant case law specifically teaching that, for Section 1983 purposes, a policy of deliberate indifference to preventable and plainly foreseeable constitutional deprivations can establish the necessary link. See, e.g.. Fiacco v. Citv of Rensselaer. 783 F.2d 319. 326 (2nd Cir. 1986) (explicitly rejecting "suggestion that a municipal policy t h a t . . . merely permits or tolerates unconstitutional acts by city employees cannot be the basis for . . . liability under § 1983"). And the PBA cites a patchwork assortment of state law tort cases as supporting its assertion that labor unions must be treated differently from other private wrongdoers under section 1983, see Memorandum at 16, when, in fact, the case law makes clear that they, no less than other private actors, are subject to the legal obligation, imposed by section 1983, to refrain from participation in unconstitutional state action. See, e.g.. Andrews v. Education Ass'n of Cheshire. 829 F.2d 335 (2d. Cir. 1987).
Finally, the PBA would have the Court dismiss Mr. Louima's case on the specious ground (a) that his complaint seeks to hold the PBA liable simply because those who brutally attacked him under color of law happened to be union members or (b) that it treats the mere fact of their municipal employment as sufficient to render union officials state actors. In so arguing, Defendants are simply striking out at arguments of their own imagining. Any fair reading of the complaint - let alone the indulgent one contemplated by Federal Rule 12(b)(6) - makes clear that no such rule of automatic liability is asked for, nor is one needed to hold the PBA and its

agents responsible for the consequences of the union's active, willing involvement in a deeplyingrained municipal custom of protecting police officers from criminal and civil rights liability for violent deprivations of innocent citizens' constitutional rights. I. Controlling Principles
A. Substantive Law 42 U.S.C. § 1983 provides that:
Every person who, under color of any statute, ordinance, regulation., custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
It is axiomatic that section 1983 does not create substantive rights beyond those protected by the Constitution and laws of the United States. Its purpose is to provide a remedy to those who (1) are deprived of rights (2) under color of law. See Singer v. Fulton County Sheriff. 63 F.3d 110 (2nd Cir. 1995).
In Monroe v. Pape. 365 U.S. 167, 172-83 (1961), the Supreme Court held that the "color of law" requirement does not limit § 1983 liability to defendants whose actions are authorized by law. and the Supreme Court's decisions have made equally clear that whether particular conduct was under color of law fact cannot be settled by the fact that the defendant is or is not an officer of the state. See Adickes. 398 U.S. 144 (1970); Terrv v. Adams. 345 U.S. 461 (1953). Adickes specifically recognized that when a private person acts pursuant to a State law, policy or custom - Le. a "practice[]... so permanent and well settled" as to have the force of law, 398 U.S. at 167-68 - he acts under color of law.

Adickes also established that [pjrivate persons, jointly engaged with state officials in the prohibited action are acting "under color of law for purposes of [Section 1983]." To act 'under color' of stale law does not require that the accused be an officer of the State. It is enough that he is a wilful participant in joint activity. 398 U.S. at 152 (quoting United States v. Price. 383 U.S. 787, 797 (1966)). And other decisions have made clear that the actions of individuals who are not officers of the state may also give rise to § 1983 liability when the individual "exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law."' \Vest_v. Atkins. 487 U.S. 42, 49 (1988) (quoting United States v. Classic. 313 U.S. 299. 326 (1941)); see also Lugar v Edmondson Oil Co.. Inc.. 457 U.S. 922 (1982^: see generally Anava v. Crossroads Managed Care Svs.. 195 F.3d 584, 596 (10th Cir. 1999) ("If any one of the tests indicates a party is a state actor, that alone is sufficient to find the party a state actor"); Lugar. 457 U.S. at 939 (whether a party acts under color of law is a "necessarily fact-bound inquiry"). In Monell v. New York Citv Department of Social Servs.. 436 U.S. 658 (1978), the Supreme Court, after canvassing the legislative history of the 1871 Act, overruled prior precedent and held that municipalities may be sued under section 1983 based on the unconstitutional acts of their employees and agents. Such suits, the Court held, however, may not proceed based on a theory of respondeat superior. Instead, the plaintiff must show that the municipal defendant was itselfa^participant in the deprivation, byshowing that the challenged actions he result of ajnpn^rffll policy or custom. The Court has also affirmed what the disjunctive language of § 1983 would suggest: that a defendant's responsibility under § 1983 does not depend on a plaintiffs proving the existence

of a formal municipal policy condoning unconstitutional conduct. See Monell. 436 U.S. at 691 (municipality must answer in § 1983 for actions pursuant to a "governmental custom even though such custom has not received formal approval"); Adickes. 39S U.S. at 168; Vann v. City of New York 72 F.3d 1040,1049 (2nd Cir. 1995). Indeed, defendants may be held liable based on customs that directly contradict their official pronouncements of governmental policy. See, e.g.. City of St. Louis v. Prapotnik, 485 U.S. 112, 131 (1985) (existence of anti-discrimination policy would not immunize municipality against liability for discriminationi: White-Ruiz v. Citv of New York. 983 F. Supp. 365, 392 & n.19 (S.D.N.Y. 1997); see generally Myriam E. Gilles. Breaking The Code of Slence: Rediscovering "Custom" in Section 1983. 80 B.U. L. REV. 17 (2000).
While a defendant's negligence will not give rise to liability under § 1983, proof of deliberate indifference to a foreseeable constitutional violation will suffice to establish legal responsibility. Citv of Canton v. Harris. 489 U.S. 378, 388 (19891: see also Dodd v. Citv of "Norwich. 827 F.2d 1, 5 (2nd Cir. 1987)(discussing requirement that plaintiff link challenged policy to injury): see Gentile v. Suffolk County. 926 F.2d 142, 152-53 (2nd Cir. 1991) (same); Jen v. Dallas Ind. Sch. Dist.. 491 U.S. 701, 737 (1989) ("it is for the jury to determine whether the deprivation of rights at issue . . . [was caused by] acquiescence in a long-standing practice or custom which constitutes the 'standard operating procedure' of the local government entity").
Finally, while the legal standards governing the types of cases are not precisely identical, courts have established that the same factors - proof of (1) custom or policy and (2) deliberate indifference - are the touchstones for deciding when a government employee's supervisor or a private defendant may be held accountable under the statute for the unconstitutional conduct of
8

an employee, see Memorandum at 17 (citing Austin v. Paramount Parks. Inc.. 195 F.3d 715 (4"' Cir. 1999) (private defendant); Spencer v. Doe. 139 F.3d 107, 112 (2nd Cir. 1998) (supervisor); cf. Doe v. Taylor Ind. Sch. Dist.. 15 F.3d 1443, 1453 (5th Cir.) (en bane) "[t]he legal elements of an individual's supervisory liability and a political subdivision's liability, however, are similar enough that the same standards of fault and causation should govern").
Although private defendants who conspire with state officers to take unconstitutional action may be held accountable for the harm that action causes, section 1983 does not provide a distinct cause of action based on inchoate unconstitutional action, see Hampton v. Hanrahan. 600 F.2d 600, 622 (7th Cir. 1979) ("mere proof of a conspiracy is insufficient to establish a section 1983 claim"), rev'd with respect to attorney's fees. 446 U.S. 754 (1980). Rather, proof of such concerted action can establish that a challenged deprivation of rights was under the "color of law," and § 1983 conspiracy liability is a subset of the broader principle - familiar in civil law that an individual may be held to answer for the harm caused by wrongful conduct in which he was a wilful participant. See id. at 627 (liability for "joint action" and "conspiracy" both derive from the rule that "when persons 'who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit are equally liable with him'") (quoting W. PROSSER, TORTS (4th ed. 1971) at 292). Thus, proof of conspiracy is"[o]ne way to establish joint action." Collins v. Womancare. 878 F.2d 1145, 1154 (9lh Cir. 1989) - it is not a mandatory prerequisite to liability. Accord Lugar, 457 U.S. at 943 n* (Burger, C.J., dissenting) (noting that Court had found private actor liable under joint participation theory without any "allegation of collusion or conspiracy with state actors")-

Moreover, even in cases where § 1983 liability is premised exclusively on conspiracy allegations, there is no need to prove that there was an overt agreement, see LeBlanc-Sternbera v. Fletcher. 67 F.3d 412, 427 (2nd Cir. 1995) ("tacit understanding" suffices), nor need the agreement's existence be proved through direct evidence, see Hampton. 600 F.2d at 627; Adickes. 398 U.S. at 155 (reversing summary judgment notwithstanding plaintiffs conceded lack of knowledge "of any communication between [the allegedly conspiring parties]"), nor need the plaintiff show that the various participants "agreed on the details of the conspiratorial scheme or even know who the other conspirators are" so long as they "understood] the general objectives of the scheme, acceptfed] them, and agreefd], either explicitly or implicitly, to do [their] part to further them," Jones v. City of Chicago. 856 F.2d 985, 992 (7th Cir. 1988). Rather, the cases make clear that existence of an "understanding" suffices - one which may be inferred from the "sequence of events," Adickes. 398 U.S. at 157; see also Kunik v. Racine County. 946 F.2d 1574, 1580 (7th Cir. 1991) ("the agreement need not be overt, but if not, the acts alleged must be sufficient to raise an inference of mutual understanding"); Hampton. 600 F.2d at 627 (holding that § 1983 conspiracy liability can be based on defendant's lending "'aid or encouragement to the wrongdoer, or ratifying] and adoptfing] his acts'") (quoting W. PROSSER, supra): Pangbum v. Culbertson. 200 F.3d 65, 72 (2nd Cir. 1999) (noting that "[§ 1983 conspiracies are by their very nature secretive operations, and may have to be proven by circumstantial, rather than direct, evidence") (internal quotation omitted).4
4"The question whether an agreement exists should not be taken from the jury in a civil conspiracy case so long as there is a possibility that the jury can 'infer from the circumstances that the alleged conspirators . . . reached an understanding' to achieve the conspiracy's objectives." Hampton. 600 F.2d at 621 (quoting Adickes. 398 U.S. at 158-59); cf. Abbott v. Latshaw. 164 F.3d 141 (3rd Cir. 1998) (at the motion to dismiss stage, "no more" than compliance with "the standards
10

* * *
Defendants' contentions concerning who may "properly"' be sued for violating Mr. Louima's civil rights, Memorandum at 3, and what federal civil rights laws "contemplate."" Memorandum at 14, must be evaluated in light of the text, structure, and purposes of those statutory provisions. See generally Price. 383 at 801 (courts must accord Reconstruction Era civil rights statutes "a sweep as broad as [their] language"); Great American S & L v. Novotnv. 442 U.S. 366, 381 (1979) (Powell, J., concurring) (construction of those statutes must take account of the "the purpose, history, and common understanding" of their terms).
As the Supreme Court has explained, the principal concern of the statute now codified at 42 -U.&€r §f+9S3, 1985 & 1986 - the Ku Klux Klan Act of 1871 - was the inability and unwillingness of governments in the southern states to secure the federal rights guaranteed newly freed African Americans and their political allies, in the face of organized efforts (by the Klan and others) to subvert the administration of justice and interfere with federal elections, federal courts, and federal officials seeking to subject wrongdoers to the rule of law. See Briscoe v. LaHye, 460 U.S. 325 (1983).
In Briscoe. the Court thus described the congressional debates leading up to the enactment of the 1871 Act:
Hours of oratory were devoted to the details of Klan outrages - arson, robbery, whippings, shootings, and murders . . . .These acts of lawlessness went unpunished, legislators asserted, because Klan members and sympathizers controlled or influenced the administration of state criminal justice. In particular, it was contended that Klan members were obligated, by virtue of their membership in the organization, to protect fellow members who were charged with criminal activity. They had a duty to offer themselves for service on grand
of notice pleading" is required of a plaintiff alleging a § 1983 conspiracy). 11

and petit juries and to violate their juror's oath by refusing to indict or convict regardless of the strength of the evidence. They were also bound to appear as witnesses, and again to violate their oaths by committing perjury, if necessary, to exculpate their Klan colleagues.5
It is clear from the legislative debates that, in the view of the Act's sponsors, the victims of Klan outrages were deprived of "equal protection of the laws if the perpetrators systematically went unpunished."6
460 U.S. at 338.
B. The Rule 12(b)(6) Standard
A motion to dismiss should be granted only if it appears "beyond doubt" that there is "no
set of factual circumstances" that would enable the plaintiff to sustain a cause of action.
Because the Federal Rules do not require the plaintiff to plead evidence, see Fed. R. Civ. P. 8(a).
and because the complaint necessarily is filed without the benefit of discovery', a court evaluating
a Rule 12(b)(6) motion must accept as true the allegations of the complaint and afford the
plaintiff the benefit of all reasonable inferences from those factual allegations. Hernandez v.
Couehlin. 18 F.3d 133, 136 (2nd ChO. cert, denied. 513 U.S. 836 (1994) Cf Fed. R. Civ. P.
5The Supreme Court here included a footnote noting that the Act's supporters in Congress had repeatedly referred to testimony before an investigatory committee of two former Klan members, who described a Klan oath binding its members to commit perjury. See 460 U.S. at 337 n. 18 (citing Cong.Globe, 42d Cong., 1st Sess. 152,158,173,201,320-321,322,340,437,439,443-444,457, 458. 503, 516, 518, 653, 654, 687 (1871)).
6In Briscoe. the Court ultimately held that § 1983 did not abrogate traditional absolute immunity from civil liability based on perjured statements presented by witnesses in criminal trials. In explaining this holding (which it expressly limited to in-court testimony offered at trial), the Court stressed that the congressional deliberations had been concerned virtually exclusively with the problem of false exculpatory testimony - not the use of perjured testimony to wrongfully convict and noted the importance of another provision of the same statute, now codified at § 1985, in combating conspiracies to commit perjury. See also Crespo v. New York City Police Comm'r. 930 F. Supp. 109. 117-18 (S.D.N.Y. 1996) CBriscoe immunity not available to police witnesses who perjure themselves in initiating baseless prosecutions).
12

1 l(b)(3) (factual allegations of complaint either have "evidentiary support" or are "reasonably likely" to be supported with the aid of discovery'); see also Bernheim v. Litt. 79 F.3d 318. 321 (2nd Cir. 1996) (special solicitude is owed complaint "where the plaintiff alleges civil rights violations"). With narrow exceptions (for example, matters subject to judicial notice), see, e.g.. Samuels v. Air Transp. Local 504.. 992 F.2d 12,15 (2nd Cir. 1993), the court may not consider matters outside the complaint's four corners, and the defendant may not contest the truth of any of the allegations. See Ricciuti v. New York Citv Trans. Auth.. 941 F.2d 119 (2nd Cir. 1991) (in deciding Rule 12(b)(6) motion, it is inappropriate to consider whether documents referenced in pleading would satisfy standards of admissibility under Evidence Rules).
While the Federal Rules do not permit the plaintiff to rest on conclusory allegations, the level of specificity they require is keyed to that necessary to give the defendant a fair opportunity to frame a responsive pleading. Ricciuti. 941 F.2d at 123 (Rule 8(a)(2) "is designed to permit the defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery"). To insist upon greater factual specificity for particular categories of claims or complaints is incompatible with the purpose and plain meaning of Federal Rules 8 and 9, which enumerate expressly (and exhaustively) the matters that must be pleaded with particularity, see Leatherman v. Tarrant County. 507 U.S. 163 (1993) - and with Circuit precedent, which instructs that civil rights complaints be liberally construed. See generally Conlev v. Gibson, 335 U.S. 41, 47 (1955) (reversing dismissal of complaint that failed to "set forth specific facts to support its general allegations of discrimination"); Pisello v. Town ofBrookhaven. 933 F. Supp. 202,211 (E.D.N.Y. 1996) (in case "where it is not reasonable for the Court to expect that the plaintiff be familiar with the full range of the defendant [']s practices
13

under challenge, . . . dispositive motions with respect to section 1983 cLums are better left for summary judgment").7 II. The PBA Is Legally Responsible For Its Role in Denying Mr. Louima's Federal Civil
Rights A. The Complaint States a Claim Under Section 1983 Although there can be no serious disagreement that Mr. Louima has pleaded - and suffered - deprivations of his federal civil rights, see Memorandum at 1.3: see also Bruder. 103 F. Supp. 2d at 178 (jury necessarily found that actions were "under color of law"), the PBA insists that neither its active role in creating, maintaining and fostering a code of silence nor its energetic use of intimidation and perjury in Mr. Louima's case could give rise to § 1983 liability. According to Defendants, even when it is accepted that: (1) knowledge that the PBA can be relied upon to thwart investigations emboldens violent police officers who commit acts of criminal brutality and (2) the willingness of the PBA to resort to lies and intimidation in fact (a) prevents the truth from surfacing in such cases; and (b) prevents honestly inclined police officers from carrying out their duty and from coming to the aid of innocent civilians who are under police attack or in need of medical attention; anchhat (3) the PBA, knowing that Mr. Louima had in fact been beaten and sexually brutalized and remained handcuffed to his hospital bed as a prisoner, spent its energies devising, in conjunction with his tormentors, a campaign aimed at publicly humiliating him and derailing his efforts to seek redress, such involvement would be too "attenuated" to give rise to a civil rights claim. Although the Memorandum attempts to support
'Although some Second Circuit decisions have been read as imposing a heightened pleading standard in certain classes of § 1983 cases, see Dwares. those requirements, as several recent decisions have recognized, do not survive the Supreme Court's decision in Leatherman. SeePisello. 931 F. Supp. at 210.
14

these counterintuitive assertions with (sometimes) plausible-sounding arguments concerning ihe elements of Section 1983 liability - and with wholly implausible efforts to disparage the complaint's hundreds of factual allegations as "bare" and nonspecific - the obstacles to recovery that the PBA would have the Court insert into the statute is entirely irreconcilable with governing law.
1. The PBA May Be Held Jointly Liable Under Section 1983 Based On Its Role in Depriving Mr. Louima of His Rights
At the outset, to the extent that the Memorandum's assertion that section 1983 responsibility for the injuries to Mr. Louima "lie[s] with the City, the police department, and the individual officer [sic] " id at 3, is meant to suggest that these actors' liability would somehow foreclose holding the PBA accountable, it plainly misapprehends the law. Responsibility under § 1983 is not an either/or proposition, whereby a court must decide whether one entity or another is the wrongdoer. It is not at all uncommon for a plaintiff to have viable section 1983 claims against multiple defendants, see Lusbv v. T.G. & Y Stores. Inc.. 749 F.2d 1423 (10th Cir. 1984) (upholding liability against private actor and municipality who acted in concert), cert, granted and vacated on other grounds sub nom. City of Lawton v. Lusbv. 474 U.S. 805 (19851 aff d on reconsideration. 796 F.2d 1307 (10th Cir. 1986); Fiacco.783 F.2d 319 (upholding liability against both municipality and individual officers): cf. Dennis v. Sparks. 449 U.S. 24 (1980) (affirming that private individual who conspired with state actor may be liable, notwithstanding latter's entitlement to absolute immunity). Indeed, such joint liability is an inescapable consequence of decisions affirming that municipalities, see Monell. supervisors, see Wright v. Smith. 21 F.3d 496, 502 (2nd Cir. 1994), private actors, Adickes. and co-conspirators, id, can be held
15

responsible for government employees' unconstitutional actions. Here, in light of the nature of his allegations, the fact that Mr. Louima has such strong § 1983 claims against individual officers and the City can only strengthen - and obviously does not extinguish - his claim against the PBA. Cf Citv of Los Angeles v. Heller. 475 U.S. 796 (1986) (per curianV) (failure to prove case against individual defendant may, under certain circumstances, limit municipal liability).
2. The Complaint Alleges PBA Involvement Under "Color of Law" A centerpiece of the?Defendants' Memorandum is that the PBA actions described in the complaint - which include (1) joining with the City to create a custom whereby officers" silence regarding unsolved crimes ofviolence against civilians goes unpunished and honesty concerning brutal civil rights violations is vilified and; (2) using unique powers delegated by the City to promote cover-ups of violent criminal acts to and punish those who do not hew to the conspiratorial plan; and (3) acting affirmatively, in conjunction with police officers, to harm Mr. Louima and impede his ability to obtain full redress - could not have been taken under "color of law." Although that assertion has a surface plausibility - if only because the PBA is not a governmental entity, but see infra — it does not survive collision with decades of Supreme Court precedent settling that "to act 'under color' of state law does not require that the accused be an officer of the State," Adickes. 398 U.S. at 152, and delineating the circumstances supporting private party liability under § 1983. As noted above, the Adickes decision held the "color of law'" requirement satisfied either when a private party is shown to be a "wilful participant in_ joint action" violative of the Constitution, 398 U.S. at 152, or when that party acts unilaterally. but pursuant to an unconstitutional government-enforced custom, id at 171, and other decisions
16

have affirmed the availability of a § 1983 remedy when the misconduct of a private actor is made
possible "because the wrongdoer is clothed with the authority of state law." Kern v. Citv of
Rochester. 93 F.3d 38,43 (2nd Cir. 1996) (citations omitted), or where the "the injury caused is
aggravated in a unique way by the incidents of governmental authority."' Edmonson v. Leesville
Concrete Co. Inc.. 500 U.S. 614, 621 (1991). Mr. Louima's complaint states § 1983 claims
against the PBA on each of these theories. See generally Anava. 195 F.3d at 596 ("If any one of
the tests indicates a party is a state actor, that alone is sufficient to find the party a state actor").
a. Section 1983 Liability Does Not Depend On Proof That The PBA Is a Governmental Entity
The PBA begins with a desultory argument that the "color of law" determination here is
controlled by a quarter-century old decision of the Southern District. Wright v. PBA. 1975 WL
215 (S.D.N.Y. July 23,1975). Because the court in that case held that the PBA would not liable
as a "state actor," the PBA suggests, the same outcome must obtain here. See Memorandum at
10; see also id. at 9 (citing Williams v. Citv of New York Dep't of Corrections. 1998 WL
160988, *2 (E.D.N.Y. Mar. 30, 1998) for the proposition that a § 1983 "plaintiff must allege
facts that would establish that a governmental entity deprived her of a right secured bv law"
(emphasis supplied)). This line of argument amounts to little more than wishful thinking on Defendants" part.8
8 The case cited by the PBA, Williams, in no way considered the circumstances under which a non-governmental entity may be held to act "under color of law." Indeed, there was no dispute in that case that the defendant, the City Corrections Department was a state actor; the dispositive issue concerned whether plaintiff had alleged the deprivation of a federal right, and the Court mled that she had not. As explained below, the general rule Defendants seem to cite Williams as announcing is neither correct - it conflicts both with venerable Supreme Court authority holding that private entities can act under color of law and with the recognition, on the same page of the Memorandum, that § 1983 liability may be imposed either on persons "who either are state actors or are acting under
17

However the issue was resolved on the facts of the Wright case, the proper question for § 1983 purposes is not whether a private entity such as the PBA is or is not a "state actor." but rather whether the particular practices and actions giving rise to the complaint were taken "under color of law." There is no contention in this case that the PBA is a governmental entity. Le.. one whose every act is presumptively "under color of law," Lugar. 457 U.S. at 935. and it is no more legally significant that the PBA was found, in another case, not to have been acting under color of law. than it would have been had there been prior decisions (as there might well have) placing particular actions of the private defendants in Adickes. Lugar. or Leesville beyond the reach of section 1983.
In fact, in Hughes v. PBA. the Second Circuit upheld the district court's decision to entertain a section 1983 claim based on allegations of "joint activity" between the PBA and the NYPD - even as it noted that the district court had recognized, correctly, that the union "was not a state actor." See 854 F.2d. at 880. Thus, if this Court were to take the all-or-nothing approach that Defendants seem to embrace, it would be the Court of Appeals' decision in Hushes, rather than Wright, that necessarily would control. United States ex rel. Schnitzler v. Follette. 406 F.2d 319, 322 (2nd Cir. 1969^: cf. generally West v. Atkins. 482 U.S. 42, 56 (1989) ("It is [defendant's] function while working for the State, n o t . . . the fact that he may be employed by others to perform similar duties, that determines whether he is acting under color of state law").
Nor do the decisions in Kern v. Citv of Rochester and Jackson v. Temple Univ.. 731 F.2d
color of law" Memorandum at 9 (emphasis supplied) - nor would the rule be violated here: Mr. Louima does allege that "a governmental entity deprived [him]" of his rights; the PBA's real objection is to his unwillingness to limit his claims to those among the responsible actors that were governmental entities or employees.
18

931 (3rd Cir. 1983) (discussed in the Memorandum at 11-12), help the PBA. There is no suggestion here that the mere fact that a union's leaders and agents are simultaneously government employees would make the union a state actor in its dealings with its own members, or that actions which do not involve PBA agents' "abusing the positions given [them] by the state" would nonetheless be "under color of law." Here, unlike in Jackson, there is no room for arguing that a constitutional violation under color of law did not occur (the only question, as even the PBA acknowledges, is whether Defendants are legally accountable based on their conduct), and the complaint describes PBA misconduct - taken pursuant to a widely understood municipal custom, compare Kern. 93 F.3d at 44 - that necessarily involved exercise of power conferred by state law and policy.9
Jackson is even farther afield. The action at issue in that case was the defendant union's allegedly "unconstitutional" failure to pursue plaintiff's grievance - there was not even an allegation that plaintiffs public "[ejmployer was in any way involved in the Union's decision not to proceed to arbitration," id. at 933 — and the Third Circuit affirmed exclusively on the ground that no deprivation had been alleged. Indeed, the appellate court there followed the district court in assuming for purposes of its decision that state action somehow was present, id. Cf. Polk Country v. Dodson. 454 U.S. 312 (1981) (holding that actions taken by government-paid
9The fact pattern of Kern might be more analogous if the plaintiff firefighter had shown that the union president responded to Kern's refusal to accept his sexual advances by persuading union member-firefighters not to protect Kern were she endangered while in the line of duty and perhaps even more analogous if he instructed that the firefighters refuse to battle any fire that might occur at her house. Cf Pisello. 933 F. Supp. at 207 (noting that defendant municipality was alleged to have "arbitrarily refused to act" on plaintiffs applications to rebuild his real estate business after destruction by suspiciously motivated fire). Even that hypothetical case would lack the elements of longstanding municipal involvement that characterize the practices and conduct here.
19

criminal defense counsel, in connection with adversarial proceeding against the State, are not •'fairly attributable to the State").10
b. The Color of Law Requirement Is Satisfied By The PBA's Wilful Joint Participation
Although the Memorandum does not press very hard the suggestion that the PBA's status
as non-governmental entity actually settles the "color of law" question, its more sustained
argument - that the complaint's supposed failure to allege with specificity the "time and place"
of a conspiratorial agreement between the PBA and the City forecloses § 1983 liability,
Memorandum at 11-13 - is no less fatuous. This argument simply ignores decades of settled law
recognizing the multiple ways by which a private party can act "under color of law." see Anaya.
precedent that refutes the notion that proof of the sort of discrete, comprehensive "agreement"
which the Memorandum demands is the sine qua non of private party liability under section
1983.
The Supreme Court and the Courts of Appeals repeatedly have held private actors
accountable under § 1983 without proof of the sort of formal agreement that the Memorandum
'"Although the PBA makes much of the complaint's contention that its liability may be established under respondeat superior principles, see Memorandum at 17 (citing *I84 of the complaint), that same paragraph also alleges that the PBA agents' acts were performed pursuant to their authority under the union - obviating any need to decide whether any sort of vicarious liability may be imposed. As the remainder of the complaint makes clear, although the actions of Immitt and Lee - and the post-torture conduct of Wiese - are directly attributable to the PBA (because they were carrying out union policy), the complaint does not allege that Defendants should be held liable for the torture on the theory that the individual officers were acting as agents of the PBA. To the contrary, the PBA' legal responsibility for Mr. Louima's physical abuse derivesjiot from the fact that the individuals who attacked him were union members or agents, but rather from the fact that the union's policies and customs, evincing hostility to the punishment of even the most wrong-doing police officers, heightened the danger that such violent police actions occur. See infra (discussing law governing responsibility based on deliberate indifference).
20

treats as indispensable. In Leesville and Lugar. the Court explicitly upheld liability based on a private actor's joint participation in unconstitutional conduct (the defendant in Lugar obtained a writ of attachment from a state court clerk, initiating a procedure found to violate the Due Process Clause), notwithstanding the absence of any "allegation of collusion or conspiracy with state actors," 457 U.S. at 943 at n.* (Burger, C.J., dissenting), and in Lusbv the Court of Appeals for the Tenth Circuit did not demand that plaintiff pinpoint the particular time and place where the municipal authorities and private defendants agreed to implement a custom of arrest without probable cause. Indeed, even in the decision that the PBA has cited, Austin v. Paramount Parks. Inc.. 195 F.3d 715 (4th Cir. 1999), there is no suggestion that when a plaintiff proves that private actors and government officials are longstanding participants in a custom of unconstitutional conduct he must further allege a formal agreement entered into at a particular time or place. Sge id. at 728 ("a private corporation is liable under § 1983 . . .when an official policy or custom of the corporation causes the alleged deprivation of federal rights"); see also Jackson Lockdown/ MCQ Cases. 568 F. Supp. 869 (C. D. Mich. 1983) (upholding § 1983 claim against prison guards' union, because the union's actions, though opposed by government officials,"were possible only due to the power conferred on the guards by the state").
Indeed, the very nature of municipal liability for "custom" - l e . , a "practice^ . . . so permanent and well settled" as to have the force of law - stands against the idea that a complaint could be dismissed for not stating the time and place at which an "agreement" was entered into. Thus, in Ginsberg v. Healev Car & Truck Leasing. Inc.. 189 F.3d 268,271 (2nd Cir. 1999). the Second Circuit made clear that a section 1983 cause of action lies against a private defendant when the complaint alleges an arrest pursuant to a municipal custom of reflexive acceptance of
21

the defendant's recommendations, a conclusion supported by that Court's earlier opinion in
Dwares. In that case, the Court of Appeals, surveying prior cases involving claims of private §
1983 liability for concerted action, observed that while a private security guard's merely
summoning the police will not suffice to hold the business owner accountable under Section
1983 for a resulting arrest (even if the guard is an off-duty police officer), the defendant will be
liable if there is a custom or understanding that individuals reported by the private party will be
arrested without the arresting officer's undertaking any further independent probable cause
determination. Accord Lusby 749 F.2d at 1432 (upholding private defendant's liability in
Monell case, because municipality maintained a policy that "delegate[d] a nondelegable duty Qjg,
deciding whom to arrest] and facilitates private abuse of criminal charges")." Indeed, even
Adickes. which described a § 1983 conspiracy as involving a "meeting of the minds," 398 U.S. at
158, provides scant support for the notion that a particular time and place of "agreement" must be
alleged with particularity: the Supreme Court reversed summary judgment for the defendant
11 Indeed, it is symptomatic of the "heads we win, tails you lose" quality of the PBA's Memorandum that Mr. Louima is taken to task, see Memorandum at 13 n.3, for pleading that the PB A and City's customs are of long standing. The PBA's arguments that the three-year section 1983 limitations period precludes the complaint's reliance on "acts of conspiracy that allegedly occurred twenty-five years ago" drastically misread the Second Circuit's decision in Pinaud v. County of Suffolk. 52 F.3d 1159 (2nd Cir. 1995). That case did not come close to holding that evidence that a custom more than three years old is somehow irrelevant or illegitimate; it held that, subject to various tolling principles, a plaintiff can not bring a suit based on specific municipal actions (pursuant to the long-running policy) that took place more than three years before filing suit. Although the complaint in this case references practices that go far back in the past (which add force to the systemic claims) the wrongs committed against Mr. Louima took place within the limitations period - and indeed continue. See Ginsberg. 189 F.3d at 271 (considering evidence of how many times conduct had occurred "in the past thirty two years" in determining whether custom or policy existed); Adickes. 398 U.S. at 173 ("the relevant inquiry is whether at the time of the episode there was a longstanding and still prevailing state-enforced custom"); Walker. 974 F.2d at 300 (plaintiff who did ''not expressly allege a history of police perjury . . . should be allowed to pursue discovery in order to determine whether" such a practice existed).
22

notwithstanding the absence of evidence of communication between the private and public actors, on the ground that their "understanding" might still be inferred from "the sequence of events.'" See also LeBlanc-Sternberg. 67 F.3d at 427.'2
These decisions are consistent with the principle that formal conspiracy represents only "one form" of the wilful joint participation in unconstitutional conduct that § 1983 prohibits, See Collins. 878 F.2d at 1154 ; Hampton. 600 F.2d at 627. Indeed, to the extent that civil rights decisions might be read as relying on a less stringent definition of conspiracy than prevails, for example, in the criminal law, the basis for such a distinction would be sound: unlike the criminal law, §1983 does not punish the act of wrongful agreement per se - the § 1983 remedy is available only to those whose rights have been deprived, see Singer. 63 F. 3d at 119 - and there is no legitimate reason why persons who are wilful joint participants in unconstitutional action but cooperate tacitly or pursuant to custom, rather than by express agreement - should be excused from liability. Cf Dennis. 449 U.S. at 27 (affirming decision of lower court concluding that '"that there was no good reason in law, logic, or policy for conferring immunity on private persons who [conspire with governmental actor entitled to official immunity]'"); McHenrv v. Chadwick. 896 F.2d 184, 188 (6th Cir. 1990) (civil liability for officer who stands by while others commit constitutional tort).
1 indeed, relying on the same authority that Defendants cite for the rule that a "plaintiff must provide details of time and place . . .," see Memorandum at 12, the Second Circuit has stated the principle somewhat differently :"while a plaintiff should not plead mere evidence, he should make an effort to provide some 'details of time and place and the alleged effect of the conspiracy* 2A Moore's Federal Practice ffil 8.17[6], at 8-109 to 8-110 (2d ed. 1992)." Dwares. 985 F.2d at 99 (emphasis supplied). Even that less stringent formulation predated the Supreme Court's decision in Leatherman. holding that heightened pleading rules for § 1983 complaints are inconsistent with the Federal Rules.
23

c. The Complaint Adequately Pleads Joint Participation Because the PBA does not fully acknowledge that wilful joint participation in unconstitutional governmental conduct can give rise to § 1983 liability, the Memorandum does not even attempt to carry its Rule 12(b)(6) burden of showing that under "no set of facts" could the complaint's allegations state a claim on that theory. But it is apparent the PBA could not have met that burden had it tried. First, as to the actions taken after the initial assault on Mr. Louima, the PBA's joint participation with state actors - police officers acting under color of law - is pleaded in undeniably ample and specific detail. See, e.g.. flf 69-84, 94,106-110, 117, 120-22, 130-33. Indeed, these allegations would appear to meet even the supercharged, heightened pleading standards that the PBA asks the Court to impose. With respect Counts XIV and XV, concerning the code of silence, whatever the merits of the contention that the web of customs and policies pursued jointly with the City over the course of many years is too "attenuated" from Mr. Louima's physical injuries to give rise to section 1983 liability, see infra, there can be no disagreement that the policies-and customs described in the complaint are plainly "law, policy, custom or usage" within the meaning of section 1983. see Jeffes v. Barnes. 208 F.3d 49, 62 (2nd Cir. 2000) (police code of silence may give rise to Monell liability); Sharp v. City of Houston. 164 F.3d 923, 935, 936 (5th Cir. 1999) (affirming judgment against city based on code of silence): White-Ruiz v. Citv of New York. 983 F. Supp. 365 (S.D.N.Y. 1997) (finding City liable under Monell principles for code of silence); c£ United States v. Bruder. 2000 WL 290269 (E.D.N.Y. Feb. 5,2000) *4 (holding evidence of defendant Schwarrs prior coverup activities admissible under Federal Rules to show "his commitment to
24

ft
an unwritten . . . 'code of silence'"). Nor does the complaint skimp in its description of the PBA's active, wilful involvement in developing, furthering and implementing the challenged customs and practices. See, e.g.. ffl| 15-20 (joint role of City and PBA in promoting an atmosphere "in which the very worst police officers feel assured that evidence of misdeeds depriving citizens of the civil rights, no matter how awful, will be hidden by PBA representatives) 1flJ155-57 (noting joint role of PBA and City in misapplying "48-hour rule") "'11164, 169 (noting Mollen Commission's conclusion that PBA puts "immense pressure" on honest officers to maintain silence and "acts as a shelter and protector of the corrupt cop. rather than as a guardian of the interests" of honest police officers); ffl[ 170-71 (noting past instances of PBA misconduct), 1J172 (PBA "manipulate[s] 48-hour rule and makes improper use of... spurious .. .privilege to orchestrate cover-ups among co-conspirators and identify and silence police witnesses who would otherwise give honest testimony").
Rather than address itself to the complaint's actual and extensive factual allegations, the PBA devotes more than a page of its Memorandum to a recitation of decisions stating that '"a bare allegation of a conspiracy between private and state entities is insufficient to bring the private entity within Section 1983," Memorandum at 12 (quoting, inter alia. Stasman v. Rvan. 176 F.3d 986,10002 (7lh Cir. 1999)); that complaints must go beyond "conclusory allegations"; and that they must include "with some degree of particularity the overt acts which defendants engaged in." Id. (quoting Serbalik v. Grav). But these unexceptionable rules simply have no application to this complaint, which includes scores of paragraphs describing specific overt acts committed by the PBA, see, e.g.. 1fl4 (PBA "disparaged and intimidated those officers who discharged their moral legal and moral duty" to report to investigators); 1171 (PBA agents
25

suppressed information); ^ 59 (PBA pressured defendant Rosario); ^|75 (describing roll call appearances by Immitt); 116 (intimidation of witnesses by Immitt and Lee): *J72, 122, 131 (PBA sought to humiliate, defame Mr. Louima and to deter him from testifying); *;83 (describing conspiratorial meetings and phone calls); ^[81 (describing PBA treatment of witnesses as "suspects"); ^|78 (alleging grand jury perjury by defendant Immitt); ^ 132 (PBA "continues to deter and discourage .. .witnesses from telling the truth"). In the face of this specificity. Defendants" own broad assertions that the complaint's allegations "fall far shon of stating a viable claim," id at 13, have an oddly hollow ring. See also id. at 8 (citing decisions allowing courts to disregard factual allegations when they are "internally inconsistent" or "contradicted by documents incorporated in complaint" - without ever suggesting that anv factual allegation in Mr. Louima's complaint fall into either category!13
To the extent that the Memorandum does advance any specific basis for dismissing counts XIV and XV, it is the complaint's supposed failure to "particularize the overt acts allegedly taken by the PBA" or "even [to] attempt" to identify a specific 'agreement' between the PBA and the City, "let alone"specify the particular "time and place" where agreement was reached. Memorandum at 13. As for the overt acts, the paragraphs just cited speak for themselves - all the more so in light of the Second Circuit's admonition that the specificity required under the Federal Rules is not an end unto itself, but rather must be sufficient to alert the PBA of the nature of the claim against which it must defend. Ricciuti. 941 F.2d at 123.
And whether or not it is "as replete with factual allegations as the [PBA] might prefer."
l3As noted above, although Count XV might be "conclusory" in the literal sense that it does not actually re-plead the necessary factual allegations, which appear in the body of the complaint, the Federal Rules encourage that way of drafting complaints. See. Fed. R. Civ. P. 10(c).
26

Harvev v. Treder. 1987 WL 47371 *6 (E.D.N.Y. 1987) it is hard to see how a fair-minded reader of the complaint - which devotes more than thirty paragraphs specifically setting out the respective roles of the PBA and the City in jointly creating and maintaining the "blue wall" could find, as the PBA purports to, that it does not even allege a "nexus" between those two defendants, Memorandum at 13.

If the appropriate question is asked, i^e., whether, at this stage - before the

commencement of discovery - the complaint (1) includes sufficient allegations from which joint

participation by the City and PBA could be inferred and (2) makes those allegations with

specificity sufficient for Defendants to formulate their responsive pleading, the fate of

Defendants' motion is sealed. Notwithstanding the PBA's placing the words ''code of silence"

in quotation marks, any claim by Defendants not tO/be^Ble^osrasp from the complaint what role

Mr. Louima alleges the PBA played is not well taken. Among other things, the complaint

references independe;

ions that a code of silence exists and that responsibility

for it resides, jointly, withthe City (for toleraji

ding its inconsistency with the

—~~^~~^

rule of law) and the PBA (for projnotingjQ^ and, it alleges, among other things, the role played

both by the jointly agreed-to "48 hour-rule." See Messman v. Hemke. 133 F.3d 1042, 1045 n.2 (7Ih Cir. 1997) (collective bargaining agreejmjeiitpix»yisioj^c^i_^ve rise to joint § 1983 liability),

by the City's and the PBA's mutual understanding of how the rule should apply in practice (i.e..

^extending it to criminal, as opposed to merely adminisfrative investigations and allowing the

union tajdecide whom to denominate as "witnesses" and "suspects," for purposes of the rule's

protections), and by the City's acquiescence in certain officers' (PBA delegates) disregarding

27

Circuit, the PBA, as a private party, could not be held accountable based solely on its role as "wilful participant" in government actors' unconstitutional conduct, the factual allegations of the complaint would not permit dismissal for failure to allege PBA action under color of law. First and foremost, the complaint identifies the PBA as occupying a pivotal role in a quintessential state function: the investigation of violent crime. See Dwares (when government delegates quintessential governmental responsibility to private party, that party acts under color of law); accord Lusbv: cf. Richardson v. McKnieht. 521 U.S. 399 (1997) (upholding denial of qualified immunity to privately employed prison guards sued under § 1983). It is by no means ordinary to allow a private party to help decide which individuals suspected or believed to have witnessed violent offenses will be interviewed by law enforcement authorities investigating the crime (or to give the party the power to prevent an interview from taking place, by labeling as a "witness" someone who otherwise might not meet the investigator's understanding of that term), see 1117 (noting that other jurisdictions show no similar solicitude for police officers suspected of violent crime), and it is all the more so given the PBA's avowed belief that orchestrating cover-ups and intimidating witnesses is a part of its job description as collective bargaining agent. See Memorandum at 11; compare Paramount. 195 F.3d at 730 (noting lack of "evidence that... police officers routinely consulted [private defendant] or obtained his approval concerning impending arrests").
Second, the PBA's agents - including the individual defendants in this case - are themselves police officers, charged by law with apprehending violent criminals (including violent police officers) and bringing them to justice - and endowed by law with unique powers in order to do so. See t 5 6 (noting official policy that "fa]ll members of the service have an
29

absolute duty to report... serious misconduct of which they become aware") (emphasis added). Although the Memorandum purports not even to perceive a conflict in the dual role of sworn peace officer and obstructor of justice - by simply insisting that, even when they wear the uniform of the NYPD, PBA agents' obligations to the wrongdoing member are always paramount, the complaint makes clear that Defendants maximize, unecessarily and for improper purposes, the extent to which these two roles become "blurred." Memorandum at 2. 14. Cf. Lusbv. 749 F.2d at 1429 n.2 (noting off-duty police officers "confusion of his private and public roles" in holding him - and his private employer - liable under § 1983).
In the first place - and as will be further explained below - the PBA's understanding of its officer/agents' competing responsibilities is fundamentally wrong, see In re Grand Jury Subpoenas Dated January 20. 1998. 995 F. Supp. 332, 336 (E.D.N.Y. 1998), and under no conceivable notion of union privilege would an employee-representative be authorized - let alone "duty-bound," Memorandum at 16 - to intimidate witnesses and orchestrate cover-ups, whether or not he does so on behalf of his "client." But for "color of law" purposes, the significant fact is the extent to which the complaint describes the PBA's using its agents' employment as police officers to accomplish its improper organizational objectives. Not only do PBA actions take place in ways that are only possible by virtue of the fact that Defendants' agents are themselves police officers, but Defendants accomplish their objectives largely by a unique ability to persuade government actors - police officers - not to do their legal duties. See Waeenmann v. Adams. S29 F.2d 196,211 (lsl Cir. 1987) (upholding § 1983 verdict against private defendant because he "possessed and exerted influence over the . . . police, and conspired with them to have [plaintiff] arrested"); see also Dwares. 985 F.2d at 98 (it is state action when police specifically decline to
30

provide protection to an individual for the purpose of allowing private party's wrongful conduct to succeed). Indeed, to the extent that the PBA's ultimate threat against an officer contemplating cooperating with a misconduct investigation is that his or her partner - and fellow union member - will not respond to a distress call while they are on duty — the PBA exercises leverage that is uniquely bound up with state authority. Cf. White-Ruiz. 983 F. Supp..at 383 (noting that officers refused to assist plaintiff in "potentially dangerous situation" in retaliation for her having breached the code of silence).
The events of this case supply an example of the myriad ways in which the PBA accomplishes its own purposes under guise of law. Although there is no claim that Officers Volpe, Schwarz, Bruder, and Wiese were acting as PBA members at the moment they were beating or torturing Mr. Louima, it is abundantly clear that Wiese quickly assumed the role of PBA delegate, accompanying Volpe to the hospital on the night of August 9 when he himself was not injured, see Attachment A (Tr. 837-38, Burns),15 and Defendant Schwarz himself testified that telephone calls made to defendant Abbate and others on August 11 - while Mr. Louima continued to be treated as a perpetrator, rather than a victim of crime - were made by Wiese, in his capacity as PBA delegate. See id. (Tr. 1820-23, Schwarz) ("Tommy was a delegate and as a delegate that is part of his responsibilities"). Compare Complaint 1J71 ("defendant PBA quickly became involved in the conspiracy") with Memorandum at 2 (asserting that complaint
l5Attachment A contains transcripts of testimony at the (second) federal criminal civil rights trial of Defendants Wiese, Bruder, and Schwarz. Although the facts and testimony included are not necessary to state a claim - and need not have been pleaded with specificity in the complaint - such material is a proper subject of judicial notice, and the Court accordingly has discretion to consider it in evaluating the merits of the PBA's claim that "no set of facts" exists that could support its involvement before August 13. Cf. People v. Rosenberg. 160 A.D.2d 327 (Is1 Dep't 1990).
31

does not allege PBA involvement until August 13 meeting).16
e. The PBA Actions Are Under "Color of... Custom or Usage"
Finally, the PBA, no less than the store owner in Adickes. may fairly be held accountable under § 1983 for having acted pursuant to a State-enforced custom of unconstitutional behavior. Even if the PBA were not a wilful, joint builder of the "blue wall" - which it is - the complaint plainly states that New York police intentionally tolerate violence or threats of violence toward those who violated the practice of maintaining silence concerning police brutality. When these unconstitutional governmental customs are as pervasive as they are properly alleged to be here, private actors who avail themselves of them, Adickes teaches, may be held to be acting under "color of law."
3. Under Settled Law, The PBA's Involvement Is "Personal"
No more tenable than their arguments about the "color of law" requirement are Defendants' assertions that the link between the code of silence and the actions of the police officers is inadequate as a matter of law to hold the PBA accountable for the harm those officers inflicted. Because the PBA and its agents were not present during the physical abuse of Mr. Louima. but c£ f26d. (noting that defendant Wiese was, at the relevant time, a PBA delegate), and did not learn of what had been done to him until (soon) afterward, the Defendants insist,
l6Indeed, Defendants' repeated assertions that the PBA's involvement did not begin until the day Mr. Louima's custody ended, August 13,not only misread the complaint, they ignore the sworn testimony of defendant Immitt- a high-ranking PBA official - that he first heard of an incident from Wiese - on August 11,at a time when Mr. Louima remained under arrest, Attachment A (Tr. 965. Immitt); see also id. (Tr. 966-67) (testifying that meeting in 70lh precinct basement occurred on either August 12 or 13).
32

iegal responsibility may not extend beyond the individual officers (or. as the PBA would have it. "officerj') - and the City, which undertook to hire and train those individuals. Memorandum at 3. Defendants present this argument in three guises: (1) that the PBA is being held vicariously liable for the conduct of its members, rather than based on its own involvement; (2) that the code of silence described in the complaint cannot be the "proximate cause" of the injuries to Mr. Louima (because, Defendants say, the climate of lawlessness fostered by the PBA and the City merely "permitted, rather than caused" the individual officers' violent assaults); and (3) that the PBA. as a labor union and collective bargaining agent, owed no duty to Mr. Louima or any other citizen of New York to refrain from the practices described in the complaint.
At the outset - and despite the skepticism that the PBA attempts to convey by use of quotation marks - the complaint alleges with unquestionably sufficient particularity the existence of a code of silence, and the suggestion that "Plaintiffs here do not attempt to relate the PBA's wrongful practices to plaintiffs' injuries," Memorandum at 21, is especially perplexing. Scores of paragraphs of the complaint reference trial testimony and independent findings attesting to the existence and operation of the "blue wall" - and to the PBA's role in maintaining it.
And any burden on Mr. Louima's part to allege a "relation" between this custom and his injury arguably is satisfied by this single paragraph of his complaint: / - ~ - N After the torture, defendant Volpe displayed the stick to other police officers at
the precinct and bragged to them about what he had done.
1J47. It is unimaginable that anyone but a New York City police officer fully versed in the code of silence would do what Volpe did - boast of having committed a barbaric criminal act and brandish the inculpatory evidence for all to see - to an audience of on-dutv New York Police
33

Officers inside a precinct house, and, as the complaint describes, Volpe's confidence in the

code's potency proved not to have been misplaced. Not a single one of those officers who

witnessed this depraved display came forward promptly to implicate him — as legal duty (not to

i

mention human decency) obliged them to, see 1fl[55,56 - and even officers who had no personal

connection to the 70th precinct or the individual defendants understood that their role was to lie

on behalf of the culpable officers to investigatory authorities, ^ge ffl 49,57-58 (describing

conduct giving rise to criminal convictions of defendants Rosario and Aleman). See Kibbe v. Citv of Springfield. 777 F.2d 801, 805-6 (1st Cir. 1985) (upholding municipal liability for

brutality, because participation of numerous officers "is more likely to reflect the operating

procedures of the police department"), cert, dismissed. 480 U.S. 257 (1987). Nor are Defendants

on more solid ground when they contend that the complaint insufficiently pleads PBA

involvement in and responsibility for the code of silence. The complaint explains in considerable

detail how the PBA, both in the past and in this case, has taken the lead role in assuring that

guilty officers tell a false but consistent story, ffi[14,15,19,20,71-74,155, and that those

individual officers who might otherwise consider coming forward to perform their duty and tell

the truth are persuaded - if necessary by threats and intimidation - to remain silent. 1fl[l4,75,76,

164.169,170,173. These efforts operate in conjunction with the City's documented dereliction

in investigating and disciplining officers who lie, fail to come forward, or threaten those who do

come forward. Sge.ffl[148-74.

a. The Link Between The Code of Silence And The Injuries Satisfies Section 1983's Causation Requirement

The PBA's assumption that an allegation of "direct involvement in the assault on

34

Louima." id. at 18, is a necessary precondition of PBA liability simply misstates the law. Although section 1983 does not provide for strict or vicarious liability, the Supreme Court, looking to the history and text of the statute - which provides a cause of action against a party who "subjects or causesr-fanother] to subjectf]" a plaintiff to a deprivation of his civil rights repeatedly has held tha| practices and customs exhibiting deliberate indifference to violent deprivations at ground level suffice to establish § 1983 liability for entities and individuals who are not contended to have been "direct participants" in the actual violence. See Monell. 436 U.S.
at 692; cf M. AVERY, K. BLUM & D. RUDOVSKY, POLICE MISCONDUCT LAW & LITIGATION
(1999) § 4-6 ("[m]otions to dismiss or for summary judgment on the ground that the plaintiff has not pleaded or established... 'personal participation' in the acts complained of are not well taken").
As the Southern District explained recently, rejecting a former New York Police Commissioner's arguments that he could not be held accountable for unconstitutional retaliation
i
against an officer because "he was not aware of any retaliation against [her]": "there is no requirement that the supervisor be personally aware of the specific acts of misconduct about which the plaintiff is complaining." White-Ruiz. Rather, the court continued:
The Second Circuit has determined that "personal involvement" may be defined as "(1) direct participation, or. (2) failure to remedy the alleged wrong after learning of it, or. (3) creatioa-o£a^olicyorcustom under which unconstitutional practices ocganraLor (4) gross negligencTin managing subordinates.... fLiiabiluSnnav be imposed when an official has actual or constructive notice of unconstitutional practices and demonstrates "gross negligence" or "deliberate indifference"
White-Ruiz, at *12 (citations omitted) (emphasis supplied); accord Sorlucco v. New York Police
35

Dep't. 91 F.2d 864, 871-72 (2nd Cir. 1992) (plaintiff''did not have to prove that the
Commissioner actively participated in the general discriminatory practice of his department" to
establish municipal liability); Spencer v. Doe. 139 F.3d at 112.
This is the unmistakable import of the Supreme Court's teaching in Monell and its
progeny, and both that Court and the Second Circuit have repeatedly affirmed what the PBA
suggests cannot be the case: that i defendant may be held accountable for violent constitutional
deprivations without itself having "directly" participated in the violence or deprivation of rights.
See Citv of Canton v. Harris. 489 U.S. 378,390 n.10 (1989) (municipality's failure to train
police in use of deadly force can give rise to liability for unconstitutional taking of life). Thus,
in Dodd v. Citv of Norwich, the Second Circuit rejected a defendant's claim that a municipal
policy concerning when police would holster their guns could not have caused the death of a
suspect who tried to grab the revolver from the officer who was arresting him:
The city contends on appeal that the "cause" of Dodd's death was his own voluntary act in lunging for the exposed gun and was not any act or policy of the city. Monell's view of causation is, we think, more encompassing than such a narrow, immediate focus on the cause of the shooting. In adopting its policies a municipality must take into consideration the reasonably foreseeable conduct not only of its own employees but also of those citizens with whom its employees will interact. Basic principles of causation would render the policy a proximate cause of Dodd's death if Dodd's intervening actions were "within the scope of the original risk" and therefore foreseeable. W. Prosser, Handbook of the Law of Torts §§ 44, at 273 (4th ed. 1971).
827 F.2d at 5; see also Ricciuti. 941 F.2d at 12/("evidence that the municipality had notice of
but repeatedly failed to make any meaningful investigation into charges that police officers had
used excessiveJorce in violation of the complainants' civil rights" suffices to hold city liable for
violent acts); Fiaoco. 783 F.2d at 326 ("we reject the notion advanced by the City defendants that
36

a municipality may not be held liable under § 1983 on the basis of a policy of deliberate indifference to the constitutional rights of persons within its domain" that was "demonstrated by the failure of the City defendants to exercise reasonable care in investigating claims of police brutality"); Bielevicz v. Dubinon. 915 F.2d 845, 851 (3rd Cir. 1990) ("cauial link betweenTTa^ •known but uncojiected custom or usage and a specific violation is established if occurrence of the specific violation was made reasonably probable by permitted continuation of the custom"); cf, Jett 491 U.S. at 737 (whether deprivation of rights at issue was caused by defendant's "acquiescence in a long-standing practice or custom which constitutes the 'standard operating procedure' of the local government entity" id "for jury tojdetermine").
These decisions repeatedly have recognized that a municipality's failure to hire or train its police officers properly can be involvement sufficient to hold the city accountablefor the physical harm resulting from by those officers' individual acts of unconstitutional violence. City
~~ —— -— of Canton: Spell v. McDaniel. 824 F.2d 1380 (4th Cir. 19871: see also Jeffes. 208 F.3d at 61 (failure to train corrections officers to respect Free Speech right of guard speaking out against abuse of inmates); Walker, 974 F.2d at 300 (reversing dismissal of suit based on failure to train police to refrain from giving perjured testimony): Harris v. Citv of Paeedale. 821 F.2d 499, 508 (8lh Cir. 1987) ("where it becomes clear that the police force needs close and continuous supervision because of a known pattern of misconduct, and the municipality fails to provide such supervision." continuation of the misconduct is "the inevitable result") (internal quotation omitted).
Even closer to the-facts of this case are decisions specifically holding that a municipal custom or policy of failing to discipline rogue officers can be said, for section 1983 purposes, to
37

cause the injuries suffered by those subjected to police misconduct. See Canton. 489 U.S. at 390; Vann. 72 F.3d at 1051 (reversing summary judgment on causation because "it would be entirely permissible for the jury to find that the Department's restoration of [individual officer] to fullduty status and its indifference to the postreinstatement civilian complaints against him caused him to feel entitled, whether on duty or off, to compel the 'respect' he demanded through the use of violence"); Turpin v. Mailet. 619 F.2d 196,201 (2nd Cir. 1980); Cox v. District of Columbia. 821 F. Supp. 1,19 (D.D.C. 1993) (finding causal link between inadequate discipline practices and individual acts of violence), affd 40 F.3d 475 (D.C. Cir. 1994) (table); Saneov. Citv of New York. 1989 WL 86995 *9-*10 (E.D.N.Y. Jul. 25,1989) (holding that inadequate review of civilian complaints amounted to a municipal custom, which cauSethoffrceTsToTeel they woulcl—~ not be disciplined —and therefore caused civilian injuries); see also Walker v. Citv of New York. 974 F.2d 293,297 (2nd Cir. 1992) (unjust conviction may be attributed to municipality if plaintiff can prove "a practice of condoning perjury (evidenced perhaps by a failure to discipline for perjury" or that "policymakers were aware of a pattern of perjury by police officers but failed to institute appropriate training ar supervision"); Gentile v. County of Suffolk. 926 F.2d 142r 152-53 (2nd Cir. 1991) (affirming the sufficiency under Monell of district court finding that "County's long history of negligent disciplinary practices regarding law enforcement personnel.. . gave rise to . . . malicious prosecution"); Bielevicz. 915 F.2d at 851 (defendant officer was "emboldened by the City's laxity" concerning false public intoxication arrests).
Indeed, in Mvatt v. Citv of Chicago. 1991 WL 94036, *7 (N.D. III.), the court expressly allowed a case to go forward seeking to hold the City accountable for acts of police violence, based on the plaintiffs allegations "that the City is and has been aware of the code of silence in
38

the Police Department which prevents officers from reporting or testifying against fellow officers
who might use excessive force . . . . lack of action on the part of the City over this years can
properly be characterized as 'deliberate indifference.'" See also Sharp v. Citv of Houston. 164
F.3d 923. 935, 936 (5th Cir. 1999) (affirming verdict against city because "jury could have
decided that the [police department] tolerated and even fostered an attitude of fierce loyalty and
protectiveness within its ranks, to the point that officers refused to address or report each others'
misconduct"); White Ruiz, (holding that "plaintiff [had] offerfed] sufficient evidence to permit a
reasonable trier of fact to infer that the 'blue wall of silence' constitutes a custom or usage of the
Department and that the actions allegedly directed against plaintiff by her fellow officers were a
manifestation of that practice" and citing evidence that the code of silence "was stringently, if
informally, enforced in the Department" and that "the Department had neither acknowledged the
existence of the code of silence nor taken any steps to end it"); Ariza v. Citv of New York. 1996
WL 118535 (E.D.N.Y.) (noting testimony that "the code of silence operates to discourage
officers from making public the wrongful acts of fellow officers").17
l7As noted above. Defendants do not cite these last decisions, but obliquely seek to distinguish them on the ground that the "wall of silence" findings of the Mollen Commission concern apply only to police corruption, rather than violence. Memorandum at 24 n.7. Whatever the merits of the decisions cited by the PBA, Defendants travel a long way from asserting that Mr. Louima has "departed from reality" for having even suggested that there is a code of silence to acknowledging the existence of a code, but arguing that it protects only venal, but not violent police officers. In point of fact, the Mollen Commission - whose mandate was to study police corruption - surely did not conclude that the same union pressures that allow corruption to flourish are not present in cases of brutality, and its harsh findings concerning the union's and the City's support for the code of silence hardly helps the PBA carry its burden of showing that there is "no set of facts" that could establish the legal responsibility sketched out for the PBA in the complaint. Cf. United States v. Bruder 2000 WL 290269 *4 ("Schwarz urges that there is an 'immense disparity' between lying about a police officer's use of profanity and conspiring to cover up a uniquely brutal act of police misconduct. But this difference is a matter of degree, not type"); Ariza v. Citv of New York. 1996 WL 118535 (E.D.N.Y. Mar. 7,1996) at *5 (rejecting argument that "code preventing] reports
39

The PBA's contrary arguments concerning causation invite the Court to overlook this body of controlling precedent, in favor of flawed analogies to dimly relevant legal doctrines. First, rather than reckon with the numerous cases specifically addressing the sort of causation required under § 1983, Defendants instead refer the Court to two cases, decided under New York law. See Memorandum at 21-22 (discussing Sheehan v. Citv of New York. 40 N.Y.2d 496. 387 N.Y.S.2d 932 (N.Y. 1976) and Heredia v. United States. 887 F. Supp. 77 (S.D.N.Y. 1995)). According to the PBA, because the courts in these cases ruled for the tort defendants, on the ground that "proximate cause" cannot be established "merely" by showing the defendant "creatjed] the circumstances that occasion an injury," it follows that "merely" creating an environment where police violence goes unpunished is not enough to hold the PBA (and the City) responsible under § 1983 for the consequences of any violence that actually ensues. Memorandum at 21.
At the outset, if there were any conflict between what is required by New York tort law and what has been held necessary to establish causation under § 1983, the latter obviously would be controlling here. See Fiacco. 783 F.2d at 326 (expressly rejecting defendant's assertion "that a "policy that... merely permits or tolerates unconstitutional acts by city employees cannot be the basis for municipal liability under § 1983"); Mvers v. Citv of Orange. 157 F.3d 66, 74 (2nd Cir. 1998) ("defendants in § 1983 actions may be held liable for those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties") (citation omitted). But even the cases the Memorandum cites - arising from factual settings that are far
of corruption or dishonesty by fellow officers" - the existence of which apparently was conceded by defendants - was irrelevant to claim that code was enforced for reporting ethnic favoritism).
40

removed from those presented here - do not announce the legal rule that the PBA argues for.

Indeed, those cases and others decided under New York law affirm that a defendant will be liable

even for damages caused by an intervening intentional tort if the defendant foresaw or should

______

•

have foreseen that the misconduct would ensue. Kush-byMarszalek v. Cltvof Buffalo, 59

N.Y.2d 26 (1983). Thus, in Heredia, the court, in refusing to impose tort liability on a defendant

who lent a car (in violation of an administrative regulation) to another whose negligent driving

caused injury, stressed that the possibility of third parties' careless driving was not the problem

toward which the regulatory prohibition was aimed. See 887 F. Supp. at 83 (plaintiffs injury

was not "foreseeable, because the regulations were [not] intended to protect against the kind of

harm which actually occurred"). Here, Defendants stand accused not merely of negligence

concerning foreseeable wrongful conduct (which is all that New York tort law actually requires)

- but of a custom and policy of reckless and deliberate indifferencejto the very consequence that

ensued: that their actions would embolden violent police brutality.

In similar fashion, the Memorandum steers clear of precedents such as Adickes. and Lusbv. which address the extent of § 1983 liability for conduct - like that here - whose unconstitutionality is beyond doubt, directing the Court's attention to decisions denying § 1983 relief on the analytically distinct ground that the plaintiff had failed to show deprivation of a constitutional right. While the Supreme Court's decisions Deshanev v. Winnebago County Dep't Soc. Servs.. 489 U.S. 189 (1989) and Martinez v. California. 444 U.S. 277 (1980), stand for the proposition that the Fourteenth Amendment does not include a general right to government protection from private violence, but cf. Dwares. 985 F.2d at 98-99 (recognizing that the Deshanev rule does not foreclose all failure-to-protect liability), neither case purported to

41

decide when a private defendant can be held accountable based on its involvement in actions that were unconstitutional and committed under color of law.18 The proper legal standards for linking
customs and policies to particular constitutional deprivations are not undemanding, see Walker.
974 F.2d at 297-98. but the cases cited, which address an entirely distinct element of section
1983 liability are unilluminating.
Finally, the notions of duty that the PBA seeks to inject into this case simply have no
place under section 1983. The sources of the PBA's legal obligation to Mr. Louima are the
Constitution and § 1983 itself, which provides a remedy against all persons who participate in
deprivations of federal rights accomplished under color of law. Once more, the PBA's selective
sampling of State cases could hardly be less probative. In Burns Jackson Miller Summit &
Spitzer. 59 N.Y.2d 314,464 N.Y.S.2d 712 (N.Y. 1983), see Memorandum at 16, the New York
Court of Appeals addressed a question of the New York Legislature's intent: whether a private
right of action could be implied from the statute prohibiting strikes by municipal unions." The
question presented for this Court^s-deetsien is diametrically different: the statute under which the
PBA is sued is one whotfe specific and exclusive purpose is to provide a cause of action against
18A1 though Martinez does include language indicating that the "decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law," this observation, which came after the Court's holding that the plaintiff had failed to allege the deprivation of a federal right, was explicitly limited to the facts of the "particular parole decision" before the Court. 444 U.S. at 285. The Court's decision also expressed reluctance to impose constitutional obligations in the "practical and troublesome area," of parole decision making. 444 U.S. at 283; see 'yL (noting that "basic risk that repeat offenses may occur is always present in any parole system").
l9Notably, while the New York Court of Appeals held that the statute could not be privately enforced through a damages action, it affirmed lower court rulings that unions could be sued - albeit not by the particular plaintiff - on a common law public nuisance theory, he., that there were preexisting common law duties that the statute had not abolished.
42

those who wilfully participate in deprivations of individual rights under color of law.20 j Indeed. ~-—-^
even if abstract common law categories applied, the tort duties to refrain from the sort of wilful
and reckless misconduct alleged in the complaint run against the world. See also infra, at V.
(discussing PBA's common law responsibilities for its actions).
b. Section 1983 Fully Applies to Labor Unions Who Act Jointly With State Actors to Deny Civil Rights
To the extent that the Memorandum argues, see id. at 16, that labor unions can only be
sued for actions taken in their proprietary capacity - and therefore not under Section 1983 - the
20Lizzi v. National Ass'n of Letter Carriers. 755 F. Supp. 68 (E.D.N.Y. 1991) (discussed. Memorandum at 15), is, if anything, even less relevant. The labor union defendant in that case was not charged with maintaining a custom or a policy of reckless disregard for the constitutional rights of the plaintiff: the sole claim was that the union's (successful) representation of one of its members in connection with his disciplinary hearing made the defendant responsible for a subsequent tortious act committed within the scope of his employment. Here, liability is not based on the PBA's having kept Volpe, for example, on the force, by representing him in administrative disciplinary hearings and thereby "furnishing the condition" for him to brutalize again. S[ee \ 145 (noting, in the course of claim against the City, that "the Police Department received a number of complaints concerning defendant Volpe's excessive use of force on civilians,"which were wrongly determined to have been "unfounded"); see also \ 149 (citing Police Department's failure to take disciplinary action against Schwarz for having "testified untruthfully at a departmental hearing in an unsuccessful attempt to help defendant Abbate - himself the object of more than two dozen civilian complaints - on the force").
Rather, the complaint charges the PBA's custom of using extralegal means to protect the most violent and lawless police officers - a practice that has the near certain result of producing constitutional deprivations (although the paragraphs cited would have some relevance if Defendants were staking their dismissal motion, as they are not, on the idea that the individual officers were not aware of the blue wall. See Batista v. Rodriguez. 702 F.3d 393, 399 (2nd Cir. 1983) (rejecting Monell claim for lack of evidence that officer defendants "were aware of any City policy condoning police violations of civil rights"). Moreover, the PBA's insistence that it owes "no duty*' to Mr. Louima is especially jarring, given that so many of the cover-up activities in which the Defendants stand accused of having played a central role involved the PBA's singling Mr. Louima out for maltreatment.
43

governing law is, yet again, emphatically to the contrary.21 To begin with, municipal unions are
regularly subjected to section 1983 liability under the same standards as are others who violate
constitutional rights. This includes in cases where the constitutional deprivation is accomplished
through operation of a collective bargaining agreement. See, e.g.. Messman v. Hemke. 133 F.3d
at 1045 n.2 (noting absence of dispute that municipal employees' union "was acting under color
of state law when it joined with the City in drafting and ratifying the [collective bargaining
agreement]"); Bromley v. Michigan Educ. Ass'n. 82 F J d 686 (6th Cir. 1996) (entertaining § 1983
case against union for having abridged represented bargaining unit member's free speech rights);
Andrews v. Education Ass'n of Cheshire. 829 F.2d 335 (2nd. Cir. 1987) (same).
Unions are routinely held liable under federal civil rights statutes for their role in having
encouraged, agreed to, or acquiesced in policies that lead to deprivations of third parties' civil
2lAlthough not relevant to the question of section 1983 liability, the PBA exaggerates considerably when it posits that these decisions stand for a universal common law principle that "a union is not legally responsible for torts committed by its members," Memorandum at 16. Although those cases arguably hold that a union will not be held responsible for a tort based only on the fact that their lawful representation of a member/tortfeasor in a grievance proceeding was a but-for cause of subsequent misconduct, unions have been held accountable when their involvement extends beyond good-faith discharge of clear statutory duties. See, e.g.. Browne v. International Bhd. of Teamsters. 203 A.D.2d 13, 609 N.Y.S.2D 237 (1994) (upholding union liability for strike-related violence). Similarly, the Memorandum might be literally correct in saying that "unions have not been held liable in tort for their actions as unions," icL(emphasis supplied), in that the decisions the PBA chooses to cite declined to hold union defendants liable, there are many decisions that do hold unions liable for tort, see Caso v. District Council 37. AFSCME. 350 N.Y.S.2d 173 (A.D. 1973). Indeed, the New York Court of Appeals held, in Burns Jackson, that unions may be sued in tort, but found no liability on the facts of that case. See also Bovle v. Anderson Fire Fighters Ass'n Local 1262. AFL-CIO. 497 N.E.2d 1073 (Ind. App. 2 Dist.1986) (fighting fires was "ministerial duty" owed by union members to all members of general public); Burke & Thomas. Inc. v. International Org. of Masters. Mates & Pilots. 600 P.2d 1282 (Wash. 1979) ("We do not question that a public employee union may be held to answer for its torts"). As will be shown below, there are many more decisions holding unions accountable for conduct "as unions" committed, as here, in violation of civil rights laws.
44

rights. See, e.g.. McDonald v. Santa Fe Trail Transp.. 427 U.S. 273, 284 (1976) (union Title VII liability is appropriate when union "acquiesced and/or joined in" employer's discriminatory policies); Guerra v. Manchester Terminal Corp.. 498 F.2d 641, 656 (5th Cir. 1974) (union liable for inducing employer to discriminate); Philbrook v. Ansonia Bd. of Educ, 757 F.2d 476,487 (2nd Cir. 1985), aff d in part and remanded on other grounds. 479 U.S. 60 (1986) Qoint union liability for failure to accommodate employee's religious practice); Murphv v. Miller Brewing Co.. 307 F. Supp. 829 (E.D. Wis. 1969). Once more, the PBA purports to provide the Court with a snapshot of the legal landscape but has managed to place its thumb over the part of the lens that would capture the many precedents (here, an overwhelming majority) that do not support its assertions.
Finally, the Court need not be long detained with the PBA's contention that Mr. Louima seeks to hold the union accountable for actions resulting from the "necessary" performance of its tasks as collective bargaining agent, charged with responsibility for representing guilty and innocent members aUke.^Alih.ciughJheLMemorandum's warnings that section 1983 liability here would convert unions into '"judges'" rather than '"advocates,"' see j d (quoting Lizzie may have some abstract rhetorical bite, they are stunningly inapposite to the facts set out in the complaint in this case.
First, it is not "necessary" that those who engage in violent misconduct have as their "'advocates" individuals who are themselves police officers, under a sworn duty to uphold the law and protect the public. As Judge Raggi held in finding that communications between PBA agents and police officer members were not privileged against disclosure to a grand jury, there is no even arguable basis for barring disclosure to those other than the employer, see In re Grand
45

Jury Subpoenas Dated January 20. 1998. 995 F. Supp. 332, 336 (E.D.N.Y. 1998) (distinguishing Citv of Newburgh on that basis), and there is no reason why the PBA's members' need for confidential advice cannot be met through direct consultation with (union-provided) criminal defense lawyers. See id. at 339 & n.6 (noting that officers were "competent to discuss [their] concerns fully and frankly with licensed counsel" and contrasting union representatives with translators or others whose services truly are required "to facilitate communication between attorney and client"). In the face of this ruling, which involved the same parties and arose from the same underlying facts as does this case, it is striking that the PBA continues here to assen that there is an implicit exception to an officer's duty to protect the public for cases where that police officer is a PBA agent and where the criminal is a union member who has brutalized a civilian.
In fact, Mr. Louima does not seek to hold the PBA accountable for good-faith efforts to protect its members' legal rights - or even solely for wrongful nondisclosure of officers' criminal confessions. See f 19 ("The. PBA and its agents are not mere passive receptacles of inculpatory information. Instead, in this case and many others, the PBA [acts affirmatively]... with the specific intent of determining what evidence of criminality must and can be hidden from law enforcement authorities"). The complaint describes actions that go far beyond what any "advocate" may - let alone "must" - go. See In re Grand Jury Subpoena Puces Tecum Dated Sept. 15. 1983. 731 F.2d 1032, 1038 (2nd Cir. 1984) ("advice in furtherance of [fraudulent or unlawful] goals is socially perverse . . . and not worthy of protection under ordinary rules of [attorney/client privilege]"). Although the Memorandum does not say so in so many words, the PBA's position only becomes coherent - but still not correct, obviously - if suborning perjury,
46

intimidating witnesses, and obstructing the resolution of investigations of violent crimes are really "necessary" incidents of the duty running from union to member. But the law is clear that even a criminal defense lawyer- whose duty of advocacy is long-established and jealously protected - may not engage in that sort of conduct, and if an attorney is accused of having done so, it is no defense, as the PBA seems to assume, that he was advancing his client's interests. Cf. United States v. Faver. 523 F.2d 661 (2nd Cir. 1975). Indeed, as the allegations of the complaint make clear, the PBA's actions do not even meet that description: although violent criminals such as Schwarz, Volpe, and Wiese may benefit from the union's approach, honest officer/members who are deterred from coming forward - as the law requires them to do - are actually placed in harm's way (although the risk is, concededly, a largely theoretical one, given the City's lax record of discipline for those who commit code-of-silence violations, see, e.g.. % 165); see generally ^ 164 (noting Mollen Commission conclusion that "the PBA "often acts as a shelter and protector of the corrupt cop, rather than as a guardian of the interests of the vast majority of its membership, who are honest police officers").
4. The Complaint Adequately States a Deprivation of Federal Rights The PBA's final line of defense against section 1983 liability is to argue that the complaint does not state a claim that the PBA deprived Mr. Louima of rights that are of "constitutional" dimension. Memorandum at 18-20. There can, of course, be no question that Mr. Louima's complaint states a claim under § 1983 for arrest without probable cause, see Wevant v. Okst. 101 F.3d 845 (2nd Cir. 1996); for use of unreasonable force by beating him while he was handcuffed.in the squad car, Graham v. Connor. 490 U.S. 386 (1989); use of unreasonable force by the degrading and violent torture in the precinct house, Powell v. Gardner.
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891 F.2d 1039 (2nd Cir. 1989), deliberate indifference to his need for medical attention while in custody, see Wevant. 101 F.3d at 857: Tavlor v. Bowers. 966 F.2d 417 (8th Cir. 1992), and for continued detention, Le±, shackling him to his hospital bed, without probable cause. With respect to these undeniable constitutional injuries, the PBA rests its demand for excuse from section 1983 liability only on the ground, discussed in the preceding pages, that these specific actions are. one way or another, too remote as a matter of law from the PBA's wrongful customs and practices.

The Memorandum - necessarily - takes a different tack regarding claims arising from

those actions, many specifically directed at Mr. Louima by the PBA, which were aimed at

deterring and discrediting his testimony, interfering with the ordinary course of justice, and

punishing him for pursuing legal redress. Even if the allegations of the complaint are true, the

Defendants submit, Le^, if (1) the PBA, knowing that Mr. Louima had suffered life-threatening

injuries through the vicious acts of the individual defendants, promptly took the side of his

tormentors, (2) used imprjp^

the individual

officers from having to answer criminally and civilly for their actions, and (3) embarked on a

campaign specifically designed to inflict further emotional harm on Mr. Louima and his family,

in order, among other things, to deter him from seeking redress and from testifying in criminal

cases (and to dissuade authorities and jurors from crediting his allegations), such actions do not

state a constitutional claim. See Memorandum at 19. This argument has two parts: (1) a

contention that the complaint does not state a claim against the PBA for unreasonable seizure

because it (supposedly) does not allege PBA involvement before August 13 - the same day that

Mr. Louima was finally released from police custody, see jd., and (2) an assertion that the PBA's

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cover-up-related conduct violated no constitutional right of Mr. Louima's, because his right to petition for redress supposedly has not been compromised. See Memorandum at 3 (asserting Mr. "Louima has had his day in court"). The very pendency of this civil suit, the PBA insists, is conclusive proof that Mr. Louima has no viable constitutional claim. Id.. Neither prong of the PBA's argument holds up under scrutiny.
With respect to the first, it is well to note what did not happen: there is no basis in the complaint (or in fact) for believing that the PBA, upon learning of the extreme bmtality that had been visited upon Mr. Louima, set out promptly to set matters right, only to find out that Mr. Louima had, that same day, already been ordered freed. £ £ United States v. Dallas. 2000 WL 1473896 (2nd Cir. Oct. 4, 2000) *4 (stating requirements for abandonment defense in criminal conspiracy). For purposes of this motion, it must be accepted that the PBA was meeting on August 13 in an effort to determine which lies were necessary to frustrate the course of justice and what conduct directed at Mr. Louima would be most effective in humiliating and silencing him. The nub of the PBA's assertion, then, is only that the fluke of timing (L&, that both the meeting described in the complaint and the release occurred on the same day) means that the PBA cannot be held responsible for "any deprivation of Mr. Louima's rights from August 9 to August 13" - even if it may plainly be inferred from the complaint's allegations that, had Mr. Louima not been released, Defendants would have taken whatever steps thought necessary to perpetuate the violation of his Fourth Amendment rights.
But this entire argument rests on an inaccurate - and, for Rule 12(b)(6) purposes, entirely untenable - reading of the complaint: as affirmatively alleging that the basement meeting on August 13 represented Defendants' first involvement. In fact, the complaint specifically pleads
49

that "defendant PBA quicklv became involved in the conspiracy and through its agents, plaved a significant role in advancing the cover-up." 1J71. Defendant Immitt himself has testified that, as early as August 10, he had been made aware (by defendant Wiese) that something had happened at the 70Ih Precinct, and more important, both Defendant Schwarz and Inspector Burns of the Internal Affairs Bureau testified under oath that Wiese . a PBA delegate, was carrying out the duties of PBA agent, in connection with this case, as early as August 10. See Attachment A.22
The circularity of the PBA's argument concerning Mr. Louima's First Amendment rights is not easy to miss. At the same time that the Memorandum purports to accept that Mr. Louima, like other citizens, enjoys a First Amendment right to petition the government - including the courts and the authorities charged with investigating the crimes committed against him - it insists upon a rule that would make that right a practical nullity. Under Defendants' view of the law, if efforts to intimidate a would-be plaintiff succeed, then a wrongdoer will escape liability for both his wrongdoing and the bad acts committed after the fact; and if, as here, a cover-up is less than entirely successful, and the plaintiff makes it to court, no "deprivation" has occurred.
Although the Memorandum - uncharacteristically - cites supporting authority that is in point (albeit from a District Court in another Circuit, §ge Memorandum at 19 (citing Griffin v.
22Although Defendants might argue, with some plausibility, that Wiese had a personal interest thai transcended his role as PBA delegate, it is far too early to determine which of the three hats violent criminal, police officer, or PBA fixer - Defendant Wiese was wearing at any particular time, especially in view of specific testimony offered that it was the latter of these.
As for defendant Abbate, although he was not, at the times relevant, an employee or official representative of the PBA, the facts alleged in the complaint do not foreclose his being found to be Defendants' agent With the benefit of discovery, the precise nature of Abbate's relationship with Defendants should become more clear.
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Holv. 1996 WL 556969 (N.D. 111. Sep. 26, 1996V): see also Vasquez v. Hernandez. 60 F.3d 325. 332 (7th Cir. 1996), other courts have had no difficulty perceiving the perverseness of such a rule. See, e.g.. Bell v. Citv of Milwaukee. 746 F.2d 1205, 1261 (7th Cir. 1984) (noting that a narrow interpretation of the court access right "would encourage police officials to conceal the circumstances relating to unlawful killings"); Gonsalves v. Citv of New Bedford. 939 F. Supp. 921, 927 (D. Mass.1996) (if "the mere filing of a suit was sufficient in every case to extinguish a 1983 claim for cover-up, the concept would be a nullity because the issue of cover-up is only presented to a court once a case is filed"), and that narrow understanding is not the law of this Circuit. See Barrett v. United States. 798 F.2d 565, 575 (2nd Cir. 1986) (allowing claim to go forward based on diminution of value of verdict because defendants' "obstruction of justice in conducting a defense to that action deprived [plaintiffs] not of the whole of their . . . lawsuit, but only of a part of that protected property"); McGartv v. Town of Carmel. 997 F. Supp. 435,437 (S.D.N.Y. 1998): see also Rvland v. Shapiro. 708 F.2d 967, 973-74 (5th Cir. 1983) (observing that "any interference with a substantive constitutional right, such as the right of access to the courts, may by itself amount to a constitutional deprivation" and noting that cover-up related delay "would cause stale evidence," and make litigation more expensive); Gonsalves. 939 F. Supp. at 927 ("[t]he fact that the plaintiff filed this lawsuit despite the immediate, intentional efforts to cover-up the beating and the denial of medical care that the jury found proven does not extinguish the defendants' potential liability for cover-up").
Indeed, the wrongfulness of such an interpretation of the First Amendment is not limited to these undeniably perverse consequences: in fact, the rule the PBA presses for is in powerful tension with basic postulates of constitutional law. As an initial matter, the "right 'to petition for
51

a redress of grievances [is] among the most precious of liberties safeguarded by the Bill of Rights' and is 'intimately connected . . . with the other First Amendment rights of free speech and free press,'" Gaeliardi v. Village of Pawling. 18 F.3d 188, 194-95 (2nd Cir. 1994) (quoting United Mine Workers v. Illinois Bar Ass'n. 389 U.S. 217 (1967)), and those other guarantees of the First Amendment consistently have been held violated by policies that merely make their exercise more difficult - irrespective of whether or not the plaintiff actually decides to run the gauntlet. See Davis v. Village Park II Realty Co . 578 F.2d 461,463 (2nd Cir. 1978), or whether the challenged policy amounts to a complete prohibition of protected activity. See New York Times v. Sullivan. 376 U.S. 254 (1964); Arkansas Writers Project v. Ragland; 481 U.S. 221 (1987); Rutan v. Illinois Reublican Party. 497 U.S. 62, 72-73 (1990) (it was error, in public employee's First Amendment case, to require proof of an adverse action "substantially equivalent [to] dismissal"); see generally LeBlanc-Sternberg. 67 F.3d at 426 ("since the loss of First Amendment freedoms, even for minimal periods of time, constitutes irreparable injury . . . the victim of a conspiracy to deprive First Amendment freedoms has standing to bring suit before the conspiracy has resulted in economic or tangible injury"); see also Fisher v. Citv of Cincinnati. 753 F. Supp. 681 (S.D. Ohio 1990) (explaining inapplicability of procedural due process standards in case brought under First Amendment court access right).
To the extent that decisions such as Griffin or Vasquez have relied on Bounds v. Smith. 430 U.S. 817 (1977) and Lewis v. Casev. 518 U.S. 343 (1997), as establishing that the right to court access is violated only when it is substantially burdened, they have overlooked a number of legally critical distinctions. Not only did those decisions arise in the prison setting, where government interference with First Amendment rights are most tolerated, see Turner v. Saflev.
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482 U.S. 78 (1987), they have involved prison rules and practices that have the unintended effect
of making court access more difficult. Here, the intent was to burden Mr. Louima's rights. See
Hudspeth v. Fieeins. 584 F.2d 1345, 1348 (4th Cir. 1978); McGartv v. Town of Carmel. 997 F.
Supp. 435 (S.D.N.Y. 19981: see generally Loper v. New York Citv Police Dept. 999 F.2d 699.
705 (First Amendment inquiry is more searching in cases of intended, as opposed to incidental,
burdens on First Amendment freedoms).23
But even the dubiously restrictive approach could not support granting Defendants'
motion to dismiss here. To the contrary, the complaint adequately alleges that the PBA has
interfered with - and continues to - Mr. Louima's right to obtain meaningful relief for his
injuries. See Nielsen v. Clavton. 1995 WL 417569 (7th Cir. 1995) ("Where a cover-up of a
constitutional deprivation continues during trial, plaintiffs are being denied adequate, effective
and meaningful access to the courts. Thus, plaintiffs were entitled to recover for emotional
23Dissenting from the Seventh Circuit's decision in Vasquez. Judge Crabb argued persuasively that if prejudice is to be treated as an element of right of court access claim, the analytical framework should build on doctrine developed in cases addressing the constitutionality of governmental delay in indicting or trying defendants. In such cases, she explained:
deliberate delay by the government weighs heavily in favor of finding breach of the constitutional right [I]n pre-indictment delay cases, deliberate delay may impute a violation of due process even if the indictment is brought within the limitations period. I see no reason to alter this analysis when examining interference with access to the courts caused by a conspiracy of state actors. The reason for delay in this particular case could hardly be more egregious. The very nature of a conspiracy makes it difficult for parties from whom evidence or other information is being withheld to determine the extent of their harm. When state actors seek to protect one or more of their own by concealing evidence, hindering investigation or failing to cooperate with the judicial process, it is all the more difficult to discern the full extent of the victim's deprivation. Where, as here, there is evidence of a conspiracy to intentionally impede justice, the showing of prejudice required should be minimal.
60 F.3d at 332 (Crabb, D.J., dissenting) (citation omitted).
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distress suffered until they obtained relief for Nielsen's death, which was when the jury returned a verdict in their favor") (cited in Gonsalves. 939 F. Supp. at 927). The complaint alleges, for example, that, by dint of the cover-up, critical evidence has been destroyed, "potentially inculpatory evidence" was removed, and false stories were solidified; and needless expenses incurred. See also f26.o. (noting that identities of "William Woe" PBA defendants remain unknown to Mr. Louima); cf Davis, 578 F.2d at 463. The price for Mr. Louima's perseverance has been extreme emotional extreme hardship - including both fear of physical retribution and the humiliation pursued by the PBA. Finally, although acquittals have no preclusive effect in this civil case. Defendants' efforts - the many specifics of which remain unknown to Mr. Louima at this stage - have placed upon Mr. Louima the burden of proving conduct, such as the police car beating, that would already have been established had Defendants permitted justice to run its course.24
III. The PBA Actions Violate The Civil Rights Conspiracy Laws
A. The PBA's Liability For Section 1986 Does Not Depend on Proving Its Conspiratorial Involvement
The PBA makes only one argument in support of its contention that count XII of the complaint, charging Defendants with neglect to prevent a civil rights conspiracy, must be
24Finally. to the extent that Defendants maintain that their conduct does not fall within the doctrinal prohibitions of the First Amendment, that does not mean that dismissal would automatically be warranted. See County of Sacremento v. Lewis. 523 U.S. 833,843 (1998) (where specific constitutional guarantee does not apply, conduct violates the Fourteenth Amendment if irshocks the conscience").
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dismissed.25 Because liability under that provision is contingent upon viable allegations (and. ultimately, proof) that section 1985 was violated, the Memorandum argues, if the Court accepts Defendants arguments against holding them liable under that statute, but see infra, the § 1986 claim must fall, too.
That is error. Although it is a truism that a claim under § 1986 may not go forward absent a viable section 1985 claim (because liability is premised on defendant's neglect in allowing a § 1985 conspiracy to succeed), it is no less well established that a defendant may be held accountable, under section 1986 for failing to have prevented a civil rights conspiracy in which it was not a participant. Peck v. United States. 470 F. Supp. 1003,1012 (S.D.N.Y. 1979); accord Platskv v. Kilpatrick. 780 F. Supp. 110,113 (E.D.N.Y. 1991); see generally Hampton. 600 F.3d at 629. Thus, dismissal of Count XII could only be appropriate if the PBA showed that the complaint does not state a viable claim of any. Section 1985 conspiracy - against any Defendants - including the police officers who hurled racial epithets against Mr. Louima as they savagely beat him.26
-S42 U.S.C. § 1986 provides that: Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented
26Moreover, a defendant may be held accountable under §1986 for failing to prevent accomplishment of any Section. 1985 conspiracy, including those for which no proof of race- or class-based animus is required. See Kush v. Rutledpe. 460 U.S. 719, 726 (1983) ("it is clear that Congress did not intend to impose a requirement of class-based animus on persons seeking to prove
55

The PBA, wisely, does not even attempt that demonstration - nor does the Memorandum
argue in any way that the complaint fails adequately to plead the other elements of section 1986
liability, that Defendants allowed injuries to be inflicted that they could have, in the exercise of due care, prevented. Clark v. Clabaueh. 20 F.3d 1290 (3rd Cir. 1994) (proof of negligence suffices to establish liability under § 1986):. Park v. Citv of Atlanta. 120 F.3d 1157 (1 l'h Cir.
1997). Even if knowledge Wiese acquired in the course of the abuse of Mr. Louima is not
imputed to his principal, as ordinary principles of agency law would provide, see In re Mediators.
Inc.. 105 F.3d 822, 827 (2nd Cir. 1997), it is undeniable that he came to act in this case as a PBA
agent "soon thereafter," see supra, and the complaint similarly makes clear that still higher
ranking PBA officials became aware (to understate matters significantly) of the conspirators'
plan to maintain Mr. Louima under custody as a criminal suspect and deter him (and others) from
giving truthful testimony to investigators and from seeking redress for his injuries. Furthermore,
it is readily apparent from the complaint's other allegations that the conspiracies would have
been less successful in damaging Mr. Louima had the PBA not undertaken to interfere with its
members' doing their legal duty - or, indeed, if the PBA's own police officer/agents, upon
a violation of their rights under the first clause of Section 1985(2)").
Although, in recently amending their complaint, Plaintiffs inadvertently neglected to alter the wording of Count XII so as to state unambiguously that the PBA is being sued for failing to prevent any of the § 1985 conspiracies - and not merely those pleaded under § 1985(3) - the full breadth of Plaintiffs' theory of recovery should be apparent from the body of the complaint, and. given the facts of this case, any claim by Defendants to have been prejudiced by this typographical error should be met with considerable skepticism. ££. Fed. R. Civ. P. 15. As is made clear above. Defendants' contentions concerning the § 1985 and § 1986 claims that the complaint does unambiguously plead are decidedly cursory, and an assertion that they would have proceeded differently on § 1986 had there been no clerical oversight must be evaluated in the light of those patently flawed arguments. If the Court deems doing so the appropriate course, Plaintiffs will seek leave formally to amend the complaint with this correction.
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Although § 1985(3) accords a remedy to a person "injured in his person or property . . . as a result of the conspiracy to intimidate or retaliate,"(Le., a § 1985(2) conspiracy) the "gist-of the wrong at which $ 1985(2) is directed." the Court explained, "is not deprivation of property, but intimidation or retaliation against witnesses in federal-court proceedings."27 Precisely like the plaintiff in Haddle, Mr. Louima seeks compensation from Defendants for injuries to his "person," e^g., emotional distress, inflicted as part of the Section 1985(2) conspiracy. Whether or not he has a protectable interest in the outcome of these proceedings - or a constitutional right to be free from these acts, cf. Paul v. Davis.424 U.S.693 (1976)) - Haddle teaches, the answers are not relevant to the § 1985 inquiry.
The decisions cited by the PBA as supporting its position are beside the point — even when judged according to the already relaxed standards of relevance prevailing in the rest of the Memorandum. Even if it were true that the PBA's actions were intended exclusively to benefit the officers in their federal criminal trials - and in no way contemplated civil litigation with Mr. Louima, see Memorandum at 20 ("to the extent that plaintiffs seek redress for acts designed to protect guilty officers from punishment, there is no pleading of injury to Louima") - section 1985(2) would proscribe conspiracies to "deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully," and holds liable "persons engaged in such a conspiracy [who] do or cause to be done, anv act in furtherance of the object of such conspiracy, whereby another is injured in his person or property." § 1985(2), (3) (emphasis supplied). Sge
-7As the Supreme Court explained, § 1985(3) specifies the remedy provision for all the various conspiracies prohibited in the three subsections of the provision. 525 U.S. at 125 n.2.
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learning of the atrocities, had done their own official duties as police officers and reported misconduct. As the complaint details, Defendants did none of this, opting instead, to appear at roll calls urging union members - in defiance of their official duty and, in certain instances, against their own penal interests - to maintain silence. Cf. 1J164
B. The Complaint Adequately Pleads Injury Under Section 1985 Defendants also argue - indeed it is the only argument advanced in support of their motion to dismiss Count XI (which challenges PBA efforts to impede the due course of justice in federal courts) - that Mr. Louima has inadequately alleged "injury," on the ground that the only interest the complaint asserts is in having the culpable individual defendants criminally prosecuted. Because "a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another," the Memorandum insists, id. at 23 (quoting Silverstein v. Barnes. 1986 WL 4525, affd, 798 F.2d 467 (2nd Cir. 1986)), Mr. Louima's § 1985 claims should fail. This argument would be facially implausible under any circumstances - it is so contrary to the plain language of § 1985 - but it is especially ineffective in the wake of the Supreme Court's unanimous decision in Haddle v. Garrison. 525 U.S. 121 (1998), which expressly rejected the argument that for § 1985 purposes, plaintiffs must state an injury to a constitutionally cognizable interest. Reversing lower court rulings that a § 1985(2) plaintiff s claim that his atwill employment had been terminated in retribution for his having testified in a federal trial did not state the sort of "injury" required to maintain a cause of action under that statute (because there is no arguable liberty or property interest in continued at-will employment), Chief Justice Rehnquist explained that the plain meaning of the statute's text foreclosed such a reading.
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id ("[Tjhe party so injured"may have an action for the recovery of damages occasioned by such injury . .. against any one or more of the conspirators") (emphases supplied). Thus, not only may Mr. Louima sue for damage done as part of the effort to prevent him from testifying, "as a witness" -just as the plaintiff in Haddle could sue based on retaliation for having testified in a "federal criminal trial," 525 U.S. at 122 - without showing that he has a "legally protectable interest," in a conviction, he may also hold the PBA liable for any damage to his property, including a cause of action, that has been done as part of the federal conspiracy. See Barrett. 798 F.2d at 575. Haddle leaves no room for Defendants' argument that Mr. Louima can go forward only by showing that destroying his person or property (and not exculpating the officers) was the specific objective (or "design" Memorandum at 20) of the conspiracy. C£ Gonsalves. 939 F. Supp. at 927 (noting that "cover-up may also have had other objectives, such as preventing criminal prosecution").
C. The Complaint Adequately Alleges PBA Involvement in Section 1985(3) Conspiracies and the Section 1985(2) Conspiracy to Impede the Due Course of State Justice
1. The Complaint's Allegations of Class-Based Animus Are Sufficient While the foregoing shows that the complaint states viable claims under both Sections 1986 and 1985(2) (ones for which evidence of racial animus by the PBA is undeniably unnecessary) - the Memorandum's assumption that the animus requirement means that onlv those participants who have joined Section 1985(3) deprivation conspiracies for racially motivated reasons is mistaken. In Bell v. City of Milwaukee. 746 at 1259-60, the Court of Appeals for the Seventh Circuit held that it is the character of the conspiracy - and not the
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individual's state of mind - that determines whether a conspiracy participant can be held liable under § 1985(3). Rejecting an appellant's argument that he could not be held liable under § 1985(3) without individualized proof of specific racial animus on his part, the court ruled that "racial animus of a key conspiratorial actor who initiates and maintains the conspiracy is sufficient to establish conspiracy racial animus under Section 1985." Yeadon v. New York Citv Trans. Auth. 719 F. Supp. 204, 212 (S.D.N.Y.1989), is to similar effect. In that case, supervisor defendants who participated, as the PBA is alleged to, in a racially motivated conspiracy were held legally accountable for involvement, without any apparent claim that their participation had the same motivation. Accord Green v. Francis. 705 F.2d 846 (6th Cir. 1983) (police defendants liable under section 1985 for failure to intercede in race-based conspiracy).28
2. The PBA Is Liable For Hindering The Provision of Equal Protection
Even if Defendants were right that absence of proof that their own participation was racially motivated would defeat a claim based on § 1985(3)'s "Deprivation" clause, see Griffin v. Breckenridge. 403 U.S. 88 (1971), finally, that would not be grounds for dismissing Count IX, which alleges violation of the second clause of Section 1985(3), proscribing conspiracy "for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws" (emphasis supplied). That provision, whose terms aptly describe the PBA's systematic efforts to
28These decisions are wholly consistent with basic principles of civil liability. To the extent that § 1985(3) is understood to reflect a congressional judgment that racially motivated or other class-based conspiracies are especially pernicious, no principle of law or equity suggests that an individual who energetically devotes himself to the success of that conspiracy should not be accountable to the conspiracy's victim, on the ground that he was motivated by different (but still undeniably anti-social) purposes.
60

assure that even the most culpable police officers are not brought to justice, has not been construed authoritatively to impose a class-based animus requirement. See Brav v. Alexandria Women's Health Clinic. 506 U.S. 263, 281 (1993); i d at 289-90 (Souter, J., concurring in part and dissenting in part); Town of West Hartford v. Operation Rescue, 991 F.2d 1039 (2nd Cir. 1993), and, as the facts of this case well illustrates, such a limitation would be neither necessary nor appropriate.
While the Supreme Court has held that class-based animus is an element of a claim under the "deprivation" clause of §1985(3), the Court's opinions have been explicit in recognizing that that requirement derives not from the statutory text but from a pragmatic need to assure that § 1985(3) does not federalize what would otherwise be ordinary tort suits. See Griffin. 403 U.S.. at 102. Although this need to keep Section 1985(3) within manageable limits - particularly in cases of "purely private conspiracies." see Griffin. 403 U.S. at 104 (noting perceived constitutional difficulties in regulating private party conduct) - is broadly consistent with concerns expressed by the statute's drafters, there is no similar need for such extra-textual limitation for claims under the prevention clause, see Brav, 506 U.S. at 301 (Souter, J., concurring and dissenting), and it would be especially inappropriate to impose one to defeat a claim, such as Mr. Louima's, that so deeply implicates the original purposes and plain meaning of the statute. See Brav. 506 U.S. at 348 (O'Connor, J., dissenting) (noting that the "requirement of class-based animus is a reasonable shorthand description of the type of actions the 42d Congress was attempting to address" but cautioning that "that shorthand description" should not be allowed to "take on a life of its own"): but see Libertad v. Welch. 53 F.3d 428 (lsl Cir. 1995) (imposing animus requirement in prevention clause case); Upper Hudson Planned Parenthood. Inc. v. Doe. 836 F.
61

Supp. 939 (N.D.N.Y. 1993) (same).29
The only rationale advanced for importing a racial animus requirement into the prevention clause - the presence of "equal protection" language in the statute - is deeply flawed. First, there is powerful evidence that the statute's framers did not understand the phrase "equal protection of the laws" as limited to refraining from reliance on classifications that modern doctrine treats as "suspect," see Earl A. Maltz, The Concept of Equal Protection of the Laws- An Historical Inquiry. 22 SAN DIEGO L. REV. 499, 537 (1985); Steven J. Heyman, The First Dutv of Government: Protection. Liberty and the Fourteenth Amendment. 41 DUKEL. J. 507 (1991), and the legislative history cited in Briscoe firmly establishes that organized efforts to frustrate the operations of the criminal justice system were a core concern of those who enacted § 1985(3). See 460 U.S. at 338 ("It is clear from the legislative debates that, in the view of the Act's sponsors, the victims of Klan outrages were deprived of'equal protection of the laws if the perpetrators systematically went unpunished.'"). Moreover, even under current doctrine, selective withholding of governmental protection - when improperly motivated - states an Equal Protection claim. Village of Willowbrook v. Olech. 120 S. Ct. 1073 (2000) (per curiam): LeClair v. Saunders 627 F.2d 606,609-10 (2nd Cir. 1980) (a selective treatment claim may be premised upon intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person); Dwares. 985 F.2d at 99 (police refusal to protect flag burners violates
29As Justice Souter's opinion explained, the text of the Prevention Clause - like those other provisions of Section 1985 that have been held not to require class-based animus, see Kush - is, by its nature limited to conduct closely bound up with state action, id. at 301 ("the act of frustrating or thwarting state officials in their exercise of the State's police power would amount simply to an extralegal way of determining how that state power would be exercised").
62

sever the liability of the original tort-feasor b u t . . . [t]hat doctrine has no application when the intentional or criminal intervention of a third party or parties is reasonably foreseeable. When the intervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs.
(citations omitted): see also Derdiarian v. Felix Contracting Corp. 51 N.Y.2d 308,434 N.Y.S.2d 166 (1980), ("liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence"): City of Birmingham v. Benson. 631 So.2d 902 (Ala. 1993) (applying principle in concluding that bouncer could be liable for homicide committed by bar's customer because "he should have realized the likelihood . . . that a third person might avail himself of the opportunity to commit such a tort or crime"); c£ Dwares. 985 F.2d at 99 ("it requires no stretch to infer that [police's] prior assurances [that defendants would not be arrested] increased the likelihood that the 'skinheads' would assault the demonstrators").
Indeed, it was precisely this principle that led courts to rule for the defendant in the two cases Defendants cite, Heredia and Sheehan. Although the defendant in Heredia could be considered negligent (for having lent his car, in violation of an administratively imposed duty) he could not be held accountable in tort, because the intervening conduct (negligent driving) was not foreseeable. In other words, "the defendant's conduct was part of the causal chain of events leading to the injury but the resulting injury could not have been reasonably anticipated by the defendant." Benson. 631 So.2d at 907.
Nor. as noted above, can Defendants properly analogize this case to Lizzi. In that case the intervening tort arguably was a foreseeable consequence of the union defendant's actions, but
64

Equal Protection); cf, Evans v. Romer. 517 U.S. 620 (1996). A regime that denies equal rights and remedies to those seeking redress for police-inflicted violence - or a systematic effort to undermine the State's provision of equal rights - is an affront to these same principles.30
V. The Complaint States Common Law Claims Against the PBA and the Individual Defendants
A. The Complaint Adequately Pleads A Cause of Action For Negligence
Defendants argue that Count XVI, Mr. Louima's claim for common law negligence, fails for the same reasons as do Counts XIV and XV, his claims of systematic wrongdoing in violation of the federal civil rights laws: because a party whose conduct "creates an atmosphere" where violence flourishes cannot be held liable for acts of violence that actually occur. See Memorandum at 27 (citing Heredia. 887 F. Supp. at 83).
But the PBA is no more right about causation under the common law than under § 1983. In Kush bv Marszalek v. Citv of Buffalo. 59 N.Y.2d 26 (1983), the New York Court of Appeals explained the causation showing required under State common law. Answering a school district's argument that it could not be held liable in negligence when the plaintiffs injury resulted from an intervening crime or intentional tort - the theft of dangerous chemicals from school premises - the Court explained:
Defendant is correct that an intervening intentional or criminal act will generally
"Indeed, a policy that provides rights and remedies to victims of violent acts based on whether or not the attacker was a police officer should not survive even "rational basis" Equal Protection review. See Citv of Orange. 157 F.3d at 74 (policy of refusing to prosecute crosscomplaints does not satisfy "rational basis" standard); Navarro v. Block. 72 F.3d 712,717 (9th Cir. 1995) (holding that even when policy of differential treatment of domestic violence victims is not motivated by discriminatory intent, it may still be challenged as lacking a rational basis).
63

the court held that the union's conduct should not be considered negligent. Although its pursuit of a grievance on behalf of the wrongdoer was the but-for cause of plaintiff s injury, Lizzi explained, it would have been "fatuous," to hold the union accountable for having done its duty as a union, i.e.. representing a member of the bargaining unit in a grievance proceeding. But the Memorandum reads that decision for far more than it is worth, u^, as if it announced (1) that anv union action that is intended to advance the interests of bargaining unit members is similarly privileged and (2) that (because the union's legal duty to its member was found in that particular case to be stronger than any general obligation to prevent harm) unions can never be held liable to members of the public for the consequences of negligence.31 Neither of these conclusions is supportable; indeed, Defendants' arguments are refuted by cases imposing common law duties on unions (1) for creating dangerous situations and tolerating lawless actions, see Browne: (2) for inducing or encouraging members to ignore their duties to the public, Bovle v. Anderson Fire Fighters Ass'n Local 1262. AFL-CIO. 497 N.E.2d 1073 (Ind. App. 2 Dist.1986), and (3) for violating statutes in a way that causes private harm, Caso v. District Council 37. AFSCME. 350 N.Y.S.2d 173 (A.D. 1973) (upholding right of general public to collect damages on nuisance theory); Burns Jackson Miller. 464 N.Y.S.2d at 720 (affirming availability of nuisance remedy and holding that Taylor law was not meant to pre-empt common law tort actions for damages caused by union's illegal activities).32 The duty of individual police officers to report instances
3lThe only claims in Lizzi concerned the union's action vis-a-vis its members: an important aspect of Count XVI involves the union's relationship with its agents, i.e.. its neglgient failure to train them in a way that enables them to continue to discharge their duties as peace officers.
32The PBA does not have available to it the defense that helped the union escape common law liability in Burns Jackson. Unlike in that case, Mr. Louima's injuries are not comparable in kind and degree to those suffered by the general public.
65

of violence is a ministerial one, see Boyle (municipal firefighters have nondiscretionary duty to fight fires), and therefore imposes a duty to individual members of the general public, one with which Defendants may not tortiously interfere.33
B. The Complaint Adequately Pleads Intensional Infliction of Emotional Distress
The PBA also insists that the complaint fails to state a claim for intentional infliction of emotional distress, arguing that because the ultimate purpose of Defendants' campaign against Mr. Louima was not to cause him harm, but rather to help the individual police officers avoid criminal prosecution, there exists no set of facts that could establish the requisite "intent." Memorandum at 28. Even if this were an accurate reading of the complaint, the PBA cites no authority as support for the theory that New York law exempts from liability those who knowingly and intentionally cause harm, so long as they can show that, in doing so, they had an ulterior (if equally improper) motive. No such authority exists. Instead - and directly contrary to the PBA's assertions that a cause of action will only lie where infliction of harm is the sole purpose of the misconduct - New York courts, consistently with the Restatement (Second) of Torts, have recognized that recklessness, Le^, indifference to the likelihood that severe emotional harm will ensue suffices to satisfy the "intent" element of the tort. See Dana v. Oak Park Marina. Inc.. 230 A.D.2d 204,209,660 N.Y.S.2d 906, 910 (4th Dep't 1997) (holding that liability can be established by showing "disregard of a substantial probability of causing [] severe emotional distress"); see id. (citing similar precedent from other departments).
33As in Bovle. the activities of the union and its members are uniquely affected with the public safety, and when the union undertakes to help determine how a criminal investigation occurs, it is assumes a duty, imposed by traditional tort principles, not to heighten the dangers faced by third parties.
66

Nor is there anything to the PBA's argument that the complaint's intentional infliction claim is actually one for defamation in disguise, sge Memorandum.at 28-29, and must be dismissed for reasons specific to defamation law. Yet again, the controlling New York law is directly to the contrary. Whether intentional infliction is, as Defendants insist, a disfavored claim, the Appellate Division in Esposito-Hilder v. SFX Broadcasting. Inc.. 665 N.Y.S.2d 697, 699 (3rd Dep't 1997) considered and rejected the specific argument that there can be no cause of action for infliction of distress where the same conduct (in that case, an insulting and embarrassing radio broadcast) would give rise to a defamation claim. Upholding the viability of the distinct intentional infliction claim - even in circumstances where the defamation claim could not go forward - the court quoted the Court of Appeals' observation that "[t]he tort is as limitless as the human capacity for cruelty. The price for this flexibility in redressing utterly reprehensible behavior, however, is a tort that, by its terms, may overlap with other areas of the law, with potential liability for conduct that is otherwise lawful." 665 N.Y.S. 2d at 700 (quoting Howell v. New York Post. 81 N.Y.2d 115,122 [1993]); see also id. (noting that Court of Appeals had specifically rejected argument that intentional infliction claim may never be used as "end around" limitations of overlapping tort). Esposito-Hilder finally cited other appellate decisions that had implicitly taken the same position: in Cohen v. Feiden. the court noted, the Second Department had considered separately (though ultimately rejected on the merits) an emotional distress claim grounded on precisely the same "ill-chosen remarks to parties i n . . . a custody proceeding" as was plaintiffs defamation suit.
Finally, to the extent that the Defendants assert that the intentional infliction claim is barred by the statute of limitations, that is an affirmative defense, see Fed. R. Civ. P. 8(c), which
67

the complaint is not required to anticipate. But the PBA's argument is devoid of merit in any event. First, Federal Rule 15(c)(2) specifically provides that an amended pleading relates back to the date of the original pleading when "the claim .. .arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Here, the initial complaint, filed within the one year limitations period, alleged that there had been a campaign to defame and publicly humiliate Mr. Louima, seeffi[140-47, and put the PBA on notice that it was being sued for its post-attack conduct toward him. The statute of limitations cannot be invoked to penalize Mr. Louima for not having learned soon enough that there had been a secret, conspiratorial meeting in the precinct basement or that the PBA, through Wiese, Immitt, and possibly others had orchestrated that meeting — facts that emerged for the first time in a criminal trial heard earlier this year. See Keating v. Carev. 706 F.2d 377 (2nd Cir. 1983) (if defendant has concealed facts that are critical to a cause of action, the statute of limitations is tolled); Barrett. 689 F.2d at 329-30 (a plaintiff with knowledge of one claim, but deprived of information critical to another is entitled to tolling in that claim).
But even if the first complaint had less fully put Defendants (who have known all along that, inter alia, the meeting took place), the amended complaint makes clear that the PBA's Defendants' actions are not a thing of the distant past: see Iffl109,132 (alleging, respectively, that "defendants' efforts to conceal the truth continue to the detriment of Mr. Louima," and that" the PBA continues to deter and discourage" truthful testimony). See Neufeld v. Neufeld. 910 F. Supp. 977,983 (S.D.N.Y. 1996) (noting the under New York law, ''certain wrongs are considered to be continuous wrongs, and the statute of limitations, therefore, runs from the commission of the last wrongful act."); Dana. 660 N.Y.S.2d at 910 (continuous tort
68

doctrine applies in reckless infliction
cases).
1. The Complaint Adequately States Claims Against Defendants Immitt and Lee And On Behalf of Plaintiff Micheline Louima
On the last two pages of their Memorandum, Defendants attempt to sneak officers Immitt and Lee out of the case. First, Defendants insist that the complaint alleges.
in conclusory fashion... that Immitt and Lee sought to deter individual officers from coming forward, to intimidate any officers who did come forward and to publicize to the perpetrators and other police officers the names of individuals thought to be cooperating in the investigation. Immitt is later alleged to have invoked a privilege concerning communication with union members. Compl. If 77
Even without fully correcting for Defendants' penchant for selective summarization - the last-cited paragraph also alleges that Immitt pleaded the Fifth Amendment when his assenion of privilege was overruled and is followed by an allegation that what testimony he did give was perjurious - plaintiffs contention that such allegations are somehow impermissibly "conclusory" is essentially self-refuting. To the extent that the PBA implies that such factual allegations(not to mention the ones the Memorandum leaves unmentioned) do not comport with the requirement that Immitt and Lee be given fair notice as to the nature of the claims against them, then it is the Memorandum that "departs from [the] reality" of what the Federal Rules require. Fed. R. Civ. P. 8(a).
The remainder of the Memorandum's arguments on behalf of Lee and Immitt incorporate by reference the arguments already made in support of dismissing claims against the PBA. Those arguments do not fare any better for the individuals than for the union. Indeed, they fare
69

worse. There is even less difficulty in finding the actions of Immitt and Lee, both of whom are New York police officers, to have been "under color of law," and the PBA's arguments concerning "respondeat superior," and union privilege - however spurious when advanced on behalf of the union - are, of their own terms, inapplicable to these individual defendants.34
CONCLUSION
For the foregoing reason, Plaintiffs Abner and Micheline Louima respectfully request that the Motion of the PBA et al. to dismiss be denied in its entirety.
Respectfully submitted,
COCHRAN NEUFELD & SCHECK, LLP 99 Hudson Street, 8th Floor New YorJcrNY 10013 (917)2?
By:. PETER J. NEUFELD (2746)
DAVID T. GOLDBERG,ESQ. (0292)
Of Counsel and On the Brief 817 Broadway New York, NY 10003 (212)228-1293
34With respect to Micheline Louima's claims, Count XXV, the Memorandum similarly advances no rationale for dismissal apart from asserting that these stand or fall with her husband's. See jcL at 30. With that proposition Plaintiffs do not disagree, though, for all the reasons already set out, they respectfully submit that the claims must stand.
70

TO: All Counsel List, Below

SANFORD A. RUBENSTEIN, ESQ. Rubenstein & Rynecki 16 Court Street Brooklyn, NY 11241
Attorneys for Plaintiffs

71

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
LOUIMA, et al., Plaintiffs,
-againstTHE CITY OF NEW YORK, et al.,
Defendants.

98 CV 5083 (SJ)(CLP)
AFFIDAVIT OF SERVICE

STATE OF NEW YORK

)

)ss.:

COUNTY OF NEW YORK )

NAOMI FEIN, being duly sworn, deposes and says: I am not a party to this action, am above the age of eighteen (18) years, and reside in New York, New York. On November 8, 2000,1 served the attached Plaintiffs' Memorandum of Law in Opposition to PBA's Motion to Dismiss by handing a true copy thereof, enclosed in an envelope, to a messenger from the Dynamex Messenger Service, and addressed to the following person on behalf of defendants Patrolmen's Benevolent Association of the City of New York, Louis Matarazzo, Patrick Lynch and Michael Immitt at the last known address set forth after the name:

Douglas P. Baumstein, Esq. Kelly Murray & Balber, LLP
516 Fifth Avenue New York, NY 10036

Further, and on the same date, I placed one copy each of afore-mentioned Memorandum of Law in individual envelopes with first class postage, addressed to the persons on the attached "All Counsel List," and placed aforementioned envelopes in ajbofficial receptacle of the United States Postal Service.

Sworn to before me this 8th day ofNovember, 2
NO
QUALIFIED IN KINGS COUNTY COMMISSION EXPIRES JULY 10,2002

NAOMI FEIN

ALL COUNSEL LIST

Corporation Counsel
Lawrence S. Kahn, Esq. Chief Litigating Assistant Corp. Counsel 100 Church St., 6th Fl. New York, NY 10007 Tel: (212) 788-0600 Fax: (212) 788-1664
City of New York William Pagan, Frank Birnbaum
Defendants' Counsel
Thomas M. Laquercia, Esq. 291 Broadway New York, NY 10007 Tel: (212) 227-3333 Fax: (212) 732-5590
Justin Volpe
Matthew R. Kreinces, Esq. Steinberg, Fineo, Berger & Burlant, PC 1001 Franklin Avenue, Suite 302 Garden City, NY 11530 Tel: 516-741-1726 Fax: 516-741-0546
Charles Schwarz
Gregory M. Longworth, Esq. Worth, Longworth, Bamundo & London 111 John Street, Suite 640 New York, NY 10038 Tel: (212) 964-8038 Fax:(212)964-8164
Thomas Bruder .
John D. Patten, Esq. 30 Vesey Street New York, NY 10007 ' Tel: (212) 962-1295 Fax:(212)349-6369
Michael Bellomo

Raymond P. Granger, Esq. Phillips, Lytle, Hitchcock, et al. 437 Madison Avenue, 34th Floor New York, NY 10022 Tel: (212) 508-0442 Fax: (212) 308-9079
Francisco Rosario
Kevin J. Keating, Esq. 666 Old Country Road, Suite 501 Garden City, NY 11530-2004 Tel: (516) 222-1099 Fax: (516) 683-8410
Rolando Aleman
Frederick R. Kessler, Esq. Wollmuth Maher & Deutsch LLP 500 Fifth Avenue New York, NY 10110 Tel: (212) 382-3300 Fax: (212) 382-0050
Peter Blaich, Jeremiah Daly, Joseph O'Brien
John DeBlasio, Esq. 265 Sunrise Highway, Suite 30 Rockville Centre, NY 11570 Tel: 516-678-9797 Fax:516-678-2266
Thomas Wiese
Thomas Puccio, Esq. 230 Park Avenue, Suite 301 New York, NY 10169 Tel: (212) 883-6383 Fax: (212) 883-6388
PBA, Patrick Lynch, Louis Matarazzo

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

3 UNITED STATES OF AMERICA,
4

98 CR 196(S-3)

5

-against-

6 THOMAS BRUDER CHARLES SCHWARZ •
7 THOMAS WIESE,

United States Courthouse Brooklyn, New York

8

Defendants.

9

February 7, 2000

9:30 o'clock a.m.

11 12 APPEARANCES:

TRANSCRIPT OF TRIAL BEFORE THE HONORABLE EUGENE H. NICKERSON
UNITED STATES DISTRICT JUDGE

13 For the Plaintiff: 14 15 16

LORETTA LYNCH United States Attorney . BY: ALAN VINEGRAD, ESQ.
LAUREN RESNICK Assistant United States Attorneys 225 Cadman Plaza East Brooklyn, New York' 11201

17 For the Defendant: 18

STUART LONDON, ESQ. PETER CODDINGTON, ESQ. Attorneys for Thomas Bruder

19

RONALD P." FISCHETTI, ESQ.

MARK L. FREYBERG, ESQ.'

20

Attorneys for Charles•Schwarz

21

JOSEPH TACOPINA ESQi

, .- I

ERIC FRANZ, ESQ.

22

Attorneys for Thomas Wiese.

23 Court Reporter:

Allan R. Sherman, CSR, RPR

225 Cadman Plaza East

24

Brooklyn, New York

718-254-7213

25 Proceedings recorded by mechanical stenography, transcript

produced by CAT.

ALLAN R. SHERMAN, C.H.R., RPR, Official Court Report-sr

837 Burns - direct/Vinegrad

1 not have mentioned the stick or the feces to his partner?

2 A. No.

3 Q. Did Officer Weise at some point during his description of

4 these events describe Officer Volpe in a certain way?

5 A. Yes.

6 Q. What did he say?

7 A. When he -- when Officer Weise was explaining to us what

8 he observed in the bathroom he described Volpe as half a

9 fucking nut. Half a fucking nut.

10 Q. According to Officer Weise, what happened after he and

11 his partner arrived at the hospital?

12 A. Weise describes at the hospital there's officers coming

13 in and they're basically getting triage, which is they're seen

14 by some hospital staff, some nurses, and they get treated and

15 there's paperwork involved. There's a lot of paperwork .

16 involved and Weise describes he is the P.B.A. delegate, union

17 delegate and part of his role is to take care of the officers,

18 make sure the paperwork is done right and that they get proper

19 medical care, that they are treated well by the hospital and

20 whatnot.

21

He.describes as the group of officers are waiting

22 around to be seen by doctors or treated for any injuries

23 they're basically telling war stories and they're shooting the

24 breeze, so to speak.

25 Q. According to Officer Weise, does he have a particular

M. BRYMER, RPR, OCR

o-ao
Burns-direct/Vinegrad
1 conversation with Officer Volpe regarding the events in the 2 station house? 3 A. Yes. 4 Q. Who says what? 5 A. If I may refresh? 6 Q. Yes. 7 A. Weise informs us that Volpe has a conversation with him 8 in the hospital where he basically says to Weise, Tom, I got a 9 little carried away, you know, things like that. He later 10 says that he made a guy shit his pants or he made the guy shit 11 his pants, that's the second guy I made shit his pants. 12 Q. According to Officer Weise, that's what Officer Volpe 13 tells Weise in the hospital? 14 A. In the hospital, correct. 15 Q. What, if anything, does Officer Weise say in response to 16 Officer Volpe, after Volpe tells him I got a little carried 17 away? 18 A. Weise describes having sort of counseled him and said to 19 Volpe maybe you should get off patrol, maybe you shouldn't be 20 dealing with people and go talk to your brother Damion Volpe, 21 who was also at that time a P.B.A. delegate in the 70 22 Precinct, and maybe Damion for whatever contacts he has could 23 get you off patrol where you're not interacting with people. 24 Q. According to Officer Weise, what was Officer Volpe doing 25 after that in the hospital?
M. BRYMER, RPR, OCR

Irani11- direct/Vinegrad

A. Correct.

Q. It was not working on behalf of IAB that's conducting the

investigation, correct?

A. Correct.

Q. You were representing these three defendants; is that

fair?

A. Yes.

8 Q. Now, when did you first learn that IAB was conducting an

investigation into the sexual assault of Abner Louima?

10 A. At the time I learned it I didn't know it was a sexual

11 assault.

12 Q. When did you first learri that IAB was conducting an

13 investigation into an assault of Abner Louima?

14 A. I had gotten a phone call that there was an investigation

15 at the 70.

16 Q. Who did you get that phone call from, sir?

17 A. Thomas Wiese.

18 Q. When was that?

2

19 A. To the best of my recollection, I think it was a Monday.

2

20 I don't know the exact date.

2:

21 Q. You think it was a Monday?

23

22 A. I think.

24

23 Q. What did Officer Wiese say to you and what did you say t<

25

24 him?

25 A. He just told me there was some kind of an investigation

M. BRYMER, RPR, O<

Schwarz-direct/Fischetti

1820

1 that this prisoner is now in the hospital. Yes, that did

2 concern me.

3 Q When you heard about the fact they were looking for

4 sticks, broom sticks, does that mean anything to you at that

5 time?

6 A At that point I assumed that maybe they were

7 investigating that he was beaten with a broke stick or a mop

8 handle.

9 Q Did you leave the precinct after your meal?

10 A Yes.

11 Q Where did you go?

12 A We were assigned to what they call, I believe it was

13 assigned to sensitivity — I would have to look at the memo

14 book to see.

15

But it was a condition we had there were various

16 locations that we were assigned to go and check on. Make sure

17 there is nothing unusual.

18

Locations such as mosques, churches synagogues, I

19 think Brooklyn College was on the list.

20 Q Did you go to Brooklyn college?

21 A Yes.

22 Q Did you make any phone calls at Brooklyn college?

23 A Y e s . ••

24 Q Tell us what phone calls were made and who made them and

25 what was said to the best of your recollection?

Michael Picozzi, RPR, official Court Reporter

Schwarz-direct/Fischetti

1821

1 A To the best of my recollection we drove to Brooklyn

2 College. We were concerned Tommy and I about what we had

3 learned in the precinct. And I parked the car and Tommy said

4 he wanted to call Thomas Bruder to let him now there was an IA

5 investigation related to the arrest we brought in that night.

6 Q Did he tell you why he wanted to call Tommy?

7 A Wanted to let him know there was an investigation going

8 on »

9 Q Did he say anything about being a delegate?

10 A Tommy was a delegate and as a delegate that is part of

11 his responsibilities.

12 Q Does he use your phone card?

13 A Yes, what happened was neither one of us had change so I

14 gave Thomas Wiese my phone call.

15 Q Did you hear his conversation?

16 A No.

17 Q Did you make any phone calls?

18 A Yes.

19 Q Who did you call?

20 A I called Anthony Abbate.

21 Q Who is Anthony Abbate and his relationship to you?

22 A Anthony Abbate is a friend of mine. We worked together

23 in the 70tli- Precinct.

24

Before I got in the anti-crime unit I worked the 4:00

25 to 12:00 shift, which is 3:00 p.m. to I think 11:35 at night.

Michael Picozzi, RPR, Official Court Reporter

Schwarz-direct/Fischetti

1 We worked on the same shift. He was also a PBA delegate for

2 the precinct.

3 Q Why did you call him?

4 A I was very concerned. Anthony is a good friend of mine

5 minimum, a very experienced delegate. I had some concerns I

6 wanted to talk to him about it. I wanted to talk to somebody

7 that was removed from this, that wasn't associated with this

8 in any way that could give me an objective non-biased opinion

9 or viewpoint.

10

And some of the concerns I. had was primarily all

11 those people in Internal Affairs in the precinct obviously

12 thought it had to be something serious.

13

My immediate concern was they were going to place me

14 on modified assignment. Usually when you get placed on

15 modified assignment you work the day tour hours. I was

16 concerned because it would interfere with my responsibilities

17 I had at home.

18

I was also concerned about I had an application in

19 with the Police Department Emergency Service Unit.

20 Q Is that an elite unit?

21 A Yes, within the Police Department they receive a lot of

22 specialized training. I was informed a couple of weeks prior

23 I was going % to have an interview with them.

24

My concerns were, obviously I was concern about the

25 prisoner I brought in was in the hospital.

Michael Picozzi, RPR, Official Court Reporter

**~

I was concerned they would placed me on^modlfy. duty

and interfere with my responsibilities and I was concerned it

was going to affect my interview with emergency services.

Q At that particular point, on August 11th, and the

telephone call with Anthony Abbate, did you have any knowledge

to the extent of Abner Louima's injuries?

A No.

8 Q Did you have any knowledge of the fact that he was

sexually assaulted in the bathroom?

10 A No.

11 Q None whatsoever?

12 A None.

13 Q What, if anything, if you recall did Anthony Abbate say

14 with regard to your conversation with him and your concerns?

15 A He didn't say much. He mainly listened to me and he just

16 said to me: You know, it does sound like it's something

17 serious and that is a serious investigation. And he told me

18 that I should probably seek some type of legal counsel.

19 Q Were you the only person that spoke to Mr. Abbate on that

20 phone call from your phone card?

21 A No.

22 Q Who else did?

23 A After I- spoke to him, Tommy spoke to him.

24 Q Did you hear the conversation between Tommy and

25 Mr. Abbate at that time?

Michael Picozzi, RPR, Official Court Reporter

 
 I

y.

I

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

)

I

ABNER LOUIMA and MICHELINE LOUIMA,

)

)

98 Civ. 5083 (SJ)

Plaintiffs,

)

I

)

-against-

)

)

I

THE CITY OF NEW YORK, et al.,

)

Defendants.

)

I Louima v. City of New York

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• •IB • • ••!•> m «M m «H •

• • • • • • ! • ! •!•• •! • • • ! • •!! ••Ill • ! • ! «•

PN-NY-001-004

I

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS THE THIRD AMENDED COMPLAINT AGAINST

DEFENDANTS THE PATROLMEN'S BENEVOLENT ASSOCIATION

I

OF THE CITY OF NEW YORK, INC., PATRICK LYNCH, LOUIS MATARAZZO, MICHAEL IMMITT AND TIMOTHY LEE

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I LAW OFFICES OF THOMAS P. PUCCIO

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230 Park Avenue New York, New York 10169

Tel: (212)883-6383

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and

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KELLY MURRAY & BALBER LLP 516 Fifth Avenue

New York, New York 10036

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Tel: (212) 704-0500

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I

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TABLE OF CONTENTS

I

TABLE OF AUTHORITIES

iii

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PRELIMINARY STATEMENT

1

STATEMENT OF FACTS

3

I

CAUSES OF ACTION

6

I

ARGUMENT

7

I. PLAINTIFFS' FEDERAL LAW

I

CLAIMS SHOULD BE DISMISSED

8

A. Plaintiffs' Claims Under 42 U.S.C. § 1983

M

Should Be Dismissed For Failure To Plead State Action

9

1. Counts H, VH, XTV And XV

M

Should Be Dismissed Beeccaauus<se

The PBA Is Not A State Actor

9

1

2. Counts XTV And XV Should Be Dismissed Because Plaintiffs Have Not Adequately Alleged That The

PBA Conspired With A State Actor

11

™

B. The Federal Claims Should Be Dismissed

Because The PBA Cannot Be Held

fl

Liable For The Acts Of Its Members

13

I

I. The PBA Does Not Owe A Legal Duty To Third Parties

13

—

2. The PBA Is Not Liable Under

|

A Theory Of Respondeat Superior

17

g

C. Plaintiffs Have Failed To Allege That

|

They Suffered Constitutional Injury As

The Result Of The PBA's Actions

18

1. Counts II And VQ Do Not Allege

Constitutional Injury Caused By The PBA

18

I

I

I

2. Plaintiffs' Counts IX, X And XI

Fail To Plead Injury

20

D. Counts XTV and XV Should Be Dismissed

Because Plaintiffs Fail To Allege That The

PBA's Actions Proximately Caused Plaintiffs' Injuries

21

E. Counts VIII, DC and X Should Be Dismissed For

Failure To Allege That The PBA Acted With Racial Animus

24

F. Plaintiffs' Claim Under 42 U.S.C. § 1986

Because Plaintiffs' Claims Under 42 U.S.C. § 1985 Fail

25

II. PLAINTIFFS' STATE LAW CLAIMS

SHOULD BE DISMISSED

26

A. Count XVI Should Be Dismissed Because Plaintiffs Fail To Plead

Proximate Cause And Because The PBA Owes No Legal Duty

to Plaintiffs

26

B. Count XIX for Infliction of

Emotional Distress Should Be Dismissed

27

1. Plaintiffs' Count XTX for Intentional and Negligent

Infliction of Emotional Distress Is Actually An

Inadequately Pleaded Defamation Claim

27

2. Count XTX Is Time-Barred

29

m. MICHELINE LOUMA'S CLAIMS FAIL

BECAUSE THEY ARE DERIVATIVE

OF ABNER LOUMA'S CLAIMS

30

IV. THE CLAIMS AGAINST THE INDIVIDUAL

PBA DEFENDANTS SHOULD BE DISMISSED

30

CONCLUSION

33

TABLE OF AUTHORITIES

FEDERAL CASES Adams v. Pate. 445 F.2d 105 (7th Cir. 1971) Angola v. Civiletti. 666 F.2d 1 (2nd Cir. 1981) Austin v. Paramount Parks. Inc.. 195 F.3d 715 (4th Cir. 1999)

Pagefs)
18 19 17

Bamum v. Millbrook Care Ltd. Partnership. 850 F. Supp. 1227 (S.D.N.Y. 1994), affd, 43 F.3d 1458 (2nd Cir. 1994) Barr v. Abrams. 810 F.2d 358 (2nd Cir. 1987) Barrow v. Wethersfield Police Dent.. 66 F.3d 466 (2nd Cir. 1995)

8 12,21

as modified. 74 F.3d 1366 (2d Cir. 1996)

30

Canton v. Harris. 489 U.S. 378 (1989)

21

Chahal v. PaineWebber. 725 F.2d 20 (2nd Cir. 1984)

20

Campbell v. Gravline Air Shuttle. Inc.. 930 F. Supp. 794 (E.D.N.Y. 1996)... 29

Darius v. Citv of New York Dep't of Corrections. 1998 WL 724055

(E.D.N.Y. Oct. 13,1998)

7

District of Columbia v. Air Florida. Inc. 750 F.2d 1077 (D.C. Cir. 1984)

7

Deshanev v. Winnebaeo County Dep't of Social Services. 812 F.2d 898

(7th Cir. 1987)

23

Duncan v. AT &T Communications. Inc.. 668 F. Supp. 232 (S.D.N.Y. 1987) 8

Farrell v. Child Welfare Admin.. 77 F.Supp.2d 329 (E.D.N.Y. 1999)

20

Gersten v. Rundle. 833 F. Supp. 906 (S.D. Fla. 1993),

affd, 56 F.3d 1389 (11thCir. 1995)

8

Gierlineer v. Gleason. 160 F.3d 858 (2nd Cir. 1998)

.".

21

Griffin v. Breckenridge. 403 U.S. 88 (1971)

24

Griffin v. Holv. 1996 WL 556969 (N.D.I11. Sep. 26,1996)

...19

I

I

Salsedo v. Palmer. 278 F. 92 (2nd Cir. 1921)

27

I

Serbalik v. Gray. 27 F. Supp.2d 127 (N.D.N.Y. 1998)

12

Shaw v. City of New York. 1997 U. S. Dist. LEXIS 4901

I

(S.D.N.Y. Apr. 15, 1997)

24

Shepherd v. Sanchez. 2000 U.S. Dist. Lexis 10161 at * 8

I

(S.D.N.Y. July 21, 2000)

18

Sheridan v. Andrus. 465 F.Supp. 662 (D.Colo. 1979)

17

I

Silverstein v. Barnes. 1986 WL 4545, (S.D.N.Y. 1986) affd.

798 F.2d 467 (2nd Cir. 1986)

21

I

Singleton v. City of New York. 632 F.2d 185 (2d Cir. 1980),

I

cerLdenied, 450 U.S. 920 (1981)

13

Stagmanv.Rvan. 176 F.3d 986 (7th Cir. 1999)

12

I

Storck v. Suffolk County Dep't of Social Services. 62 F.Supp.2d 927

I

(E.D.N.Y. 1999)

11

Sutton v. Eastern Viavi Co.. 138 F.2d 959 (7th Cir. 1943)

8

I

Thompson v.Boggs. 33 F.3d 847 (7th Cir. 1994)

20

I

Tilton v.Richardson. 6 F.3d 683 (10th Cir. 1993)

24

Treglia v. Town of Manlius. 68 F. Supp.2d 153 (N.D.N.Y. 1999)

28

I

Waldronv.Rotzler. 862 F. Supp. 763 (N.D.N.Y. 1994)

12,24,25

I

Williams v. Citv of New York Dep't of Corrections. 1998 WL 160988

(E.D.N.Y. Mar. 30 1998)

9

I

Wright v. Patrolmen's Benevolent Ass'n. 1975 WL 215 (S.D.N.Y. July 30,1975)

10

Yanez v. Citv of New York. 29 F. Supp.2d 100 (E.D.N.Y. 1998)

24

I

I

I

I

I

I

Hazan v. City of New York. 1999 WL 493352 (S.D.N.Y. 1999)

12

|

Heredia v. United States. 887 F. Supp. 77 (S.D.N.Y. 1995)

22,27

Jones v. Sabis Educational Systems, Inc.. 52 F. Supp.2d 868 N.D. 111. 1999) 17

W

Kadar Corp. v. Millburv. 549 F.2d 230 (1st Cir. 1977)

8

|

Kern v. City of Rochester. 93 F.3d 38 (2nd Cir. 1996)

10,11

Koch v. Mirza. 869 F. Supp. 1031 (W.D.N.Y. 1994)

24,25

Jackson v. Temple University. 721 F.2d 931 (3rd Cir. 1983)

9,11

•

Leeds v. Meltz. 85 F.3d 51 (2nd Cir. 1996)

8

Linda R.S. v. Richard P.. 410 U.S. 614 (1973)

21

™

Lizzi v. National Association of Letter Carriers. 755 F. Supp. 68

(E.D.N.Y. 1991)

15,16,26

•

Mackensworth v. S.S. American Merchant. 28 F.3d 246 (2nd Cir. 1994)

30

I

Martinez v. California. 444 U.S. 277 (1980)

22,23

m

Montefusco v. Nassau County. 39 F. Supp.2d 231 (E.D.N.Y. 1999)

29

People United for Children v. City of New York. 108 F.Supp.2d 275

B

(S.D.N.Y. 2000)

18

Percuoco v. Hampton House Condominium. 765 F.Supp. 149

.

(S.D.N.Y. 1991) affd, 952 F.2d 393 (2nd Cir. 1991)

15,16

Pinaud v. County of Suffolk. 52 F.3d 1139 (2nd Cir. 1995)

13

|

Pitchell v. Callan. 13 F.3d 545 (2nd Cir. 1994)

12

m

Portman v. County of Santa Clara. 995 F.2d 898 (9th Cir. 1993)

24

Reeves v. Continental Equities Corp. of America. 767 F. Supp. 469

m

(S.D.N.Y. 1991)

28,28

Rendell-Bakerv.Kohn. 457 U.S. 830, 838 (1982)

9

I

Romero-Barcelo v. Hemandez-Aeosto. 75 F.3d 23 (1st Cir. 1996)

24

I

I

I

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I

STATE CASES

Bums Jackson Miller Summitt & Spitzer v. Lindner. 59 N.Y.2d 314, 464

I

N.Y.S.2d 712(N.Y.983)

16

City of Newbureh v. Newman. 70 A.D. 2d 362,421 N.Y.S.2d 673

I

(3d Dep't 1979)

16,17

Gill v. Pathmark Stores. Inc.. 237 A.D.2d 563,655 N.Y.S.2d 623

I

(2nd Dep't 1997)

29

Hanlev v. East Moriches Union Free School Dist. II. 712 N.Y.S.2d 617

I

(2nd Dep't 2000)

26

Herlihv v. Metropolitan Museum of Art. 214 A.D.2d 250, 633 N.Y.S.2d

I

106 (1stDep't 1995)

29

Jamur Productions Corp. v. Quill. 51 Misc.2d 501,273 N.Y.S.2d 348

I

(Sup.Ct. N.Y. Co. 1966)

16

O'Reilly v.Nvnex Corp.. 262 A.D.2d 207,693 N.Y.S.2d 13

I

(1st Dep't 1999)

28

Plataniotis v. TWE Advance/Newhouse Partnership. 270 A.D.2d 627

I

N.Y.S.2d 327 (3rd Dep't, 2000)

28

Sheehan v. City of New York. 40 N.Y.2d 496, 387 N.Y.S.2d 92,

I

96 (N.Y. 1976)

22,27

Williams v. Varie Brazilian Airlines. 169 A.D.2d 434 N.Y.S.2d 328

I

(1st Dep't 1991), app. den.. 78 N.Y.2d 854,573 N.Y.S.2d467 (1991) 28

I

White v. International Association of Firefighters. Local 42. 738 S.W.2d 933

(Mo. App. W.D. 1987)

16

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VI

I

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I 42U.S.C. §1983

I

42U.S.C.§1985

I

42U.S.C. §1986

CPLR§ 215(3)

I

Fed. R. Civ. P. 12(b)(6)

STATUTES

Page(s)
passim passim passim
29 25,30

I

Fed.R. Civ.P., 15(c)(2)

N.Y.CAdmin. Code § 12-307(b)

I

New York City Charter, Ch. 18 §434

30 15 14,16

I

MISCELLANEOUS

2AMoore's Federal Practice § 8.17 (6) at 8-109 to 8-110 (2d ed. 1992).... 12

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vu

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

I

)

ABNER LOUTMA and MICHELINE LOUIMA,

)

)

98 Civ. 5083 (SJ)

t

Plaintiffs,

)

-against-

m

THE CITY OF NEW YORK, et al.,

)

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF MOTION

•
TO DISMISS THE THIRD AMENDED COMPLAINT AGAINST

DEFENDANTS THE PATROLMEN'S BENEVOLENT ASSOCIATION

-

OF THE CITY OF NEW YORK, INC., PATRICK LYNCH, LOUIS

J

MATARAZZO, MICHAEL IMMITT AND TIMOTHY LEE

»

Defendants, the Patrolmen's Benevolent Association of the City of New York,

Inc. (the "PBA"), and Patrick Lynch ("Lynch"), Louis Matarazzo ("Matarazzo"), Michael

I

Immitt ("Immitt") and Timothy Lee ("Lee") (collectively, the "Individual PBA

m

Defendants"), respectfully move pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure ("Fed. R. Civ. P.") to dismiss plaintiffs Abner Louima ("Louima") and

m

Micheline Louima's Third Amended Complaint and Jury Demand (the "Complaint" or

•

"Compl.") for failure to state a claim upon which relief may be granted.1

PRELIMINARY STATEMENT

™

The Complaint does not state a viable claim against the PBA or the Individual

M

PBA Defendants. To be sure, it pleads a very real physical injury suffered by Louima

stemming from an act committed by a police officer, on duty and in uniform, within a

*

police precinct facility. But it is there, at least with respect to the PBA, where the

I

1

The PBA notes that it is moving against the Third Amended Complaint pursuant to the order of

Magistrate Judge Pollak dated September 25,2000. However, the PBA has only been served with an

•

unsigned draft "proposed" Third Amended Complaint.

I

I

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Complaint departs from the realm of reality and moves into the area of conjecture,

•

surmise and legal sophistry. Plaintiffs allege that the incident leading to Louima's

injuries is not the result of actions of one depraved individual, but the product of over

I

twenty-five years of policies and customs of the City of New York. Through the

|

expedient of alleging that these policies and customs were developed and maintained at

the "behest and in close conjunction with the PBA," plaintiffs seek to lay responsibility

§

for Louima's injuries on the PBA, the collective bargaining agent for New York City

|

Police Officers. Plaintiffs attempt to buttress this position by alleging that the PBA

should be held accountable for the acts of police officers, committed within the scope of

I

their employment by the New York Police Department. This proposition, in light of the

I

clear language of the City Charter, the New York City Collective Bargaining Law and

principles of agency law, is plainly false and transparently an attempt to blur the lines of

I

responsibility between the employer City and the union, which is chartered to act as an

•

advocate for its membership.

Even according to plaintiffs' allegations, the PBA did not become involved in the

™

facts underlying this case until August 13 ~ the day Louima was released from custody

I

and four days after Louima's physical injuries were sustained, confirming the absence of

any causal link between those injuries and any acts committed by the PBA. Based on

these and other legal infirmities set forth below, plaintiffs have failed to plead adequately

I

a basis of liability against the PBA for physical injuries suffered by Louima or his alleged

—

wrongful detention.

As to the alleged activities of the PBA which post-date Louima's release from

J

custody, the Complaint fails to allege a constitutional injury arising from those actions

|

that would support a claim against the PBA. Louima has had his day in court — six

m

police officers have been convicted of crimes — and his civil action proceeds apace.

Similarly, Louima has not alleged that his relations have been restricted so as to

j[

constitute a violation of his right to free association.

m

In short, all of plaintiffs' claims are inadequately pled as against the PBA. That is

not because Louima did not suffer a serious injury, which he clearly did. It is because

t§

the injuries he suffered are not properly redressed by the federal civil rights laws and

•

because the PBA is not a proper party to this action. Until such time as the legislature

grants the PBA the right to hire, train, supervise, discipline and fire New York City

W

Police Officers, the responsibility for acts such as the one perpetrated upon Louima lie

I

with the City, the police department, and the individual police officer.

STATEMENT OF FACTS

™

For the purposes of a motion to dismiss, we accept as true the allegations in the

M

Complaint. According to the Complaint, on August 9,1997 Louima was arrested outside

the Rendez-Vous nightclub in Brooklyn, New York. Compl. If 4,34. On route to the

*

70th precinct, the patrol car stopped twice and Louima was beaten while police officers

•

are alleged to have hurled racial and ethnic epithets at him. Comp. ff 4, 37. At the

m

precinct, Louima was assaulted and sodomized by defendant Justin Volpe ("Volpe").

Compl. ff 5, 6,41,42.

I

Volpe also is alleged to have threatened to kill Louima and his family if Louima

£

reported the assault. Compl. Iff 9,46. Plaintiffs allege that none of the officers at the

precinct made any effort to stop Louima's assault or to report it to the proper authorities,

f

Compl. t1f 7, 54.

i

i

I

m

It is alleged that, immediately after the assault, Louima was taken to a holding cell

m

where he was lodged before being transported to Coney Island Hospital. Compl. ffl! 10,

63. When Emergency Medical Services was summoned, Louima told the medical

m

technicians what had occurred. Compl. f 11. The technicians are alleged to have delayed

ft

treatment and filed a false report with the intent of assisting the police in covering up the

incident. Compl. tU 11,64.

•

The Complaint further alleges that, from August 9 until August 13, when criminal

ft

charges against Louima were dropped, he was handcuffed to his hospitable bed as he

convalesced. Compl. Tffl 12, 68. Although the New York Police Department's Internal

"

Affairs Bureau had been notified of the assault on August 10, no police officer was

I

questioned until August 13. Compl. ^[ 82. According to the Complaint, this delay created

a "window of opportunity" in which evidence was allegedly removed and cover stories

*

were allegedly created. Compl. ^ 83.

I

After the attack, it is alleged that the PBA attempted to cover-up the incident.

Compl. ff 14,71. On or about August 13,1997, certain officers, including defendants

Volpe, Wiese, Schwarz and Bruder, are alleged to have met with PBA agents who heard

I

incriminating admissions which, according to the Complaint, the PBA agents had an

f

obligation to report. Compl. fH71,72. The PBA and its police officer agents then

allegedly adopted and orchestrated an affirmative strategy of obstruction and

£

falsification, which included helping several of the individual defendants to devise an

A

exculpatory version of what happened. Compl. ffl[ 1,14.

On August 13, four days after the incident, Officer Wiese is alleged to have

m

convened a meeting in the basement of the 70th precinct with Immitt and the officers most

1

I

(

directly implicated in the attack on Louima. Compl. 172. At this meeting, the officers

tk

allegedly concocted a common story and discussed ways to intimidate Louima. Compl. f

72, 73. The Complaint charges that the officers discussed a plan to claim that Louima's

•

injuries resulted from consensual sexual activities. Compl. f 74. Thereafter, Immitt

•

allegedly appeared at the 70th precinct for several days, to urge officers to remain silent

about the incident. Compl. ^ 75. Immitt and Lee (a PBA delegate) purportedly attempted

•

to dissuade officers from coming forward to explain what happened. Compl. 1f 76. The

I

PBA's attempted cover-up of wrongdoing is alleged to be the direct result of its policies,

customs and practices. Compl. If 79.

•

As another prong of the attenuated theory of causation set forth in the Complaint,

I

plaintiffs allege that the City and the PBA, also contributed to the attack on Louima by

maintaining a so-called "code of silence" or "blue wall" which emboldens officers to act

•

violently and assures that otherwise honest officers remain silent or lie about what they

I

know. Compl. fl 15,20. The City's policy of waiting forty-eight hours before

m

questioning police officers accused of wrongdoing (the "48 hour rule") is alleged to be a

contributing factor to the "code of silence." Compl. Tf 16. These policies and practices are

I

alleged to have created an atmosphere where the most violent police officers felt assured

g

that acts of misconduct would not be swiftly and effectively investigated and prosecuted.

Compl. 1184.

|

The Complaint acknowledges that the PBA is a labor union representing

|

approximately 29,000 New York City police officers (Compl. 125), and that the

relationship between the PBA, its members and the City of New York is governed by a

I

collective bargaining agreement and by the rules and regulations of the New York Police

I

I

I

Department ("NYPD" or the "Department") which are set forth in a document known as

M

the "Patrol Guide." Compl. f 25

The Complaint also recites that the Patrol Guide provides that an officer subject to

m

an official administrative investigation must be given two days notice before being

tt

questioned. Compl. 180. Officers who are witnesses to alleged wrongdoing are given

four hours notice before they may be questioned. Compl. f 80. Plaintiffs allege that the

P

City has created a custom of extending the "48 hour rule" to criminal as well as

B

administrative investigations and has granted the PBA a role in deciding who are

witnesses and who are suspects for purposes of invocation of the "48 hour rule" — even

"

for criminal investigations — and that it did so in this case. Compl. ffif 80-82.

•

It is alleged that Lynch and Matarazzo are, respectively, the present and former

i

President of the PBA. Compl. ff 27,28. No other allegation is made against Lynch or

•

Matarazzo except, in the most conclusory terms, they are alleged to have been involved

I

in negligently training, monitoring and supervising PBA representatives. Compl. f 179.

L

CAUSES OF ACTION

Plaintiffs allege twenty-three causes of action, eleven of which are directed at the

I

PBA.

I

* Count II alleges a conspiracy under 42 U.S.C. § 1983 between the PBA and the individual defendants to deprive Louima of his constitutional rights by attempting to

cover up the assault on Louima.

I

• Count VII alleges that the PBA and the individual defendants deprived Louima of his

First and Fourteenth Amendment Rights to have access to, and seek redress in, the

ft

courts as a result of the attempted cover up.

Count Vin alleges a conspiracy with racial animus pursuant to 42 U.S.C. § 1985(3)

I

between the individual defendants and the PBA Ibased on the individual defendants'

use of racial and ethnic epithets toward Louima.

I

I

• Count IX alleges a conspiracy to hinder provision of equal protection pursuant to 42 U.S.C. § 1985(3) as a result of the attempted cover up.
• Count X alleges a conspiracy to impede due course of justice pursuant to 42 U.S.C. § 1985(2) between the individual defendants and the PBA.
• Count XI alleges a conspiracy to obstruct federal justice pursuant to 42 U.S.C. § 1985(2) between the individual defendants and the PBA by trying to deter witnesses from giving testimony in a federal grand jury and in a federal proceeding.
• Count XII alleges that the PBA neglected to prevent a 42 U.S.C. § 1985(3) conspiracy in violation of 42 U.S.C. § 1986.
• Count XTV is stylized as a systemic claim against the City and the PBA. It alleges that the City and the PBA have created an environment that encourages police brutality which led to Louima's rights being violated.
• Count XV alleges a conspiracy pursuant to 42 U.S.C. § 1983 between the City and the PBA to create customs and policies that allow for the most "brazenly brutal officers to believe that they can use excessive force with impunity."
• Count XVI alleges claims for gross negligence and negligence against the PBA, Immitt, Matarazzo and Lynch for failure to perform a purported duty "to make sure that its members and its agents, who are also police officers, do not violate their duties as police officers." (Compl. ^f 180).
• Count XIX alleges intentional and negligent infliction of emotional distress against the PBA, Immitt and Lee for impeding the investigation into Louima's assault and for spreading rumors that Louima suffered injuries as the result of consensual sexual activity.
• Count XXV asserts a pendent claim by Micheline Louima.
ARGUMENT
In deciding a motion to dismiss, the function of this Court is to assess the legal
feasibility of the complaint. See Darius v. City of New York Dep't of Corrections. 1998
WL 724055, *1 (E.D.N.Y. Oct. 13) (Johnson, J.). The complaint must set forth sufficient
information to allow the court to determine if there is any recognized legal theory upon
which relief can be granted. See District of Columbia v. Air Florida. Inc. 750 F.2d 1077,
1078 (D.C. Cir. 1984). The failure to allege any fact connecting defendant to the alleged

I

I

wrong or to allege that any wrong has been committed is fatally defective. See Kadar

I

Corp. v. Millburv. 549 F.2d 230, 233 (1stCir. 1977); Sutton v. Eastern Viavi Co.. 138

F.2d 959 (7th Cir. 1943).

I

While the pleading standard is generally a liberal one, bald assertions and

I

conclusions of law will not suffice. See Leeds v. Meltz. 85 F.3d 51, 53 (2nd Cir. 1996).

If conclusory allegations are not supported by allegations of material facts, the claims are

I

subject to dismissal. See, e ^ , Duncan v. AT &T Communications. Inc.. 668 F. Supp.

I

232, 234 (S.D.N.Y. 1987). Conclusory allegations may also be disregarded if they are

contradicted by other facts alleged, by documents incorporated into the complaint, or by

I

facts that are subject to judicial notice. See, e.g.. Gersten v. Rundle. 833 F. Supp. 906,

I

910(S.D.Fla. 1993), affd, 56 F.3d 1389 (11thCir. 1995) (court need not accept

allegations in complaint when facts alleged in complaint are internally inconsistent);

I

Barnum v. Millbrook Care Ltd. Partnership. 850 F. Supp. 1227,1233 (S.D.N.Y. 1994),

I

affd. 43 F.3d 1458 (2nd Cir. 1994) (allegations may be ignored if contradicted by

documents incorporated in complaint).
I I. PLAINTIFFS' FEDERAL LAW

I

CLAIMS SHOULD BE DISMISSED

I

Plaintiffs assert nine claims against the PBA seeking relief under 42 U.S.C. §§

1983,1985 and 1986. Those claims are set forth in counts II, VII, VIE, IX, X, XI, XII,

I

XTV, and XV of the Complaint. Plaintiffs assert federal claims against Immitt and Lee in

I

counts n, VII, VIII, DC,X, XI and XII.2 All of these claims should be dismissed for

failure to state a claim upon which relief can be granted.

I

I

No federal claims are asserted against Matarazzo and Lynch.

I

A. Plaintiffs' Claims Under 42 U.S.C. § 1983 Should Be Dismissed For Failure To Plead State Action

J[

It is axiomatic that 42 U.S.C. § 1983 only provides remedies for constitutional

,mm

injuries caused by persons who either are state actors or are acting under color of state

law. See Rendell-Baker v. Kohn. 457 U.S. 830, 838 (1982). 42 U.S.C. § 1983 provides,

|

in relevant part, that

§

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects or causes to be subjected,

f

any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights,

«

privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress

M

Accordingly, in order to plead a § 1983 claim, "a plaintiff must allege facts that would

establish that a governmental entity deprived her of a right secured by law." Williams v.

(

Citv of New York Dep't of Corrections. 1998 WL 160988, *2 (E.D.N.Y. Mar. 30,1998)

tt

(Johnson, J.).

1. Counts n,VH, XIV And XV

(

Should Be Dismissed Because The PBA Is Not A State Actor

I

Plaintiffs do not (and cannot) allege that the PBA is a governmental entity.

^

Therefore, in order to assert a § 1983 claim, plaintiffs must allege facts suggesting that

™

the NYPD is responsible for the PBA or that the PBA was acting under color of state law

•

when it engaged in the alleged wrongful conduct set forth in the Complaint. See Jackson

g

v. Temple University. 721 F.2d 931 (3rd Cir. 1983) (affirming district court's dismissal of

§ 1983 action against labor union for public employees and holding that there were no

I

facts alleged that established that the union's actions could be fairly attributable to the

i

i

t

g

state). However, other than the conclusory statement that the PBA was "acting under

£

color of law" (Compl. f % 107,112), no such factual allegations appear in the Complaint.

The issue of whether the PBA is a state actor for purposes of § 1983 has already

g

been decided in the negative. See, e^g., Wright v. Patrolmen's Benevolent Ass'n. 1975

g

WL 215 (S.D.N.Y. July 30, 1975). In Wright, the court granted the defendant union's

motion to dismiss, holding that

Q

although the issue was not raised by any party, any action

arising under... Section 1983 must involve state action . . .

f

. The moving defendants are a labor union and three of its officials. The union is independently funded, operating

separately from the police department, and in no way

t

intertwined with it, except to the extent that its members

are policemen.

|

I&at*l.

Moreover, when officers of a public employee union commit acts in their

9

capacities as union members, they are not acting as state actors for purposes of § 1983.

|

See, e ^ Kem v. Citv of Rochester. 93 F.3d 38 (2nd Cir. 1996). In Kern, plaintiff

employee of the Rochester Firefighter's union, alleged that her superior, the union

™

president ("Cavuoto"), had sexually harassed her on numerous occasions, and thus

•

violated her equal protection rights. Id at 41. Plaintiff alleged that Cavuoto was acting

under color of state law because he was simultaneously employed by the Rochester Fire

"

Department (the "RFD") during the period in which he allegedly harassed her. The

•

district court disagreed, granting defendants' motion to dismiss on the grounds that

g

Cavuoto, although a lieutenant in the RFD during the time in which the alleged

harassment took place, was acting solely in his capacity as union president during the

I

course of his harassment of plaintiff.

I

I

10

|

The United States Court of Appeals for the Second Circuit affirmed, holding that

m

plaintiff "fails to demonstrate that Cavuoto exercised power possessed by virtue of state

law and made possible only because the wrongdoer is clothed with the authority of state

B

law." Id at 43 (internal citations omitted). In support of its conclusion, the Court noted

m

that Cavuoto did not hold his position as union president by virtue of any action of the

city and that he performed functions solely for the benefit of the union, not the city. Id,

•

see also Jackson. 721 F.2d at 932 (holding that union could not be held liable for

•

wrongful termination of public employee under 42 U.S.C. § 1983 because union was not

acting under color of state law).

m

Here plaintiffs fail to allege any "state action" taken by the PBA to deny their

I

rights. Rather, the Complaint asserts that the PBA's agents took part in ^post facto

conspiracy to conceal and cover-up the alleged wrongful conduct perpetrated on Louima.

•

These allegations against the PBA's agents relate to their role as union officials

I

performing necessary union functions such as representing members in connection with

disciplinary proceedings. As in Kem. the mere fact that the PBA's agents happen to also

"

be police officers does not mean that they acted under color of state authority.

I

Accordingly, Counts II, VII, XTV and XV should be dismissed.

1

2. Counts XIV And XV Should Be Dismissed Because Plaintiffs Have Not Adequately Alleged That The

PBA Conspired With A State Actor

I

Private entities that are not state actors may be held liable under § 1983 if they are

I

alleged to have conspired with a state actor. See Storck v. Suffolk County Dep't of

Social Services. 62 F.Supp.2d 927,940 (E.D.N.Y. 1999). However, Plaintiffs'

I
11

allegations in support of Counts XTV and XV of the Complaint do not adequately allege a conspiracy between the PBA and the City sufficient to meet the state actor requirement.
In order to state a conspiracy claim under 42 U.S.C. § 1983, plaintiffs must allege that wrongful conduct (1) was committed by a person acting under color of state law and (2) deprived a person of rights or privileges secured by the Constitution or the laws of the United States. Hazan v. City of New York. 1999 WL 493352 *2 (S.D.N.Y. 1999). citing Pitchell v. Callan. 13 F.3d 545, 547 (2nd Cir. 1994). However, conclusory allegations of conspiracy such as those set forth in the Complaint provide an insufficient basis for § 1983 liability. See Staeman v. Rvan. 176 F.3d 986,1003 (7th Cir. 1999) ("a bare allegation of a conspiracy between private and state entities is insufficient to bring the private entity within the scope of Section 1983"). Rather, to plead a conspiracy under 42 U.S.C. § 1983
plaintiff must allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy. A complaint containing only conclusory, vague or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss. Serbalik v. Gray. 27 F. Supp.2d 127,132 (N.D.N.Y. 1998) (emphasis added) (citations omitted). Moreover, "complaints . . . must include specific allegations of facts showing a violation of rights 'instead of a litany of general conclusions that shock but have no meaning."' See Waldron v. Rotzler. 862 F. Supp. 763 ,768 (N.D.N.Y. 1994) (citing Ban; v. Abrams. 810 F.2d 358, 363 (2nd Cir. 1987)). The plaintiff must provide "details of time and place and the alleged effect of the conspiracy." 2A Moore's Federal Practice § 8.17 (6) at 8-109 to 8-110 (2d ed. 1992).
12

I

I

Here, Plaintiffs' allegations fall far short of stating a viable claim of conspiracy

|

between the PBA and the City. Plaintiffs do not even attempt to allege the existence of

any agreement to develop and maintain "policies and customs exhibiting deliberate

I

indifference to the constitutional rights of citizens" (Compl. ^| 149), let alone to attribute

(

any specificity to the time, place or nature of such agreement. Nor do Plaintiffs

particularize the overt acts allegedly taken by the PBA. Absent a well-pleaded

I

conspiracy, there is no nexus between the acts of the PBA and the acts of the City.

|

Accordingly, the PBA cannot be charged with liability as a state actor under 42 U.S.C. §

1983, and Counts XTV and XV should be dismissed.

I

B. The Federal Claims Should Be Dismissed

Because The PBA Cannot Be Held

I

Liable For The Acts Of Its Members

1. The PBA Does Not Owe

•

A Legal Duty To Third Parties

In Counts XTV and XV, plaintiffs allege that the City and the PBA violated
I

P

Louima's constitutional rights by creating an atmosphere conducive to police brutality.

I

Plaintiffs claim that "practices and customs of the City of New Y o r k . . . have caused

police officers, including the officer defendants in this case, to believe that they can

*

violate the rights of citizens with impunity," (Compl. U167) and that this culture exists

I

"because of, rather than despite, the efforts of the PBA." Compl. 1168.4

g

3

Moreover, to the extent plaintiffs rely on acts of conspiracy that allegedly occurred twenty-five

years ago, such reliance is misplaced. The United States Court of Appeals for the Second Circuit has held

I

that a plaintiff may not base § 1983 conspiracy claims on acts occurring more than three years prior to the

filing of his complaint. See Pinaud v. County of Suffolk. 52 F.3d 1139,1153-4 (2d Cir. 1995); Singleton v.

Citv of New York. 632 F.2d 185 (2d Cir. 1980), cert, denied. 450 U.S. 920 (1981).

I

4

Count XVI sets forth the same allegations in support of plaintiffs negligence claims, asserting that

the PBA's policies and practices negligently "created an atmosphere" where officers believed that

misconduct would not be "effectively investigated and prosecuted." Compl. f 184.

I

I

Plaintiffs allege that the PBA helped to create an atmosphere conducive to police brutality by: (1) promoting the "48 hour rule" as a tool to "assist target officers in conspiring to cover up their crimes," (Compl. f 155, 156); (2) failing to require its delegates to report crimes and misconduct imparted from the targets of investigations, (Compl. |Tf 155, 180); (3) supporting a "code of silence" which hinders police officers from reporting fellow officer's misconduct, (Compl. ff 168-174); (4) using the attorneyclient privilege and delegate-member privilege "to orchestrate cover ups," (Compl. f 172); and (5) requesting that the City "develop[] and maintain[] policies and customs exhibiting deliberate indifference to the constitutional rights of its citizens." Compl. f 149.
However, plaintiffs seek to create a basis for liability against the PBA by conflating the role of the PBA, a collective bargaining agent, with the role of the NYPD, the organization charged with the training and supervising police officers. See New York City Charter Ch. 18 § 434 (stating that the police commissioner "shall have cognizance and control of the government, administration, disposition and discipline of... the police force of the department.").5 By blurring the relationship between the PBA and the City, plaintiffs seek redress against the PBA for injuries that were never contemplated by the civil rights laws or intended to be asserted against private entities. Plaintiffs' claims founder against the PBA because the PBA does not employ police officers, does not control the conduct of police officers, and indeed does not interact with the public. Rather, the PBA is an advocate for the interests of its members and is not legally

5

Additionally, as the New York City Collective Bargaining Law states: "[i]t is the right of the city.

. .to . . . direct its employees; take disciplinary action; . . . [and] determine the methods, means and

personnel by which government operations are to be conductedf.] Decisions of the c i t y . . . on those

matters are not within the scope of collective bargainingf.]" N.Y.C. Admin. Code § 12-307(b).

14

I

responsible to third parties for the actions of its members. S_ee Lizzi v. National

m

Association of Letter Carriers. 755 F. Supp. 68 (E.D.N.Y. 1991) (Nickerson, L).

In Lizzi. plaintiff alleged that the Letter Carriers1 Union (the "Union") was

B

responsible for an act of sexual molestation committed by one of its members. The union

m

member had been arrested for public lewdness, and the Postal Service sought to fire or

transfer him. Id at 68-69. The Union filed a grievance on behalf of the member,

I

resulting in his reinstatement. Id at 69. The plaintiff in Lizzi alleged that the

•

molestation occurred only because the Union permitted the member to come into contact

with plaintiffs daughter.

W

In granting the Union's motion to dismiss, the court held that the Union had a

•

duty to represent its members and that duty required the Union to pursue a grievance on

its member's behalf. Id. The court rejected plaintiffs contention that the union's

•

successful representation of its member could give rise to liability to a third party:

t

it is fatuous to suppose that because [a union successfully asserts and protects the rights of a member] the union

should be liable for injuries thereafter inflicted by the

I

employee on a member of the public. A union is an

•

advocate, riotajudge guarding the interests of putative

I

third persons. It should not be required, at peril of being

held liable at the hands either of the employee or of a third

party, to conclude that the employee's version of the facts is

( e r r o n e o u s or to determine in advance the eventual decision

of the employer or the arbitrator.

^

Jd. (emphasis added). Similarly, in Percuoco v. Hampton House Condominium. 765 F.

Supp. 149,151 (S.D.N.Y. 1991) affd. 952 F.2d 393 (2nd Cir. 1991), the court held that a

I

union could not be held liable for the acts of its member, a security guard, whose

|

negligence allegedly contributed to plaintiffs assault by a third party, where the union

had prevented its member's termination through a successful grievance procedure.
I 15
I

I

I

In short, Lizzi and Percuoco stand for the proposition that a union is not legally

*

responsible for torts committed by its members. Moreover, unions have been held not

liable in tort for actions taken in their capacity as unions (as opposed to their capacity as a

I

business, land-owner, or employer). See Burns Jackson Miller Summitt & Spitzer v.

|

Lindner. 59 N.Y.2d 314, 464 N.Y.S.2d 712 (N.Y. 1983) (Transit workers not liable for

damages caused by their decision to strike); Jamur Productions Corp. v. Quill. 51

I

Misc.2d 501, 273 N.Y.S.2d 348 (Sup.Ct. N.Y. Co. 1966) (same). Courts have extended

•

this rule even when the union's actions affect public safety. See e.g. White v.

International Association of Firefighters. Local 42. 738 S.W.2d 933 (Mo. App. W.D.

*

1987) (holding that firefighters could not be liable in tort for fire damages to property

I

where illegal strike lead to property damage due to fire).

Contrary to plaintiffs' allegations, the PBA does not have a legal duty to "make

•

sure its members and its agents, who are also police officers, do not violate their duties as

I

police officers to report crimes and misconduct by fellow officers." Compl. U 180. That

legal duty resides solely with the City. New York City Charter Ch. 18 § 434. To the

contrary, the PBA is duty bound to maintain the confidences of its members during the

I

course of employer-initiated disciplinary proceedings. See City of Newburgh v.

-

Newman. 70 A.D. 2d 362,421 N.Y.S.2d 673 (3d Dep't 1979).

In City of Newburgh. the Appellate Division held that it was improper for the

I

City to question a PBA official about conversations he had with a police officer

•

concerning disciplinary charges brought against the officer. Id. at 363. The Court held

that such conversations between union representatives and members are confidential and

I

protected against disclosure:

I
16

I

I

To invade that confidentiality tends to inhibit the

employees from seeking the advice of their union

A

representatives as to matters affecting their interest and

I

similarly to deter the representatives from proffering

advice, if sought. Thus, questioning by responsible

f

representatives of an employer as to private internal union

affairs such as events transpiring during discussions

t

relating to the rights of employees in the face of anticipated disciplinary charges interferes with the full measure of the

I

protected right of organization and representation accorded Id 70 A.D.2d abty3t6h5e,4T2a1ylNor.YL.aSw.2.d at 675. Contrary to plaintiffs' allegations, the PBA

I

cannot be held liable for failing to divulge wrongdoing by its members. Rather, PBA

officials owe an obligation to PBA members not to reveal to the police department

P

confessions of wrongdoing.

I

2. The PBA Is Not Liable Under A Theory Of Respondeat Superior

|

In paragraph eighty-four of the Complaint, plaintiffs allege that the PBA is liable

for the acts of individual defendants under the doctrine of respondeat superior. However,

I

in actions brought under 42 U.S.C. § 1983, personal participation is an essential

I

allegation, and the doctrine of respondeat superior is not applicable. See, e.g.. Austin v.

Paramount Parks. Inc.. 195 F.3d 715,727-28 (4th Cir. 1999) (private corporation sued

"

under § 1983 is not subject to respondeat superior liability); Jones v. Sabis Educational

[

Systems. Inc.. 52 F. Supp.2d 868, 878 (N.D. 111. 1999) ("a private corporation is not

vicariously liable under § 1983 for its employees' deprivations of others' civil rights");

Sheridan v. Andrus. 465 F.Supp. 662 (D.Colo. 1979). Rather, to hold a defendant liable

I

under 42 U.S.C. § 1983, whether for money damages or for injunctive relief, the plaintiff

•

must allege that the defendant had individual and personal knowledge of, or affirmatively

participated in conduct constituting deprivation of the plaintiffs constitutional rights. S_eg

17

Shepherd v. Sanchez. 2000 U.S. Dist. Lexis 10161 at * 8 (S.D.N.Y. July 21, 2000) Here, plaintiffs do not allege any PBA involvement in the assault on Louima and do not allege direct conduct by the PBA constituting a deprivation of Louima's constitutional rights.
Moreover, the doctrine of respondeat superior does not apply to a claim brought under 42 U.S.C. § 1985 when the plaintiff seeks money damages, as distinguished from equitable relief. S_ee Adams v. Pate. 445 F.2d 105,107 (7th Cir. 1971). Here, plaintiffs seeks only money damages from the PBA. C. Plaintiffs Have Failed To Allege That
They Suffered Constitutional Injury As The Result Of The PBA's Actions In order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege that he suffered a constitutional injury as the result of defendant's acts. People United for Children v. Citv of New York. 108 F.Supp.2d 275,302 (S.D.N.Y. 2000). Here, plaintiffs do not set forth such allegations against the PBA. Accordingly, Counts n, VH, DC,X and XI should be dismissed
1. Counts II And VII Do Not Allege Constitutional Injury Caused By The PBA
In Counts II and VII of the Complaint, Plaintiffs allege that Louima sustained various constitutional injuries as the result of the PBA's alleged conspiracy to conceal the wrongful acts perpetrated against him. Compl. U1f 94,108. Count II alleges that Louima was deprived of his constitutional rights to be "free from unreasonable seizure, to associate and speak freely, and to have access to and seek redress from the courts." Compl. % 93. In Count VII, plaintiffs allege that the PBA denied Louima's "First and Fourteenth Amendment rights to have access to and seek redress in the courts." Compl. H 107.
18

I

g

According to the Complaint, the assault on Louima took place on August 9, 1997.

m

Compl. % 4. The earliest date on which the PBA is alleged to have become involved in a

supposed cover-up is August 13, 1997. Compl. 172.6 August 13 is also the date on

£

which all charges against Louima were dropped and he was released from incarceration

m

Compl. f 12. Thus, based on plaintiffs' own allegations, none of the alleged wrongdoing

by the PBA could have caused any deprivation of Louima's rights from August 9 to

f|

August 13.

A

Moreover, plaintiffs do not allege that the PBA knew of or contributed to

Louima's arrest. Thus, any injuries allegedly sustained as the result of Louima's

W

"unreasonable seizure" could not give rise to liability against the PBA. Nor did any of

•

the PBA's alleged actions affect Louima's rights to free association. See Angola v.

Civiletti. 666 F.2d 1, 7 (2nd Cir. 1981) (the right to free association is "restricted to

P

relationships having a predominantly political focus"). Furthermore, Louima does not

I

identify any First Amendment forum to which he has been denied access, and plaintiffs'

access to the courts is evidenced by the existence of this case and the criminal

•

convictions of several officers on duty at the 70th precinct that evening. Compl. ^ 3; see

I

Griffin v. Holy. 1996 WL 556969 (N.D.IU. Sep. 26,1996).

In Griffin, the court dismissed § 1983 conspiracy claims in a case in which a

plaintiff alleged that a number of police officers falsified their reports to indicate that

f

plaintiff had shot himself when one of the officers had done so. The plaintiff argued that

,

this cover-up had prevented the plaintiff from seeking effective legal redress. The court

rejected this argument, holding that where a plaintiff "was personally involved in his

6

A former PBA official named Abbate is alleged to have participated in a cover-up at an

unspecified earlier date (Compl. *|[70), but the acts of this alleged former employee, as set forth in the

19

I

arrest... and therefore possesses firsthand knowledge of the facts" a § 1983 conspiracy

I

claim can not survive. Id. at *4; see also Thompson v. Boggs. 33 F.3d 847, 852 (7th Cir.

1994) (affirming dismissal of claim for denial of access to courts where "the facts known

I

to [plaintiff] were sufficient to enable him to promptly file the instant lawsuit"). Counts

I

II and VII fail against the PBA because plaintiffs have not alleged any legally cognizable

injuries resulting from the actions of the PBA.

I

2. Plaintiffs' Counts IX, X And XI

Fail To Plead Injury

I

Counts DC,X and XI also must fail against the PBA. Count DC alleges a

f

conspiracy to hinder equal protection under 42 U.S.C. § 1985(3). Plaintiffs contend that,

in furtherance of this conspiracy, the PBA engaged in a number of acts intended to hinder

'

the investigation into Louima's assault. Compl. 1f 122. Count X alleges a conspiracy

among defendants under 42 U.S.C. § 1985(2) "to impede the due course of Justice [sic] in

New York State." Compl. 1125. Count XI alleges that in violation of 42 U.S.C. §

1985(2), the PBA's agents, including Immitt and Lee, attempted to intimidate and deter

i

witnesses from testifying to federal authorities. Compl-f131,132.

Injury is a requisite element of both § 1985(2) and § 1985(3) claims. See Chahal v. PaineWebber. 725 F.2d 20,23 (2nd Cir. 1984); Farrell v. Child Welfare Admin.. 77

F.Supp.2d 329,332 (E.D.N.Y. 1999). However, here, to the extent plaintiffs seek redress

for acts designed to protect guilty officers from punishment, there is no pleading of injury

to Louima. Rather, "a private citizen lacks a judicially cognizable interest in the

prosecution or non-prosecution of another." Silverstem v. Barnes. 1986 WL 4545, (S.D.N.Y. 1986) affd. 798 F.2d 467 (2nd Cir. 1986) citing. Linda R.S. v. Richard P.. 410

Complaint, can scarcely be imputed to the PBA under any theory of agency.

20

U.S. 614, 619 (1973). Thus, Louima lacks standing to assert claims arising from acts

intended to make it difficult to bring his attackers to justice. Additionally, to the extent

plaintiffs assert claims regarding threats made by Volpe for the purpose of silencing

Louima (Compl. f 9), plaintiffs have not stated a claim against the PBA because they do

not allege that the PBA participated in making any such threats.

D. Counts XTV and XV Should Be Dismissed Because Plaintiffs Fail To Allege That The PBA's Actions Proximatelv Caused Plaintiffs' Injuries

Counts XTV and XV of the Complaint purport to set forth a sprawling conspiracy

between the City and the PBA covering at least twenty-five years of misconduct. Compl.

I

ff 148-177. A court's "first inquiry in any case alleging municipal liability under § 1983

I

is the question whether there is a direct causal link between a municipal policy or custom

and the alleged constitutional deprivation." Canton v. Harris. 489 U.S. 378,385 (1989);

I

Gierlingerv.Gleason. 160 F.3d 858, 872 (2nd Cir. 1998) (holding that in all § 1983 cases

I

"plaintiff must prove that defendant's action was a proximate cause of plaintiffs injury").

Plaintiffs here do not attempt to relate the PBA's alleged wrongful practices to plaintiffs'

•

injuries, instead relying on "a litany of general conclusions that shock but have no

I

meaning." Barr v. Abrams. 810 F.2d 358,363 (2nd Cir. 1987).

.

Plaintiffs' allegations of proximate cause amount to little more than pleading that

the City has allowed an environment to develop in which police brutality is tolerated.

I

That environment is alleged to have permitted, rather than caused the attack on Louima.

i

However, New York Courts have found that merely creating circumstances that occasion

an injury is insufficient to show proximate cause. See Sheehan v. City of New York. 40

N.Y.2d 496,503,387 N.Y.S.2d 92,96 (N.Y. 1976) (holding that bus driver's violation of

21

I

9

abuse resulting in severe injuries for the child. The court addressed whether a "reckless

A

failure by Wisconsin welfare authorities to protect a child from a parent's physical abuse

deprives the child of liberty or property within the meaning of the Fourteenth

•

Amendment," holding that the welfare authorities' failure to take action did not

I

proximately cause the child's injuries. Id at 299. In so holding, the Court stated that

a constitutional tort requires deprivation by the defendant,

I

and not merely a failure to protect the plaintiff from a

danger created by others. * * * [Deprivation in the

constitutional sense requires more than a minimal or

I

fictitious causal connection between the action of the state

and the injury of the plaintiff.

I

14302-303.

Here, Louima fails to allege any direct causal link between acts committed by the

"

PBA and his injuries, instead relying on the identical theories of "injury to the public at

I

large" rejected by the courts in Martinez and Deshanev. For example, in paragraph 174

_

of the Complaint, plaintiffs allege that "as a direct and proximate result of the City's and

PBA's policies and their deliberate indifference, defendants violated Mr. Louima's

I

constitutional rights[.]" Similarly, paragraph 177 alleges that "[t]his conspiracy between

•

the City and the PBA is ultimately responsible for, and the direct and proximate cause of

the violation of Abner Louima's rights[.]" Plaintiffs' contentions against the PBA are

I

utterly bereft of connection to the alleged assault in this case. Plaintiffs do not contend

I

that the PBA encouraged, participated in, or set in motion the attack on Louima. Instead,

plaintiffs merely allege in the most general terms that the acts of the PBA created an

I

atmosphere in which the attack on plaintiff could take place. This pleading of

I

I

I

"atmospheric causation" is far removed from the pleading of a concrete chain of events that proximately caused an injury to plaintiffs.7
E. Counts VIII, IX and X Should Be Dismissed For
Failure To Allege That The PBA Acted With Racial Animus
Counts VIII and IX plead the "cover-up" allegations as violations of 42 U.S.C. §
1985(3), and Count X casts those same allegations as violative of 42 U.S.C. § 1985(2).
However, to state a claim for a violation of 42 U.S.C. § 1985(3), or to state a claim of
impeding justice in state courts under § 1985(2), the plaintiff must allege that the
defendant acted with racial animus or with other class-based, invidiously discriminatory motive. See Tilton v. Richardson. 6 F.3d 683,686 (10th Cir. 1993), citing Griffin v.
Breckenridge. 403 U.S. 88, 101-02 (1971); Romero-Barcelo v. Hernandez-Agosto. 75 F.3d 23, 34 (1st Cir. 1996); Kochv.Mirza. 869 F. Supp. 1031,1038 (W.D.N.Y. 1994); Portman v. County of Santa Clara. 995 F.2d 898,909 (9th Cir. 1993) (holding that in
order to plead a violation of impeding state court justice under 42 U.S.C. 1985 (2)
plaintiff must plead racial or other class-based animus). Such allegations must be
pleaded with specificity. Waldron v. Rotzler. 862 F. Supp. 763, 769 (N.D.N.Y. 1994).
Here, plaintiffs set forth no facts suggesting that the PBA acted with any racial or
class-based animus against plaintiff. The only incident of racial animus identified in the
complaint is the alleged use of racial epithets by officers during the assault on Louima.
Compl. U 43. Such action precedes any alleged involvement by the PBA and is alleged to
It should also be noted that plaintiffs' reliance upon the Mollen Commission Report (Compl., Count XTV,ffi[152,164,169) to prove allegations of conspiracy between the City and the PBA is misplaced. Federal courts in New York have made clear that the Mollen Report deals only with alleged Police Department toleration of corruption, not toleration of brutality. SSS Shaw v. Citv of New York. 1997 U. S. Dist. LEXIS 4901 (S.D.N.Y. April 15,1997) (citing cases, and holding the Mollen Commission Report inadmissible in a § 1983 case involving allegations of excessive forced: see also Yanez v. Citv of New York. 29 F. Supp.2d 100,111-12 (E.D.N.Y. 1998) (Mollen Commission Report deals only with a "wall of silence" protecting corruption in the police force, not other types of police misconduct).
24

I

•

have been uttered by uniformed police officers acting as agents of the NYPD. Id. The

f

only allegation of racial animus by the PBA is the naked assertion that "the PBA, through

its agents, was a willful participant in joint action with officers acting under color of

H

law." Compl. f 117. This conclusory allegation falls well short of the specific pleading

H

necessary to sustain a claim of racial animus. £ee Waldron, 862 F. Supp. 763, 769

(N.D.N.Y. 1994) (noting that under a related statute "the events of the intentional and

H

purposeful discrimination, as well as the racial animus constituting the motivating factor

M

for the defendant's actions must be specifically pleaded in the complaint to withstand

dismissal under Rule 12(b)(6)'\ Because no specific allegations of racial animus are

M^

directed at the PBA, these claims must be dismissed.

R

F. Plaintiffs Claim Under 42 U.S.C. § 1986 Because Plaintiffs' Claims Under 42 U.S.C. § 1985 Fail

•

Count XH is brought under 42 U.S.C. § 1986 which requires that plaintiff first set

forth a viable claim under § 1985. Koch v. Mirza. 869 F. Supp. 1031,1039 (W.D.N.Y.

^

1994) (citing cases). Because plaintiffs have not pleaded a valid claim under 42 U.S.C. §

flj

1985, their claim under 42 U.S.C. § 1986 must be dismissed.

1 1 I I I I

II. PLAINTIFFS' STATE LAW CLAIMS SHOULD BE DISMISSED
A. Count XVI Should Be Dismissed Because Plaintiffs Fail To Plead Proximate Cause And Because The PBA Owes No Legal Duty to Plaintiffs Count XVI of the Complaint alleges negligence and gross negligence against the
PBA, Lynch, Matarazzo and Immitt. These claims require that plaintiffs allege a duty owed to them by the defendant and that the breach of that duty proximately caused the injury. See Hanlev v. East Moriches Union Free School Dist. II. 712 N.Y.S.2d 617 (2nd Dep't 2000). Like Counts XTV and XV of the Complaint, Count XVI alleges that the PBA "created an atmosphere" that led to Louima's assault. Compl. TJ184. As set forth in Point I., D supra, these claims fail because the PBA's alleged acts are too remote from plaintiffs' injuries to establish proximate cause. Moreover, under the principles delineated in Lizzi. the PBA is not responsible to members of the general public for the torts of New York City police officers.
Plaintiffs allege that the PBA, Lynch, Matarazzo and Immitt were negligent in training, supervising and monitoring those of its representatives who consult with and counsel police officers suspected of criminal acts, or officers who witness criminal acts by other officers. Compl. 1179. According to the Complaint, the PBA and the Individual PBA Defendants have a duty to ensure that PBA members report crimes by other officers, and the PBA and the Individual PBA Defendants have been negligent in the training they give to police officers in that regard. Compl. ^ 180-81. Furthermore, plaintiffs allege that the PBA and the Individual PBA Defendants knew or should have known that the PBA's practices and policies have contributed to concealment of criminal acts by police officers and thus obstructed the investigations of officers. Compl. f 182-
26

I

£

83. The PBA and the Individual PBA Defendants allegedly helped create an atmosphere

m

in which violent officers felt their criminal acts would not be investigated or prosecuted.

Compl. 1184.

|

Plaintiffs' negligence allegations parallel their "systemic claim" that the PBA

•

created an atmosphere that made it easier for police brutality to flourish. However,

plaintiffs fail to link any of these activities to the circumstances surrounding Louima's

I

injuries. As demonstrated in the cases set forth above, proximate cause requires more

I

than establishing that a defendant's actions "occasioned" the circumstances that led to an

injury. See Sheehan. 40 N.Y.2d at 503; Heredia. 887 F. Supp. at 83. Proximate cause

I

requires a direct link between the negligent action and the injury. Salsedo v. Palmer. 278

I

F. 92, 95 (2nd Cir. 1921). Plaintiffs have not pleaded that link here and consequently

Count XVI should be dismissed.

I

A. Count XIX for Infliction of

Emotional Distress Should Be Dismissed

>

Plaintiffs' Count XIX for intentional infliction of emotional distress against the

j

PBA, Immitt and Lee fails because it is time-barred and because it is actually a claim for

i
defamation, artfully pleaded as a claim for infliction of emotional distress.

1. Plaintiffs'Count XIX for Intentional and Negligent Infliction of Emotional Distress Is Actually An Inadequately Pleaded Defamation Claim

Count XIX fails to state a claim for infliction of emotional distress and must be

dismissed. Plaintiffs allege that the PBA, Immitt, and Lee caused emotional distress to

Louima by preventing the exposure of Louima's assault. Compl. 1 205. Plaintiffs allege

that the PBA caused emotional distress by spreading a false rumor that Louima had

27

I

incurred his injuries through consensual sexual activity. Compl. 1206. As a result,

|

plaintiffs contend, Louima endured "humiliation and ridicule." Compl. Tf206.

Plaintiffs' claim that Louima was emotionally upset as the result of the PBA's

I

efforts to conceal his assault, fails to state a claim for intentional infliction of emotional

|

distress. In order to state a claim for intentional infliction of emotional distress, a

plaintiff must allege extreme or outrageous conduct, intent to cause severe emotional

I

distress, a causal connection between the conduct and plaintiffs injury, and severe

I

emotional distress. £ee Treelia v. Town of Manlius. 68 F. Supp.2d 153,160 (N.D.N.Y.

1999). Here, under plaintiffs' own theory, the alleged conduct was taken to protect the

™

defendants rather than distress the plaintiff. Thus, plaintiffs' have not alleged intent

I

against the PBA.

The second basis of plaintiffs' claim for infliction of emotional distress is the

™

spreading of a false rumor to cause Louima humiliation and ridicule. Compl. ^ 206. The

I

making of a false statement to expose someone to "public contempt, ridicule, aversion or

disgrace" creates a cause of action for libel or defamation. Plataniotis v. TWE

Advance/Newhouse Partnership. 270 A.D.2d 627, 628, 704 N.Y.S.2d 327,331 (3rd Dep't,

I

2000). However, plaintiffs nowhere plead the particulars of when the statement was

.

made, by whom, to whom, or exactly what was said. All these particulars must be set

forth in a defamation claim. See Williams v. Varig Brazilian Airlines. 169 A.D.2d 434,

I

564 N.Y.S.2d 328, 330 (1stDep't 1991), app. den.. 78 N.Y.2d 854, 573 N.Y.S.2d 467

•

(1991) (defamation claim defective for lack of identification of to whom statement was

I

Plaintiffs do not attempt to plead that the PBA negligently inflicted emotional distress. In order to

•

allege negligent infliction, the plaintiff must allege that the defendant owed a special duty to him.

O'Reillvv.NvnexCorp.. 262 A.D.2d 207,208, 693 N.Y.S.2d 13,14-15 (1"Dep't 1999). Plaintiffs have

I

not done so here and consequently do not state a claim for negligent infliction of emotional distress.

I

I

I

made); Reeves v. Continental Equities Corp. of America. 767 F. Supp. 469, 473

|

(S.D.N.Y. 1991) (dismissing defamation complaint for failure to plead when statement

was made, who made it, or to whom it was made); Gill v. Pathmark Stores. Inc.. 237

I

A.D.2d 563, 655 N.Y.S.2d 623, 624-25 (2nd Dep't 1997) (defamation complaint fatally

I

defective because it failed to set forth the actual words spoken and did not specify to

whom the words were published). Moreover, a cause of action for intentional infliction

I

of emotional distress must be dismissed where "it falls in the ambit of other traditional

I

tort liability," such as defamation. Herlihv v. Metropolitan Museum of Art. 214 A.D.2d

250,263, 633 N.Y.S.2d 106 (1stDep't 1995). Because plaintiffs' cause of action for

'

infliction of emotional distress is actually an inadequately pleaded cause of action for

I

defamation, it must be dismissed.

2. Count XIX Is Time-Barred

'

Count XIX is time-barred and must be dismissed. Defamation and intentional

I

infliction of emotional distress each have a one-year statute of limitations in New York.

.

See CPLR § 215(3) (one-year statute of limitations for defamation); Montefusco v.

Nassau County. 3 9 F. Supp.2d 231,238 (E.D.N.Y. 1999) (one year statute of limitations

I

for intentional inflection of emotional distress); Campbell v. Gravline Air Shuttle. Inc..

I

930 F. Supp. 794, 803 (E.D.N.Y. 1996) (same). Plaintiffs do not allege when the false

rumor was spread by defendants. Yet allegations of spreading false rumors about Louima

(

were not raised by plaintiffs against the PBA until service of the Second Amended

I

Complaint, dated June 27,2000.

No direct or indirect allegation of emotional distress was alleged in the original

I

complaint or the First Amended Complaint against the PBA. Thus, Plaintiffs waited

29

more than two and a half years after August 9, 1997 before pleading for the first time the PBA's responsibility for the rumor.9
This belated pleading of PBA involvement in spreading false rumors about Louima is invalidated by the one-year limitations period applying to defamation and intentional infliction alike. Accordingly, Count XIX of the Complaint should be dismissed.
i n . MICHELINE LOUIMA'S CLAIMS FAIL BECAUSE THEY ARE DERIVATIVE OF ABNER LOUIMA'S CLAIMS
Count XXV of the Complaint is a derivative claim brought by Micheline Louima based on the injuries suffered by her husband. Because the PBA has no legal duty to Louima, did not proximately cause any of his injuries and is not responsible for the deprivation of any of Louima's rights, this claim must be dismissed against the PBA and the Individual PBA Defendants.
IV. THE CLAIMS AGAINST THE INDIVIDUAL PBA DEFENDANTS SHOULD BE DISMISSED
Even given the liberal pleading standards of Fed. R. Civ. P. 12(b)(6), plaintiffs
have wholly failed to allege a claim against Lynch and Matarazzo. The sole factual
allegation in the Complaint against Matarazzo is that "in his official capacity, [he] was at
relevant times, the President of the PBA." Compl. f 27. The only allegation against
Lynch is that "in his official capacity, [he] is the current President of the PBA." Compl. ^f
Count X K does not relate back, for statute of limitations purposes, to the filing date of the original complaint because the alleged facts on which the count is based do not arise out of the same conduct, transaction or occurrence originally pleaded against the PBA. Ss£ Fe(^ R- Civ. P., 15(c)(2); Mackensworth v. S.S. American Merchant 28 F.3d 246, 251-52 (2pd Cir. 1994). Also, under Barrow v. Wethersfield Police Dept. 66 F.3d 466,468-70 (2nd Cir. 1995), as modified. 74 F.3d 1366 (2nd Cir. 1996), plaintiffs may not belatedly add new defendants on a claim merely because plaintiffs did not identify the new defendants in a timely fashion.
30

I

I

28. Plaintiffs do not set forth what acts Lynch and Matarazzo are alleged to have

k

committed that would give rise to liability. Lynch and Matarazzo are named only in

;

Count XVI of the Complaint, plaintiffs' negligence claim. Because the PBA does not

I

owe a duty to plaintiffs, its president acting in his official capacity owes no greater duty.

|

See point II, A supra.10 Accordingly, the Complaint should be dismissed as against

Matarazzo and Lynch.

I

For their part, Immitt and Lee are alleged to have played a role in the so-called

I

cover up. Compl. f 71-86. Immitt is alleged to have attended the August 13 meeting in

the basement of the 70th Precinct. Compl. f 72. Plaintiffs do not allege what specific

I

actions Immitt engaged in during that meeting. Thereafter, Immitt is alleged to have

I

appeared at roll calls for the 70th Precinct in an effort to urge officers to remain silent in

response to the investigator's inquiries. Compl. If 75. In conclusory fashion, plaintiffs

1

allege that Immitt and Lee sought to deter individual officers from coming forward, to

I

intimidate any officers who did come forward and to publicize to the perpetrators and

other police officers the names of individuals thought to be cooperating with the

-

investigation. Compl. Tf 76. Immitt is later alleged to have invoked a privilege

I

concerning communications with union members. Compl. 1(77.

Plaintiffs' claims against Immitt and Lee should be dismissed for the reasons set

forth in Points I through HI above. Because plaintiffs did not suffer any injury

I

cognizable under 42 U.S.C. §1983 et. seq., Counts n, VII, VIE, DC, X and XI should be

•

dismissed against Immitt and Lee. (See Point I. C, supra). Additionally, plaintiffs do not

allege racial animus against either Immitt or Lee. Consequently, Counts VET, DC and X

I

10

Additionally, Lynch's negligence could not have caused Louima's injuries because Lynch only

•

became President of the PBA on July 1,1999, almost two years after the assault on Louima.

I

should be dismissed. (See Point I. E, suprai Because the § 1985 claims fail against

|

Immitt and Lee, the § 1986 claim must be dismissed. (See Point I. F, supra). Finally,

plaintiffs' state law claims in Counts XVI and Count XIX and Micheline Louima's

derivative claim in count XXV fail against Immitt and Lee for the reasons set forth in

g

Points II and III, supra.

j

CONCLUSION

For the foregoing reasons, the PBA, Lynch, Matarazzo, Immitt and Lee

respectfully request that the Complaint be dismissed with prejudice.

LAW OFFICES OF THOMAS P. PUCCIO

By:_ Thomas P. Puccio (TP-8403)

230 Park Avenue New York, New York 10169
Tel: (212)883-6383

and

1

KELLY MURRAY & BALBER LLP

Michael T. Murray (MT-4994)

1

Scott S. Balber (SB-5807) Douglas P. Baumstein (DB-1948)

1

516 Fifth Avenue New York, New York 10036

Tel: (212) 704-0500

1

Attorneys for the Patrolmen's

Benevolent Association of the City

1

of New York, Inc., Patrick Lynch, Louis Matarazzo, Michael Immitt, and Timothy

Lee
1

1

1

32

 
 Page 1 of 60

U.S. District Court Eastern District of New York, Brooklyn (Brooklyn) CIVIL DOCKET FOR CASE #: 1:98-cv-05083-SJ-CLP

Louima, et al v. City of New York, et al Assigned to: Senior-Judge Sterling Johnson, Jr Referred to: Magistrate-Judge Cheryl L. Pollak Demand: $0 Cause: 42:1983 Civil Rights Act

Date Filed: 08/06/1998 Date Terminated: 07/31/2001 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Abner Louima

represented by Barry C. Scheck Cochran Neufeld & Scheck, LLP 99 Hudson Street, 8th Floor New York, NY 10013 212-965-9081 Fax: 212-965-9084 Email: evaca@innocenceproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Johnnie L. Cochran, Jr. Cochran Neufeld & Scheck, LLP 99 Hudson Street New York, NY 10013 (917) 237-0338 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Peter Jon Neufeld Cochran Neufeld & Scheck, LLP 99 Hudson Street, 8th Floor New York, NY 10013 212-965-9380 Fax: 212-965-9084 Email: p4justice@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Micheline Louima

Sanford A. Rubenstein Rubenstein & Rynecki 16 Court Street, Suite 1717 Brooklyn, NY 11241 718-522-1020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Barry C. Scheck

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Page 2 of 60

V. Defendant City of New York (City)
Defendant New York City Police Department (NYPD) Defendant Patrolmen's Benevolent Association of the City of New York

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Johnnie L. Cochran, Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter Jon Neufeld (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sanford A. Rubenstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Georgia Mary Pestana Office of the Corporation Counsel Labor and Employment Law Division 100 Church Street New York, NY 10007 212-788-0862 Fax: 212-788-0940 Email: gpestana@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence S. Kahn Office of the Corporation Counsel Law Department 100 Church Street New York, NY 10007 788-0600 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber Kelly, Murray & Balber, L.L.P.

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

1/2/2007

Page 3 of 60

(PBA), individually and in their official capacity as New York City Police Officers Defendant Justin Volpe
Defendant Charles Schwarz

516 Fifth Avenue New York, NY 10036 (212) 704-0500 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) TERMINATED: 08/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvyn M. Kornberg Maryvn M. Kornberg 125-10 Queens Blvd Kew Gardens, NY 11415 (718) 261-4400 Fax: 718-261-0250 Email: cmpopa@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Laquercia Smith & Laquercia, P.C. 291 Broadway, Suite 1602 New York, NY 10007 (212) 227-3333 Fax: 212-732-5590 Email: tlaquercia@smithlaquercia.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Laquercia (See above for address) ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) TERMINATED: 08/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald P. Fischetti 950 Third Avenue Suite 3200 New York, NY 10022 (212) 593-7100 Fax: 212-758-2809

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1/2/2007

Defendant Thomas Bruder
Defendant Sergeant Michael Bellomo
Defendant Sergeant Jeffrey Fallon

Page 4 of 60
Email: rfischetti@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen C. Worth Worth Longworth Bamundo & London 111 John Street suite 640 New York, NY 10038 (212) 964-8038 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory M. Longworth Worth, Longworth, Bamundo & London, LLP 111 John Street Suite 640 New York, NY 10038-3498 (212) 964-8038 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John D. Patten John D. Patten, Esq. 30 Vesey Street, PH Suite New York, NY 10007 212-962-1295 Fax: 212-349-6369 Email: johnpatten@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter J. Blessinger Cerrone & Geoghan 30 Vesey St. New York, NY 10007 212-349-5494 Fax: 212-349-6369 LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

1/2/2007

Page 5 of 60

Defendant Francisco Rosario
Defendant Rolando Aleman
Defendant Captain William F. Walsh
Defendant Inspector Jeremiah Quinlan individually, in his official capacity as a New York City Police Officer, and as a PBA Delegate Defendant Thomas Wiese in his official capacity as President of the PBA

represented by Raymond Granger 757 Third Avenue 7th Floor New York, NY 10017 212- 688-1669 Fax: 212-688-1929 Email: rgranger@rgranger.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin James Keating Law Office of Kevin J. Keating 666 Old Country Road Garden City, NY 11530 (581) 222-1099 Fax: (516) 683-8410 Email: kevin@kevinkeatinglaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John W. DeBlasio Law Offices of Stephen Civardi, PC 265 Sunrise Highway, Suite 30 Rockville Centre, NY 11570 (516)678-9797 Fax: (516)678-2266 Email: jdlawjd@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Tacopina Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP 233 Broadway, 18th Floor

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

1/2/2007

Page 6 of 60

Defendant Louis Matarazzo individually and in their official capacity as employees of the Emergency Medical Service (EMS) for the City of New York
Defendant William Pagan
Defendant Frank Birnbaum individually, and in their official capacity as New York City Police Officers, and in their official capacity as agents of the PBA

New York, NY 10279 Fax (212) 406-2313 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Tacopina Law Offices of Joseph Tacopina, P.C. 275 Madison Avenue New York, NY 10016 (212) 227-8877 Fax: 212-619-1028 Email: tportesy@tacopinalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio Law Offices of Thomas P. Puccio 230 Park Avenue Suite 301 New York, NY 10169 212-883-6383 Fax: 212-883-6388 Email: tpuccio@lotpp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Georgia Mary Pestana (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Georgia Mary Pestana (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence S. Kahn

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

1/2/2007

Page 7 of 60

Defendant Michael Immitt
Defendant Marcella Makebish
Defendant Patrick O'Sullivan individually and in their official capacity
Defendant John Does police officers and non-uniformed employees of the New York Police Department, the identity and number of whom is presently unknown; individually and in their official capacity as New York City Police Officers

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michael T. Murray Kelly Murray & Balbar LLP 516 Fifth Avenue New York, NY 10169 (212) 704-0500 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gerald J. McMahon Law Office of Gerald J. McMahon 67 Wall Street New York, NY 10005 (212) 797-1877 Fax: (212) 797-1419 Email: info@geraldjmcmahon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Drew Simon Simon & Partners LLP 30 Rockefeller Plaza 42nd floor New York, NY 10112 212-332-8900 Fax: 212-332-8909 Email: bradsimon@simonlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman 950 Third Avenue 32nd Floor New York, NY 10022 (212) 355-7711 TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

1/2/2007

Page 8 of 60

Defendant Richard Roes supervisory police officers of the City of New York, the identity and number of whom is presently unknown; and individually and in their official capacity as police officers and/or agents for the PBA Defendant William Woes agents for the PBA, the identity and number of whom is presently unknown
Defendant Timothy Lee in their official capacities as President of the PBA
Defendant Estate of Carl Thomas Interested Party Casilda E. Roper-Simpson
Defendant Peter Blaich individually, in his official capacity as a New York City Officer and as a PBD Delegate

represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenechukwu Chudi Okoli K.C. Okoli, Attorney at Law 330 Seventh Avenue 15th Floor New York, NY 10001 (212) 564-8152 Fax: (212) 268-3443 Email: kcokoli@verizon.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler Wollmuth Maher & Deutsch LLP 500 Fifth Avenue New York, NY 10110 212-382-3300 Fax: 212-382-0050

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Page 9 of 60

Defendant P.O. Joseph O'Brien individually, in their official capacity as New York City Police Officers, and as PBA Delegates
Defendant P.O. Jeremiah Daly individually, in their official capacities as New York City Officers, and as PBA Delegates.
Defendant Patrick Lynch individually, and in their official capacity as agents of the PBA
Defendant Anthony Abbate individually and in their official capacity as employees of the Emergency Medical Service (EMS) for the City of New York.
Cross Claimant Peter Blaich

Email: fkessler@wmd-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Lloyd Brounstein Papa, DePaola & Brounstein 42-40 Bell Blvd., Suite 500 Bayside, NY 11361 718-281-4000 Fax: 718-281-4030 Email: sbpdb@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

1/2/2007

V. Cross Defendant William Woes
Cross Defendant Richard Roes
Cross Defendant John Does
Cross Defendant Patrick O'Sullivan
Cross Defendant Marcella Makebish
Cross Defendant Michael Immitt

Page 10 of 60
Steven Lloyd Brounstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Drew Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gerald J. McMahon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence J. Zweifach Heller Ehrman LLP Times Square Tower Seven Times Square New York, NY 10036 212-832-8300 Fax: 212-763-7600 LEAD ATTORNEY

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

1/2/2007

Cross Defendant Frank Birnbaum
Cross Defendant William Pagan
Cross Defendant Louis Matarazzo
Cross Defendant Thomas Wiese
Cross Defendant Inspector Jeremiah Quinlan
Cross Defendant Captain William F. Walsh
Cross Defendant

Page 11 of 60
ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph Tacopina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Tacopina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

1/2/2007

Rolando Aleman
Cross Defendant Francisco Rosario
Cross Defendant Sergeant Jeffrey Fallon
Cross Defendant Sergeant Michael Bellomo Cross Defendant Thomas Bruder

Page 12 of 60
represented by Edward P. Jenks 332 Willis Avenue Mineola, NY 11501 516-741-2920 Fax: 516-747-3136 Email: jenksesq@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin James Keating (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Raymond Granger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Ware Levitt Law Offices of Richard W. Levitt 148 E. 78th Street New York, NY 10021 212-737-0400 Fax: 212-396-4152 Email: rlevitt@richardlevitt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter J. Blessinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John D. Patten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John W. DeBlasio Worth, Longworth, Bamundo &

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Page 13 of 60

Cross Defendant Charles Schwarz
Cross Defendant Justin Volpe
Cross Defendant Patrolmen's Benevolent Association of the City of New York

London, LLP 111 John Street Suite 640 New York, NY 10038-3498 fax (212) 964-8164 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) TERMINATED: 08/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald P. Fischetti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen C. Worth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) TERMINATED: 08/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvyn M. Kornberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Laquercia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Laquercia (See above for address) ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY

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Page 14 of 60

Cross Defendant New York City Police Department Cross Defendant City of New York
Cross Defendant P.O. Joseph O'Brien
Cross Defendant P.O. Jeremiah Daly
Cross Defendant Patrick Lynch
Cross Defendant Anthony Abbate Cross Defendant Timothy Lee
Cross Claimant

ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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P.O. Jeremiah Daly
V. Cross Defendant Peter Blaich
Cross Defendant William Woes
Cross Defendant Richard Roes
Cross Defendant John Does
Cross Defendant Patrick O'Sullivan
Cross Defendant Marcella Makebish

Page 15 of 60
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Lloyd Brounstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Drew Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gerald J. McMahon (See above for address) LEAD ATTORNEY

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Cross Defendant Michael Immitt
Cross Defendant Frank Birnbaum
Cross Defendant William Pagan
Cross Defendant Louis Matarazzo
Cross Defendant Thomas Wiese
Cross Defendant Inspector Jeremiah Quinlan
Cross Defendant

Page 16 of 60
ATTORNEY TO BE NOTICED
represented by Lawrence J. Zweifach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph Tacopina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Tacopina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Captain William F. Walsh Cross Defendant Rolando Aleman
Cross Defendant Francisco Rosario
Cross Defendant Sergeant Jeffrey Fallon
Cross Defendant Sergeant Michael Bellomo Cross Defendant Thomas Bruder

Page 17 of 60
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Edward P. Jenks (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin James Keating (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Raymond Granger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Ware Levitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Peter J. Blessinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John D. Patten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John W. DeBlasio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Page 18 of 60

Cross Defendant Charles Schwarz
Cross Defendant Justin Volpe
Cross Defendant Patrolmen's Benevolent Association of the City of New York Cross Defendant New York City Police Department Cross Defendant City of New York

represented by Lawrence S. Kahn (See above for address) TERMINATED: 08/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald P. Fischetti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen C. Worth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) TERMINATED: 08/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvyn M. Kornberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Laquercia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Laquercia (See above for address) ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn

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Cross Defendant P.O. Joseph O'Brien
Cross Defendant P.O. Jeremiah Daly
Cross Defendant Patrick Lynch
Cross Defendant Anthony Abbate Cross Defendant Timothy Lee
Cross Claimant Thomas Bruder
V.

Page 19 of 60
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John W. DeBlasio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Cross Defendant Justin Volpe
Cross Defendant City of New York Cross Claimant Thomas Wiese
V. Cross Defendant Peter Blaich

Page 20 of 60
represented by Lawrence S. Kahn (See above for address) TERMINATED: 08/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvyn M. Kornberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Laquercia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Laquercia (See above for address) ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Joseph Tacopina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Tacopina (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Lloyd Brounstein (See above for address) LEAD ATTORNEY

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Cross Defendant William Woes
Cross Defendant Richard Roes
Cross Defendant John Does
Cross Defendant Patrick O'Sullivan
Cross Defendant Marcella Makebish
Cross Defendant Michael Immitt
Cross Defendant Frank Birnbaum
Cross Defendant William Pagan

Page 21 of 60
ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Paul B. Bergman (See above for address) TERMINATED: 11/30/1998 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley Drew Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gerald J. McMahon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence J. Zweifach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Cross Defendant Louis Matarazzo
Cross Defendant Inspector Jeremiah Quinlan
Cross Defendant Captain William F. Walsh
Cross Defendant Rolando Aleman
Cross Defendant Francisco Rosario
Cross Defendant Sergeant Jeffrey Fallon

Page 22 of 60
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kevin James Keating (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Raymond Granger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Richard Ware Levitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Cross Defendant Sergeant Michael Bellomo Cross Defendant Thomas Bruder Cross Defendant Charles Schwarz
Cross Defendant Justin Volpe

Page 23 of 60
Peter J. Blessinger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John D. Patten (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by John W. DeBlasio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) TERMINATED: 08/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ronald P. Fischetti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen C. Worth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) TERMINATED: 08/02/1999 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marvyn M. Kornberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Michael Laquercia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Page 24 of 60

Cross Defendant Patrolmen's Benevolent Association of the City of New York
Cross Defendant New York City Police Department Cross Defendant City of New York
Cross Defendant P.O. Joseph O'Brien
Cross Defendant P.O. Jeremiah Daly
Cross Defendant Patrick Lynch
Cross Defendant Anthony Abbate Cross Defendant

Thomas Michael Laquercia (See above for address) ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lawrence S. Kahn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler Wollmuth Maher & Deutsch LLP 500 Fifth Avenue New York, NY 10110 212-382-3300 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

file://C:\DOCUME~1\Dan\LOCALS~1\Temp\8R45L8VR.htm

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Timothy Lee
Cross Claimant P.O. Jeremiah Daly Cross Claimant P.O. Joseph O'Brien Cross Claimant Peter Blaich
Cross Claimant P.O. Joseph O'Brien Cross Claimant Peter Blaich

Page 25 of 60
represented by Scott Sonny Balber (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Philip Puccio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Lloyd Brounstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven Lloyd Brounstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Page 26 of 60

Cross Claimant P.O. Jeremiah Daly

represented by Frederick R. Kessler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 08/06/1998
08/12/1998 08/12/1998 09/03/1998 09/03/1998 09/08/1998 09/08/1998
09/14/1998 09/14/1998 09/14/1998

#

Docket Text

1 COMPLAINT filed and summons(es) issued for City of New York, New York City Police, Patrolmen's Bene, Justin Volpe, Charles Schwarz, Thomas Bruder, Michael Bellomo, Jeffrey Fallon, Francisco Rosario, Rolando Aleman, William F. Walsh, Jeremiah Quinlan, Thomas Wiese, Louis Matarazzo, William Pagan, Frank Birnbaum, Michael Immitt, Marcella Makebish, Patrick O'Sullivan, John Does, Richard Roes, William Woes FILING FEE $ 150.00 RECEIPT # 209728 (Chow, Alice) (Entered: 08/06/1998)

2 ORDER dtd. 8/10/98, set scheduling conference for 11:00 9/18/98 before Magistrate Cheryl L. Pollak ( signed by Magistrate Cheryl L. Pollak ) Copies mailed (Jackson, Ramona) (Entered: 08/12/1998)

3 AFFIDAVIT of Service Abner Louima, Micheline Louima Re: summons & [1-1] complaint To Corp. Counsel dtd. 8/7/98 (Jackson, Ramona) (Entered: 08/12/1998)

4 LETTER dated 8/27/98 from Peter J.Neufeld to Mag Pollak response to order issued 8/10/98 scheduling the initial conf. for 9/18/98. (Jackson, Ramona) (Entered: 09/03/1998)

5 ORDER dtd. 8/31/98, set pretrial conference for 10:30 9/18/98 before Judge Sterling Johnson Jr. ( signed by Judge Sterling Johnson Jr. ) (Jackson, Ramona) (Entered: 09/03/1998)

Text not available. (Entered: 09/09/1998)

6 RETURN OF SERVICE executed as to Patrolmen's Benevolent Ass. of the City of New York (PBA), Justin Volpe, Charles Schwarz, Thomas Bruder, Sergeant Michael Bellomo, Sergeant Jeffrey Fallon, Francisco Rosario, Rolando Aleman, Captain William F. Walsh, Inspector Jeremiah Quinlan, Thomas Wiese, Louis Matarazzo, William Pagan, Frank Birnbaum, Michael Immitt, Marcella Makebish, Patrick O'Sullivan on 9/8/98. Answer due on 9/28/98. Galeano, Sonia (Entered: 09/09/1998)

7 Amended RETURN OF SERVICE executed as to Patrick O'Sullivan on 8/28/98. Answer due on 9/17/98 for Patrick O'Sullivan. (Reddy, Lisa) Modified on 09/14/1998 (Entered: 09/14/1998)

8 Amended RETURN OF SERVICE executed as to Michael Immitt on 8/28/98. Answer due on 9/17/98 for Michael Immitt. (Reddy, Lisa) Modified on 09/14/1998 (Entered: 09/14/1998)

9 Amended RETURN OF SERVICE executed as to Marcella Makebish on

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09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/14/1998 09/14/1998

Page 27 of 60
8/28/98. Answer due on 9/17/98 for Marcella Makebish. (Reddy, Lisa) (Entered: 09/14/1998)
10 Amended RETURN OF SERVICE executed as to William Pagan on 8/28/98. Answer due on 9/17/98 for William Pagan. (Reddy, Lisa) (Entered: 09/14/1998)
11 Amended RETURN OF SERVICE executed as to Frank Birnbaum on 8/28/98. Answer due on 9/17/98 for Frank Birnbaum. (Reddy, Lisa) (Entered: 09/14/1998)
12 Amended RETURN OF SERVICE executed as to Thomas Wiese on 8/28/98. Answer due on 9/17/98 for Thomas Wiese. (Reddy, Lisa) (Entered: 09/14/1998)
13 Amended RETURN OF SERVICE executed as to Louis Matarazzo on 8/28/98. Answer due on 9/17/98 for Louis Matarazzo. (Reddy, Lisa) (Entered: 09/14/1998)
14 Amended RETURN OF SERVICE executed as to Jeremiah Quinlan on 8/31/98. Answer due on 9/20/98 for Jeremiah Quinlan. (Reddy, Lisa) (Entered: 09/14/1998)
15 Amended RETURN OF SERVICE executed as to William F. Walsh on 8/31/98. Answer due on 9/20/98 for William F. Walsh. (Reddy, Lisa) (Entered: 09/14/1998)
16 Amended RETURN OF SERVICE executed as to Rolando Aleman on 9/1/98. Answer due on 9/21/98 for Rolando Aleman. (Reddy, Lisa) (Entered: 09/14/1998)
17 Amended RETURN OF SERVICE executed as to Jeffrey Fallon on 9/2/98. Answer due on 9/22/98 for Jeffrey Fallon. (Reddy, Lisa) (Entered: 09/14/1998)
18 Amended RETURN OF SERVICE executed as to Francisco Rosario on 8/28/98. Answer due on 9/17/98 for Francisco Rosario. (Reddy, Lisa) (Entered: 09/14/1998)
19 Amended RETURN OF SERVICE executed as to Michael Bellomo on 8/28/98. Answer due on 9/17/98 for Michael Bellomo. (Reddy, Lisa) (Entered: 09/14/1998)
20 Amended RETURN OF SERVICE executed as to Thomas Bruder on 8/28/98. Answer due on 9/17/98 for Thomas Bruder. (Reddy, Lisa) (Entered: 09/14/1998)
21 Amended RETURN OF SERVICE executed as to Charles Schwarz on 8/28/98. Answer due on 9/17/98 for Charles Schwarz. (Reddy, Lisa) (Entered: 09/14/1998)
22 Amended RETURN OF SERVICE executed as to Patrolmen's Benevolent Assoc. of the City of NY on 8/28/98. Answer due on 9/17/98 for Patrolmen's Benevolent Assoc. (Reddy, Lisa) (Entered: 09/14/1998)

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09/14/1998 09/14/1998 09/18/1998 09/18/1998
09/23/1998 09/25/1998 09/29/1998 10/01/1998
10/05/1998 10/06/1998 10/13/1998 10/13/1998 10/13/1998

Page 28 of 60
23 Amended RETURN OF SERVICE executed as to Justin Volpe on 8/28/98. Answer due on 9/17/98 for Justin Volpe. (Reddy, Lisa) (Entered: 09/14/1998)
24 LETTER dated 9/8/98 from Marvyn M. Kornberg to Peter J. Neufeld, advising that to date, defendant Volpe has not been served with any papers in order for him to make a determination as to who he will seek to represent him in this matter. (Reddy, Lisa) (Entered: 09/14/1998)
25 Calendar entry: before Judge Johnson on 9/18/98 pre-trial conference. Court reporter Tony Mancuso. (Guzzi, Roseann) (Entered: 09/22/1998)
29 Calendar entry:Before Mag Pollak Initial Conf. Deft's seeking representation by Corp. Counsel need to make their applications by 9/25/98. Corp. counsel to respond by 10/2/98. Pltff's to submit papers on representation/ conflict and discovery issues by 9/25/98 Responses due 10/9/98 Reply 10/14/98 (Jackson, Ramona) (Entered: 09/29/1998)
26 ORDER dtd. 8/31/98 All discovery stayed to 60 days following the answer to complaint The City of NY shall have 60 days to answer ( See docuemnt for all other orders) ( signed by Judge Sterling Johnson Jr. ) (Jackson, Ramona) (Entered: 09/23/1998)
27 LETTER dated 8/21/98 from Georgia Pestana to Judge Johnson (Jackson, Ramona) (Entered: 09/25/1998)
28 LETTER dated 9/8/98 from Marvyn M.Kronberg to Peter Neufeld conf. for 9/18/98. (Jackson, Ramona) (Entered: 09/29/1998)
30 Letter dtd. 9/25/98 MOTION by Abner Louima, Micheline Louima to compel deft. City to disclose now & continue names of personnel whose employment status affected. Counsel to produce relevant information, attorney conflict, so that parties will be in a better position to determine appropriate remedies. Any challenge of sufficiency of service. , Motion hearing [30-1] motion (Jackson, Ramona) (Entered: 10/01/1998)
31 LETTER dated 9/23/98 from Marvyn Kornberg to Mag Pollak regarding discovery ; expedite the appointment of non conflict counsel. (Jackson, Ramona) (Entered: 10/05/1998)
32 RETURN OF SERVICE executed as to Thomas Wiese, William F. Walsh 9/25/98 (Jackson, Ramona) (Entered: 10/06/1998)
33 ORDER dtd. 10/5/98 Request GRANTED. On ltr. dtd. 10/2/98 from Lawrence S Kahn Request time to make determination as to representation of these three deft's to 10/5/98. ( signed by Magistrate Cheryl L. Pollak ) (Jackson, Ramona) (Entered: 10/13/1998)
34 LETTER dated 10/2/98 from Laura A Brevetti to Mag Pollak PBA does not object to some sort of Curcio-type proceeding at which individual deft's can indicate their understanding of "potentail" conflict issues. (Jackson, Ramona) (Entered: 10/13/1998)
35 LETTER dated 10/5/98 from Lawrnece S Kahn to Mag Pollak advise

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10/13/1998
11/02/1998 11/02/1998 11/02/1998 11/02/1998 11/02/1998
11/02/1998 11/02/1998
11/02/1998 11/03/1998 11/03/1998 11/04/1998
11/10/1998

Page 29 of 60
Corp. Counsel will not represent M.Immitt, M.Makebish and P.O'Sullivan in this action. (Jackson, Ramona) (Entered: 10/13/1998)
36 ORDER dtd. 10/9/98 Request GRANTED. On ltr. dtd. 10/8/98 from Lawrence S Kahn Time to submit a response to the 9/25/98 letter be extended to 10/16/98. ( signed by Magistrate Cheryl L. Pollak ) (Jackson, Ramona) (Entered: 10/13/1998)
37 NOTICE of attorney appearance for Michael Bellomo by John D Patten (Jackson, Ramona) (Entered: 11/02/1998)
38 TRANSCRIPT filed for conf. before Judge Johnson for dates of 9/18/98 (Jackson, Ramona) (Entered: 11/02/1998)
39 LETTER dated 10/8/98 from Lawrnece S Kahn request time to submit a response to 9/25/98 letter be extended to Oct. 16,1998. Pltff's counsel has consented to this extension. (Jackson, Ramona) (Entered: 11/02/1998)
40 LETTER dated 10/13/98 from Barry C Scheck to Mag Pollak regarding Brevetti letter dtd. 10/2/98. (Jackson, Ramona) (Entered: 11/02/1998)
41 ORDER dtd. 10/16/98 Extension extension to Oct. 23,1998, to respond to pltff's application for an order requiring the City to identify police officers subjected to advserse employment action as a result of the incident. ( signed by Magistrate Cheryl L. Pollak ) (Jackson, Ramona) (Entered: 11/02/1998)
42 LETTER dated 10/16/98 from Laura Brevetti to Mag Pollak reply brief to Oct 13,1998 letter submitted on behalf of pltff's by Barry Scheck. (Jackson, Ramona) (Entered: 11/02/1998)
43 ORDER dtd. 10/26/98 Request GRANTED. This court will hold the stip., pending a letter from counsel to the"John Doe" deft's. On ltr. dtd. 10/26/98 from Malcolm Lewin ( signed by Magistrate Cheryl L. Pollak ) (Jackson, Ramona) (Entered: 11/02/1998)
TRANSCRIPT filed for Conf. before Mag Pollak for dates of 9/18/98 See document # 11 CV 98 5082 (Jackson, Ramona) (Entered: 11/02/1998)
44 LETTER dated 10/23/98 from Lawrence S Kahn to Mag Pollak regarding J.Quinlan and W.F.Walsh, response to pltff's letter dtd. 9/25/98 (Jackson, Ramona) (Entered: 11/03/1998)
45 UNSIGNED stip. filed (Jackson, Ramona) (Entered: 11/03/1998)
46 ORDER dtd. 10/29/98 Request GRANTED On ltr. dtd. 10/29/98 from Paul B.Bergman step in on behalf of "John Doe" deft's. No objection to request, is that your honor hold in abeyance, until Nov. 3, signing the stip. ( signed by Magistrate Cheryl L. Pollak ) (Jackson, Ramona) (Entered: 11/04/1998)
47 ORDER dtd. 11/6/98 Request GRANTED. On ltr. dtd. 11/6/98 from Paul B.Bergman concerning whether or not to bring adm. charges against

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11/16/1998 11/30/1998 12/02/1998
12/03/1998 12/04/1998
12/08/1998 12/08/1998 12/08/1998 12/17/1998
12/21/1998 02/08/1999

Page 30 of 60
"John Doe". Request the previously submitted stip. be placed on hold until then ( signed by Magistrate Cheryl L. Pollak ) (Jackson, Ramona) (Entered: 11/10/1998)
48 LETTER dated 10/30/98 from Lawrence S Kahn to Mag Pollak will also be representing W.Pagan & F.Birnbaum. (Jackson, Ramona) (Entered: 11/16/1998)
49 LETTER dated 11/19/98 from Paul B Bergman to Mag Pollak representation of "John Doe" has ceased. (Jackson, Ramona) (Entered: 11/30/1998)
50 ORDER dtd. 11/19/98, to show cause why an order should not be entered 1) precluding deft's from filing objections based on improper service. 2) extending time to effect proper service , until 120 days after the conclusion of the criminal proceeding. Returnable 11/25/98 ( signed by Magistrate Cheryl L. Pollak ) (Jackson, Ramona) (Entered: 12/02/1998)
51 LETTER dated 11/24/98 from Peter J Neufeld to Mag Pollak regarding counsels to OTSC dtd. 11/19/98. (Jackson, Ramona) (Entered: 12/03/1998)
52 FIRST AMENDED COMPLAINT by Abner Louima, Micheline Louima , (Answer due 12/14/98 for William Woes, for Richard Roes, for John Does, for Patrick O'Sullivan, for Marcella Makebish, for Michael Immitt, for Frank Birnbaum, for William Pagan, for Louis Matarazzo, for Thomas Wiese, for Jeremiah Quinlan, for William F. Walsh, for Rolando Aleman, for Francisco Rosario, for Jeffrey Fallon, for Michael Bellomo, for Thomas Bruder, for Charles Schwarz, for Justin Volpe, for Patrolmen's Bene, for New York City Police, for City of New York ) amending [1-1] complaint against Peter Blaich (Jackson, Ramona) (Entered: 12/04/1998)
53 RETURN OF SERVICE executed as to Francisco Rosario, Rolando Aleman, Peter Blaich 12/4/98 Answer due on 12/14/98 Amended Complaint (Jackson, Ramona) (Entered: 12/08/1998)
54 AFFIDAVIT of Service by Abner Louima, Micheline Louima Re: [52-1] amended complaint (Jackson, Ramona) (Entered: 12/08/1998)
55 ORDER ( signed by Magistrate Cheryl L. Pollak ) (Jackson, Ramona) (Entered: 12/08/1998)
56 STIPULATION and ORDER dtd. 12/3/98 Each claimant may commence an action with respect to this claim in advance or an oral or physical examination. All discovery as to all parties stayed until after The City answers. ( See document as to all other orders) signed by Magistrate Cheryl L. Pollak (Jackson, Ramona) (Entered: 12/17/1998)
57 NOTICE of attorney appearance for Peter Blaich by Steven Lloyd Brounstein (Glenn, Marilyn) (Entered: 12/24/1998)
58 STIPULATION and ORDER dtd. 1/29/98 City shall disclose to pltff's the nemes and related information sought in pltff's letter dtd. 9/25/98. Pltff's

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07/30/1999
08/13/1999 08/18/1999
08/18/1999 09/17/1999 09/20/1999 09/27/1999 09/27/1999

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request for disclosure of all officers whose employment status was, but no longer continued to be, adversely affected, in connection with incident, is WITHDRAWN without prejudice to their right to renew sixty days after City deft's have answered the complaint. signed by Magistrate Cheryl L. Pollak (Jackson, Ramona) (Entered: 02/08/1999)
59 Calendar entry:,Before Mag Pollak Civil Conf. Discovery is stayed pending conf.on Sept. Mr Bellwich to file papers on proposed disclosure order by Aug. 5,1999. Response 8/9/99 No formal or informal discovery is to occur in the interim absent a request to this court with notice to counsel for all parties. Pltff. and the City are to make available copies of photos taken of the precinct to all counsel and the City is to permit inspection of the precinct house by counsel requesting that opportunity. The City is to notify the court of any proposed renovations and the timing of said renovations; copies to counsel. set scheduling conference for 1:30 9/17/99 before Magistrate-Judge Cheryl L. Pollak , terminated past due deadlines (Jackson, Ramona) (Entered: 08/04/1999)
62 TRANSCRIPT filed for [59-1] proceedings held before Magistrate-Judge Cheryl L. Pollak on 7/30/99. Court reporter: Burton Sulzer. (Asreen, Wendy) (Entered: 08/20/1999)
60 LETTER dated 8/5/99 from Lawrence S. Kahn to Magistrate Judge Pollak, re: the letter of Joseph T. Belevich dated 8/4/99 requesting that the proposed stipulation requiring disclosure of the identity of certain officers be amanded to require that Mr. Belevich's clients be provided with a report setting forth the basis for the charges against each officer and audio tapes of certain interviews. (Reddy, Lisa) (Entered: 08/18/1999)
61 LETTER dated 8/4/99 from Joseph T. Belevich to Magistrate Judge Pollak, requesting that the discovery stipulation be amended to include copies of the report setting forth the basis for the charges against each officer, and the audio tapes of the PG 118-9 interviews during ehich it is alleged that each officer made false statements. (Reddy, Lisa) (Entered: 08/18/1999)
63 ORDER Request to adjourn is Granted. Conf. reset for 10/5/99 @ 1:00. On ltr. dtd. 9/15/99 from Lawrence S Kahn ( signed by Magistrate-Judge Cheryl L. Pollak , on 9/15/99) (Jackson, Ramona) (Entered: 09/17/1999)
64 NOTICE of attorney appearance for Francisco Rosario by Richard Ware Levitt (Jackson, Ramona) (Entered: 09/20/1999)
65 STIPULATION and ORDER The City shall identify all police officers not herein identified against whom disciplinary charges are pending related to the Louima incident. ( signed by Magistrate-Judge Cheryl L. Pollak , on 9/23/99) (Jackson, Ramona) (Entered: 09/27/1999)
66 LETTER dated 7/21/99 from Peter J Neufeld to Mag Pollak regarding additional police officers have had additional charges filed against them. (Jackson, Ramona) (Entered: 09/27/1999)

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10/05/1999 10/08/1999 10/14/1999 10/22/1999 10/22/1999
10/25/1999 10/27/1999 10/27/1999 11/15/1999 11/15/1999 11/16/1999 02/10/2000 02/24/2000

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67 Calendar entry:Before Mag Pollak Parties to circulate stip. re repairs listed in City's Oct. 4 letter by Oct. 15. Pltff. to notify court re: amendment to complaint by Oct 15. Discovery continues to be stayed pending criminal proceedings. (Jackson, Ramona) (Entered: 10/08/1999)
68 LETTER dated 10/4/99 from Lawrence S Kahn to Judge Pollak intentions to raise at tomorrow's conf. the Police Dept's need to proceed with the repairs to the 70th precinct that are listed in the attached memo. (Jackson, Ramona) (Entered: 10/08/1999)
--------------------------------------------------------- TRANSCRIPT of pretrial conference before Magistrate Pollak filed for dates of 10/5/99. Court Reporter S. Silverman. (filed in 98CV5082, document #20). (Greves, Liz) (Entered: 10/14/1999)
69 LETTER dated 10/18/99 from Lawrence S Kahn to Mag Pollak request the court so order enclosed stip. (Jackson, Ramona) (Entered: 10/22/1999)
70 STIPULATION and ORDER do not object to the performance by the Police Dept. of the repairs to the 70th precinct listed in the memo. attached. Will not object to a visit to the 70th precinct by the juries in the trials of these actions on the ground that the repairs listed in Exhibit A have been made. ( signed by Magistrate-Judge Cheryl L. Pollak , on 10/19/99) (Jackson, Ramona) (Entered: 10/22/1999)
71 LETTER dated 10/20/99 from Lawrence S Kahn to Mag.Pollak The City should not be denied the right to depose Mr Antoine. (Jackson, Ramona) (Entered: 10/25/1999)
72 LETTER dated 10/19/99 from Peter J Neufeld to Mag Pollak will decided on amended complaint by middle of Nov. (Jackson, Ramona) (Entered: 10/27/1999)
79 LETTER dated 10/21/99 from James Meyerson, Esq., to Magistrate Pollak, in response to Lawrence Kahn's letter of 10/20/99 and now providing additional comments. (Asreen, Wendy) (Entered: 02/25/2000)
73 NOTICE of Settlement dtd. 11/10/99 by New York City Police, City of New York (Jackson, Ramona) (Entered: 11/15/1999)
74 ORDER NY City Police Dept. may proceed with the repairs set forth in exhibit A hereto. ( signed by Magistrate Cheryl L. Pollak , on 11/10/99) (Jackson, Ramona) (Entered: 11/15/1999)
75 LETTER dated 11/10/99 from Lawrence S Kahn to Mag Pollak enclosed proposed order permitting Police Dept.to proceed with the repairs. (Jackson, Ramona) (Entered: 11/16/1999)
76 NOTICE of attorney appearance for Francisco Rosario by Raymond Granger (Jackson, Ramona) (Entered: 02/10/2000)
77 NOTICE of attorney appearance for Patrolmen's Bene by Scott Sonny Balber (Jackson, Ramona) (Entered: 02/24/2000)

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02/24/2000
02/28/2000 03/01/2000 03/01/2000 03/02/2000 03/03/2000 03/14/2000 03/15/2000 03/16/2000
03/18/2000

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78 ORDER Francisco Rosario filed a motion seeking to hold "PBA" in contempt for its refusal to pay reasonable atty's fees and costs of Rosario's counsel. Following schedule: 1) PBA response to motion 2/29/2000; Rosario reply 3/2/2000; Hearing for March 3,2000 @ 2:00. ( signed by Magistrate Cheryl L. Pollak , on 2/15/00) (Jackson, Ramona) (Entered: 02/24/2000)
80 ORDER, set scheduling conference for 2:00 3/16/00 before Magistrate Cheryl L. Pollak , Reply to March 10,2000 On ltr. dtd. 2/24/2000 from Raymons R.Granger terminated past due deadlines ( signed by Magistrate Cheryl L. Pollak , on 2/24/00) (Jackson, Ramona) (Entered: 02/28/2000)
81 MOTION by Francisco Rosario for a factual certification and an OTSC why the PBA should not be held in contempt; or, in the alternative, for an order compellilng the PBA to pay attorney's fees and expenses, and requesting the District Court to appoint a Special Master. , Motion hearing [81-1] motion (Jackson, Ramona) (Entered: 03/01/2000)
82 MEMORANDUM by Francisco Rosario in support of [81-1] motion for a factual certification and an OTSC why the PBA should not be held in contempt; or, in the alternative, for an order compellilng the PBA to pay attorney's fees and expenses, and requesting the District Court to appoint a Special Master. (Jackson, Ramona) (Entered: 03/01/2000)
83 NOTICE / Consent to Change attorney for Patrolmen's Bene (Jackson, Ramona) (Entered: 03/02/2000)
84 LETTER dated 2/24/00 from Raymond R.Granger to Mag Pollak request a hearing on francisco Rosario's motion be adjourned to March 16,2000. (Jackson, Ramona) (Entered: 03/03/2000)
88 AFFIDAVIT by Justin Volpe Re:in support of request to have PBA to fund legal defense. in both criminal & civil proceedings (Jackson, Ramona) (Entered: 03/28/2000)
89 Affirmation of SCOTT S. BALBER Patrolmen's Bene Re: in opposition to Justin Volpe's motion for contempt or, in the alternative, for an order directing the PBA to pay atty's fees and expenses. (Jackson, Ramona) (Entered: 03/28/2000)
92 Calendar entry:Before Mag Pollak Civil Conf. Arguments on motions for contempt held. Deft's are given one week to confer with the PBA in an effort to resolve the fee issue. set for 9:30 4/5/00 on before Magistrate Cheryl L. Pollak for [81-1] motion Parties to appear to address scheduling and other issues. Counsel for the PBA to notify the court in writing of its position by 3/24/. The motions will be held in abeyance until themder compellilng the PBA to pay attorney's fees and expenses, and requesting the District Court to appoint a Special Master. (Jackson, Ramona) (Entered: 04/05/2000)
87 MEMORANDUM by Patrolmen's Bene in opposition to [81-1] Justin Volpe's motion for contempt or in the alternative for an order directing the PBA to pay atty's fees and expenses. (Jackson, Ramona) (Entered:

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03/22/2000
03/28/2000 03/28/2000 03/29/2000 04/04/2000 04/05/2000 04/11/2000 04/12/2000
04/18/2000

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03/28/2000)
85 REPLY MEMORANDUM OF LAW by Francisco Rosario in further support [81-1] motion for a factual certification and an OTSC why the PBA should not be held in contempt; or, in the alternative, for an order compellilng the PBA to pay attorney's fees and expenses, and requesting the District Court to appoint a Special Master. (Jackson, Ramona) (Entered: 03/22/2000)
86 MEMORANDUM by Patrolmen's Bene in opposition to deft. Justin Volpe's motion for contempt or, in the alternatiove, for an order directing the pBA to pay atty's fees and expenses. (Jackson, Ramona) Modified on 03/28/2000 (Entered: 03/28/2000)
90 LETTER dated 3/24/00 from Michael T Murray to Mag Pollak advise your honor of result s of Law Committe Meeting regarding funding requests. (Jackson, Ramona) (Entered: 03/28/2000)
LETTER dated 3/21/2000 from Raymond R Granger to PBA regarding funding issues. see document # 59 CV 99 608 (Jackson, Ramona) (Entered: 03/29/2000)
91 LETTER dated 3/28/2000 from Thomas Michael Laquercia to Mag Pollak in conclusion, PBA as a co-deft. is in conflict with its own membership on trial in this action and must be estopped from raising any limitations on the defense costs for its membership except as to reasonableness. (Jackson, Ramona) (Entered: 04/04/2000)
93 Calendar entry:Before Mag Pollak Civil Conf. (see order) (Jackson, Ramona) (Entered: 04/11/2000)
94 LETTER dated 4/4/2000 from Raymond R.Granger to Mag Pollak response to PBA'S letter to the court dtd. 3/24/2000, concerning the recent meetings held between various defense counsel and the PBA'S Law Committee. (Jackson, Ramona) (Entered: 04/11/2000)
95 ORDER set at 2:00 4/28/00 on before Magistrate Cheryl L. Pollak for [81-1] motion for a factual certification and an OTSC why the PBA should not be held in contempt; or, in the alternative, for an order compellilng the PBA to pay attorney's fees and expenses, and requesting the District Court to appoint a Special Master. The PBA is directed to produce former PBA counsel laura Brevetti to testify regarding her representation on fee & conflict issue. Individual deft. Officers shall serve any requests for documents and/ or interrogatories April 12,20000. PBA's response April 19,2000. (see document for all other orders) ( signed by Magistrate Cheryl L. Pollak , on 4/11/2000) (Jackson, Ramona) (Entered: 04/12/2000)
96 LETTER dated 4/12/2000 from Raymond R.Granger to Mag Pollak enclosed copies of interrogatories and document requests served on PBA pursuant to instructions dtd. 4/5/2000. (Jackson, Ramona) (Entered: 04/18/2000)

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Page 35 of 60

04/18/2000 04/21/2000 04/25/2000 04/25/2000 04/28/2000 04/28/2000 04/28/2000
04/28/2000 04/28/2000 05/02/2000 05/02/2000 05/02/2000 05/08/2000

97 Deft's INTERROGATORIES propounded to the Patrolmen's Bene (Jackson, Ramona) (Entered: 04/18/2000)
98 LETTER dated 4/18/00 from Raymond R. Granger to Thomas Puccio, Esq., requesting that counsel confirm in writing the details of the ex parte application and of the magistrate's response. (Piper, Francine) Modified on 04/21/2000 (Entered: 04/21/2000)
99 ORDER Request GRANTED. On ltr. dtd. 4/20/2000 from Raymond R.Granger request parties wishing to reply be given to 4/26/2000 to do so. ( signed by Magistrate Cheryl L. Pollak , on 4/21/2000) (Jackson, Ramona) (Entered: 04/25/2000)
100 LETTER dated 4/18/2000 from Raymond R.Granger to Thomas Puccio confirm in writing the details of application and of Magistrate response. (Jackson, Ramona) (Entered: 04/25/2000)
101 LETTER dated 4/26/00 from Raymond R.Granger to Mag Pollak request endorse attached subpoena duces tecum for documents from Laura Brevetti pertaining to issues that will be addressed at the hearing on April 28,2000. (Jackson, Ramona) (Entered: 04/28/2000)
102 By Mag Pollak Subpoena issued for Laura Brevetti at 4/28/00 attached list of documents. (Jackson, Ramona) Modified on 04/28/2000 (Entered: 04/28/2000)
103 ORDER PBA shall produce and serve forthwith all documents that are responsive to deft's request to produce documents dtd. 4/12/2000, or indicate in writing that no such documenst exhists. ( signed by Magistrate Cheryl L. Pollak , on 4/25/2000) (Jackson, Ramona) (Entered: 04/28/2000)
104 ORDER Request Granted. on ltr. dtd. 4/26/2000 from Raymons R Granger request the court allow me to tomorow to submit a response. to PBA's recent filings. ( signed by Magistrate Cheryl L. Pollak , on 4/27/00) (Jackson, Ramona) (Entered: 04/28/2000)
105 LETTER dated 4/25/2000 from Raymond R Granger to Mag Pollak requests you consider this letter as a motion to compel the PBA to produce and to serve documents forthwith in response to document requests. (Jackson, Ramona) (Entered: 04/28/2000)
106 LETTER dated 4/25/2000 from Raymond R Granger to Mag Pollak request consider this letter as a motion to compel the PBA to produce & serve documents forthwith. (Jackson, Ramona) (Entered: 05/02/2000)
107 LETTER dated 4/24/2000 from Kevin J.Keating to Mag Pollak please be advised I have been retained to represent deft. as will Edward Jenks. (Jackson, Ramona) (Entered: 05/02/2000)
108 NOTICE of attorney appearance for Rolando Aleman by Kevin J Keating and Edward Jenks (Jackson, Ramona) (Entered: 05/02/2000)
109 ORDER documents produced by the PBA, in response to deft. Francisco

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Page 36 of 60

05/09/2000 05/10/2000 05/10/2000 05/10/2000 05/10/2000 05/10/2000 05/17/2000 05/24/2000 05/24/2000 06/14/2000 06/21/2000

Rosario's request for the production of documents and interr. will be used by the parties exclusively for the hearing for 4/28/2000. Production of said documents shall not constitute a waiver of any atty.-client privilege. ( signed by Magistrate Cheryl L. Pollak , on 4/28/2000) (Jackson, Ramona) (Entered: 05/08/2000)
110 LETTER dated 5/3/2000 from Raymond R Granger to Mag Pollak regarding reasonable legal costs of its members. (Jackson, Ramona) (Entered: 05/09/2000)
111 LETTER dated 4/26/2000 from Bradley D.Simon to Mag Pollak advise I will not seek to withdraw from the case. (Jackson, Ramona) (Entered: 05/10/2000)
112 LETTER dated 4/24/2000 from Kevin J.Keating to Mag Pollak will be representing Rolando Aleman. (Jackson, Ramona) (Entered: 05/10/2000)
113 LETTER dated 4/26/2000 from Raymond R.Granger to Mag Pollak request in light of late production of documents and number of pressing matters pertaining to clients upcoming criminal case, extension of time to submit response to tomorrow. (Jackson, Ramona) (Entered: 05/10/2000)
114 LETTER dated 4/26/2000 from Raymond R Granger to Mag Pollak PBA still has not produced a single document. I believe the PBA's failure to do so constitutes a separate act of contempt. (Jackson, Ramona) (Entered: 05/10/2000)
115 LETTER dated 5/3/2000 from Raymond r Granger to Mag Pollak regarding laura Brevetti, to promise the court it would pay reasonable legal costs of its members. (Jackson, Ramona) (Entered: 05/10/2000)
116 LETTER dated 5/11/2000 from Rayomd R Granger to Mag Pollak request by Rosario,Makebish & Volpe for a factual certification and for other sanctions pertaining to the misrepresentations and other misconducts. (Jackson, Ramona) (Entered: 05/17/2000)
117 MEMORANDUM by Patrolmen's Bene in opposition to [81-1] deft. Francisco Rosario's motion for contempt or, in the alternative, for an order directing the PBA to pay attorney's fees and expenses. (Jackson, Ramona) (Entered: 05/24/2000)
118 AFFIDAVIT of SCOTT S BALDER by Patrolmen's Bene Re: [81-1] in support of PBA'S opposition to deft. Rosario's motion for contempt., for an order directing the PBA to pay atty's fees & expenses. (Jackson, Ramona) (Entered: 05/24/2000)
119 LETTER dated 6/11/2000 from Raymond R.Granger to Mag Pollak request the court issue an order prohibiting the PBA from having any further contact with Officer Rosario regarding legal matters until further order of the court. (Jackson, Ramona) (Entered: 06/14/2000)
120 LETTER dated 6/15/2000 from Thomas P Puccio to Mag Pollak response to letter dtd. 6/11/2000. We submit no action of the court is warranted. (Jackson, Ramona) (Entered: 06/21/2000)

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07/05/2000 07/06/2000 07/06/2000 07/17/2000 07/17/2000 07/18/2000 07/26/2000 07/26/2000 08/08/2000 08/16/2000
08/31/2000 09/06/2000

121 ORDER Pltff's seek an order authorizing them to file a Second Amended Complaint. All opposition before July 21,2000. Reply August 1,2000. ( signed by Magistrate Cheryl L. Pollak , on 6/29/2000) (Jackson, Ramona) (Entered: 07/05/2000)
122 LETTER dated 6/28/2000 from Peter J Neufeld to Mag Pollak request an order granting pltff's motion to amend the complaint. (Jackson, Ramona) (Entered: 07/06/2000)
123 ORDER, set status conference for 5:00 8/7/00 before Magistrate Cheryl L. Pollak , terminated past due deadlines ( signed by Magistrate Cheryl L. Pollak , on 7/5/2000) (Jackson, Ramona) (Entered: 07/06/2000)
124 LETTER dated 7/11/2000 from Lawrence S Kahn to Mag Pollak City deft's will not oppose pltff's motion to file a second amended complaint. (Jackson, Ramona) (Entered: 07/17/2000)
125 LETTER dated 7/12/2000 from Peter J Blessinger to Judge Pollak Jeffrey Fallon has no objection to pltff's motion to file a second amended complaint (Jackson, Ramona) (Entered: 07/17/2000)
126 ORDER, rescheduling 8/7/00 status conference for 2:30 on 8/31/00 before Magistrate Cheryl L. Pollak . Signed by Magistrate Cheryl L. Pollak , on 7/11/00. (Lee, Tiffeny) (Entered: 07/18/2000)
127 LETTER dated 7/12/2000 from Joseph A Alejandro to Alan Friess regarding representation of Joseph O'Brien (Jackson, Ramona) (Entered: 07/26/2000)
128 ORDER No motion for withdrawal is necessary. On ltr. dtd. 7/18/2000 from George A Farkas ( signed by Magistrate Cheryl L. Pollak , on 7/18/2000) (Jackson, Ramona) (Entered: 07/26/2000)
129 ORDER Pltff's motion for leave to amend is Granted and pltff's are directed to complete service within the time period set forth in Federal Rules of Civil Procedures. ( signed by Magistrate Cheryl L. Pollak , on 8/2/2000) (Jackson, Ramona) (Entered: 08/08/2000)
130 SECOND AMENDED COMPLAINT & JURY DEMAND by Micheline Louima, Abner Louima , (Answer due 8/26/00 for City of New York, for New York City Police, for Patrolmen's Bene, for Justin Volpe, for Charles Schwarz, for Thomas Bruder, for Michael Bellomo, for Francisco Rosario, for Rolando Aleman, for Peter Blaich, Thomas Wiese, for Louis Matarazzo, for Michael Immitt, for William Pagan, for Frank Birnbaum, for John Does, for Richard Roes, for William Woes ) amending [52-1] amended complaint against Joseph O'Brien, Jeremiah Daly, Patrick Lynch, Anthony Abbate,Timothy Lee (Jackson, Ramona) Modified on 08/16/2000 (Entered: 08/16/2000)
132 Calendar entry:Before Mag Pollak Civil Conf. adjourned. (Jackson, Ramona) (Entered: 09/06/2000)
131 LETTER dated 9/1/2000 from Sanford A Rubinstein to Clerk of the Court enclosed affidavit of service of pltff's Second Supplemental

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Page 38 of 60

09/07/2000 09/11/2000 09/11/2000 09/11/2000
09/15/2000 09/15/2000 09/15/2000
09/15/2000 09/21/2000 09/22/2000 09/22/2000

Summons & Second Amended Complaint. (Jackson, Ramona) (Entered: 09/06/2000)
133 AFFIDAVIT of Service by Micheline Louima, Abner Louima Re: summons & [130-1] amended complaint (Jackson, Ramona) (Entered: 09/07/2000)
134 RETURN OF SERVICE executed as to Timothy Lee, Joseph O'Brien, Jeremiah Daly 8/28/00 Second supplemental summons & Second amended complaint. (Jackson, Ramona) (Entered: 09/11/2000)
135 RETURN OF SERVICE executed 8/22/00 Answer due on 8/26/00 (Jackson, Ramona) (Entered: 09/11/2000)
136 RETURN OF SERVICE executed as to Frank Birnbaum, William Pagan, Thomas Wiese, City of New York, Michael Bellomo, Thomas Bruder, Charles Schwarz, Justin Volpe, Rolando Aleman, Francisco Rosario, Peter Blaich, Michael Immitt 8/22/00 Answer due on 8/26/00 (Jackson, Ramona) (Entered: 09/11/2000)
137 LETTER dated 9/11/2000 from Naomi Fein to Diana Caggiano service of third amended complaint of Timothy Lee. (Jackson, Ramona) (Entered: 09/15/2000)
138 ORDER, set status conference for 2:30 12/4/00 before Magistrate Cheryl L. Pollak , terminated past due deadlines ( signed by Magistrate Cheryl L. Pollak , on 9/6/2000) (Jackson, Ramona) (Entered: 09/15/2000)
139 ORDER The discovery stay is lifted. The following schedule was set: 1) deft's answers or motions to dismiss before 9/25/2000; 2) Pltff's responses to motions to dismiss Oct 23,2000, with any replies 11/6/2000; 3) with respect to City deft's, discovery requests 10/9/2000, response 11/10/2000; discovery requests 10/23/2000; pltff's response 11/27/2000. ; 4) with respect to City deft's hearing before 9/27/2000; City deft's answer within 45 days following 50 h hearing, with discovery to commence 60 days thereafter. ( signed by Magistrate Cheryl L. Pollak , on 9/11/2000) (Jackson, Ramona) (Entered: 09/15/2000)
140 LETTER dated 9/7/2000 from Ronald P Fischetti to Mag Pollak until PBA properly retains counsel for Charles Schwarz in accordance with our understanding of the PBA contract, that your honor not entertain any request for default. (Jackson, Ramona) (Entered: 09/15/2000)
141 NOTICE of attorney appearance for Peter Blaich, Joseph O'Brien, Jeremiah Daly by Frederick R. Kessler (Jackson, Ramona) (Entered: 09/21/2000)
142 NOTICE of attorney appearance for Timothy Lee by Thomas P. Puccio, Scott Sonny Balber (Jackson, Ramona) (Entered: 09/22/2000)
143 LETTER dated 9/15/2000 from Joseph Tacopina to Mag Pollak request until time PBA properly retains counsel for Mr Wiese, that your honor not entertain any requests for a default against him in any manner. (Jackson, Ramona) (Entered: 09/22/2000)

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09/22/2000
09/26/2000 09/27/2000 09/27/2000 09/27/2000 09/27/2000 09/27/2000
09/27/2000 09/27/2000 10/03/2000 10/03/2000 10/03/2000 10/03/2000

144 LETTER dated 9/15/2000 from Nick Brustin to Mag Pollak we request an order from the court reiterating that individual deft's including among other Mr Wiese & Mr Schwartz, are bound by the terms of the court's 9/6/2000 order, regardless of who represent them. (Jackson, Ramona) (Entered: 09/22/2000)
145 NOTICE of attorney appearance for Michael Immitt by Thomas P. Puccio, Scott Sonny Balber (Jackson, Ramona) (Entered: 09/26/2000)
146 LETTER dated 9/8/2000 from Peter J.Newfeld to Mag.Pollak request order from the court allowing pltff's to amend their complaint. (Jackson, Ramona) (Entered: 09/27/2000)
147 ORDER This court grants plaintiff's motion to file their proposed amended complaint and directs that service be effected expeditiously. ( signed by Magistrate Cheryl L. Pollak , on 9/25/2000) (Jackson, Ramona) (Entered: 09/27/2000)
148 ORDER Time to answer with respect to third amended complaint to Oct 2,2000. City deft's time to conduct the 50th hearing to Oct. 4,2000. ( signed by Magistrate Cheryl L. Pollak , on 9/20/2000) (Jackson, Ramona) (Entered: 09/27/2000)
Text not available. (Entered: 09/27/2000)
149 THIRD AMENDED COMPLAINT AND JURY DEMAND by Micheline Louima, Abner Louima , (Answer due 10/7/00 for City of New York, for Patrolmen's Bene, for Justin Volpe, for Charles Schwarz, for Thomas Bruder, for Michael Bellomo, for Francisco Rosario, for Rolando Aleman, for Peter Blaich, for Joseph O'Brien, for Jeremiah Daly, for Thomas Wiese, for Timothy Lee, for Louis Matarazzo, for Patrick Lynch, for Michael Immitt, for Anthony Abbate, for William Pagan, for Frank Birnbaum, for John Does, for Richard Roes, for William Woes ) amending [130-1] amended complaint (Jackson, Ramona) Modified on 10/10/2000 (Entered: 09/27/2000)
150 ANSWER by Francisco Rosario to second amended complaint (Piper, Francine) (Entered: 09/28/2000)
151 ANSWER by Justin Volpe to amended complaint (Johnson, Tanya) (Entered: 09/28/2000)
152 ANSWER to 3rd Party [149-1] amended complaint (Jackson, Ramona) (Entered: 10/03/2000)
153 ANSWER to Complaint by Francisco Rosario (Jackson, Ramona) (Entered: 10/03/2000)
154 NOTICE of attorney appearance for Louis Matarazzo by Thomas P. Puccio, Scott Sonny Balber (Jackson, Ramona) (Entered: 10/03/2000)
155 NOTICE of attorney appearance for Patrick Lynch by Scott Sonny Balber (Jackson, Ramona) (Entered: 10/03/2000)

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10/03/2000 10/03/2000
10/03/2000 10/03/2000
10/03/2000 10/03/2000 10/03/2000 10/03/2000 10/03/2000
10/04/2000 10/05/2000

156 ANSWER by Peter Blaich to Second amended complaint; jury demand (Jackson, Ramona) (Entered: 10/03/2000)
156 CROSSCLAIM by Peter Blaich against William Woes, Richard Roes, John Does, Patrick O'Sullivan, Marcella Makebish, Michael Immitt, Frank Birnbaum, William Pagan, Louis Matarazzo, Thomas Wiese, Jeremiah Quinlan, William F. Walsh, Rolando Aleman, Francisco Rosario, Jeffrey Fallon, Michael Bellomo, Thomas Bruder, Charles Schwarz, Justin Volpe, Patrolmen's Bene, New York City Police, City of New York, Joseph O'Brien, Jeremiah Daly, Patrick Lynch, Anthony Abbate, Timothy Lee, Peter Blaich (Jackson, Ramona) (Entered: 10/03/2000)
157 ANSWER by Jeremiah Daly to amended complaint; jury demand (Jackson, Ramona) (Entered: 10/03/2000)
158 CROSSCLAIM by Jeremiah Daly against Peter Blaich, William Woes, Richard Roes, John Does, Patrick O'Sullivan, Marcella Makebish, Michael Immitt, Frank Birnbaum, William Pagan, Louis Matarazzo, Thomas Wiese, Jeremiah Quinlan, William F. Walsh, Rolando Aleman, Francisco Rosario, Jeffrey Fallon, Michael Bellomo, Thomas Bruder, Charles Schwarz, Justin Volpe, Patrolmen's Bene, New York City Police, City of New York, Joseph O'Brien, Jeremiah Daly, Patrick Lynch, Anthony Abbate, Timothy Lee (Jackson, Ramona) (Entered: 10/03/2000)
159 ANSWER by Thomas Bruder to amended complaint (Jackson, Ramona) (Entered: 10/03/2000)
159 CROSSCLAIM by Thomas Bruder against Justin Volpe, City of New York (Jackson, Ramona) (Entered: 10/03/2000)
160 ANSWER by Rolando Aleman to Second amended complaint (Jackson, Ramona) (Entered: 10/03/2000)
161 ANSWER by Thomas Wiese to Second amended complaint (Jackson, Ramona) (Entered: 10/03/2000)
161 CROSSCLAIM by Thomas Wiese against Peter Blaich, William Woes, Richard Roes, John Does, Patrick O'Sullivan, Marcella Makebish, Michael Immitt, Frank Birnbaum, William Pagan, Louis Matarazzo, Jeremiah Quinlan, William F. Walsh, Rolando Aleman, Francisco Rosario, Jeffrey Fallon, Michael Bellomo, Thomas Bruder, Charles Schwarz, Justin Volpe, Patrolmen's Bene, New York City Police, City of New York, Joseph O'Brien, Jeremiah Daly, Patrick Lynch, Anthony Abbate, Timothy Lee (Jackson, Ramona) (Entered: 10/03/2000)
162 NOTICE of attorney appearance for Thomas Bruder by Gregory M. Longworth (Jackson, Ramona) (Entered: 10/04/2000)
163 MOTION by Francisco Rosario for a factual certification , to show cause why the PBA and its attorney's should not be held in contempt for making misrepresentation to and for misleading the court , for sanctioning the PBA and / or it's attorney's for such conduct and for

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10/05/2000
10/10/2000 10/10/2000 10/10/2000 10/10/2000 10/10/2000 10/10/2000 10/11/2000 10/11/2000 10/11/2000 10/11/2000 10/11/2000 10/11/2000 10/11/2000 10/12/2000

causing unnecessary delay and expenses. , Motion hearing [163-1] motion, [163-2] motion, [163-3] motion Motion file stamped: 10/5/00 and (Jackson, Ramona) (Entered: 10/06/2000)
164 MEMORANDUM by Francisco Rosario in support of [163-1] motion for a factual certification, [163-2] motion to show cause why the PBA and its attorney's should not be held in contempt for making misrepresentation to and for misleading the court, [163-3] motion for sanctioning the PBA and / or it's attorney's for such conduct and for causing unnecessary delay and expenses. (Jackson, Ramona) (Entered: 10/06/2000)
165 ANSWER by Jeremiah Daly to Second amended complaint; jury demand (Jackson, Ramona) (Entered: 10/10/2000)
165 CROSSCLAIM by Jeremiah Daly against all co-deft's. (Jackson, Ramona) (Entered: 10/10/2000)
166 ANSWER by Joseph O'Brien to Second amended complaint; jury demand (Jackson, Ramona) (Entered: 10/10/2000)
166 CROSSCLAIM by Joseph O'Brien all co-deft's (Jackson, Ramona) (Entered: 10/10/2000)
167 ANSWER by Peter Blaich to Second amended complaint; jury demand (Jackson, Ramona) (Entered: 10/10/2000)
167 CROSSCLAIM by Peter Blaich all co-deft's. (Jackson, Ramona) (Entered: 10/10/2000)
168 LETTER dated 10/2/2000 from Lawrence S Kahn to Mag Pollak (Jackson, Ramona) (Entered: 10/11/2000)
169 AMENDED ANSWER to Second Amended Complaint by Jeremiah Daly : amends [165-1] complaint answer; jury demand (Jackson, Ramona) (Entered: 10/11/2000)
169 AMENDED CROSSCLAIM by Jeremiah Daly [165-1] cross claim (Jackson, Ramona) (Entered: 10/11/2000)
170 AMENDED ANSWER to Complaint by Joseph O'Brien : amends [1661] complaint answer; jury demand (Jackson, Ramona) (Entered: 10/11/2000)
170 AMENDED CROSSCLAIM by Joseph O'Brien [166-1] cross claim (Jackson, Ramona) (Entered: 10/11/2000)
171 AMENDED ANSWER to Complaint by Peter Blaich : amends [167-1] complaint answer; jury demand (Jackson, Ramona) (Entered: 10/11/2000)
171 AMENDED CROSSCLAIM by Peter Blaich [167-1] cross claim (Jackson, Ramona) (Entered: 10/11/2000)
172 ORDER Deft's PBA'S request to exceed the 25 page limit of it's motion to dismiss is Granted. Pltff. will also have authority to exceed the limit

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10/12/2000 10/18/2000 10/18/2000 10/18/2000 10/18/2000 10/18/2000 10/18/2000 10/26/2000 10/26/2000 10/26/2000
10/27/2000 10/27/2000
10/27/2000 10/27/2000 10/27/2000

for his reply. Deft's motion to dismiss and pltff's reply shall not exceed 35 pages. On ltr. dtd. 9/20/2000 from Douglas P. Baumstein ( signed by Judge Sterling Johnson Jr. , on 9/28/2000) (Jackson, Ramona) (Entered: 10/12/2000)
173 AFFIDAVIT of Service by Abner Louima, Micheline Louima Re: [1491] summons & amended complaint (Jackson, Ramona) (Entered: 10/12/2000)
174 ANSWER by Joseph O'Brien to Third amended complaint; jury demand (Jackson, Ramona) (Entered: 10/18/2000)
174 CROSSCLAIM by Joseph O'Brien with respect to Third Amended Complaint (Jackson, Ramona) (Entered: 10/18/2000)
175 ANSWER by Peter Blaich to Third amended complaint; jury demand (Jackson, Ramona) (Entered: 10/18/2000)
175 CROSSCLAIM by Peter Blaich with respect to Third Amended Complaint (Jackson, Ramona) (Entered: 10/18/2000)
176 ANSWER by Jeremiah Daly to Third amended complaint; jury demand (Jackson, Ramona) (Entered: 10/18/2000)
176 CROSSCLAIM by Jeremiah Daly with respect to Third Amended Complaint (Jackson, Ramona) (Entered: 10/18/2000)
177 LETTER dated 10/18/2000 from Nick Brustin to Judge Johnson request adjn. of response to motion to dismiss. (Jackson, Ramona) (Entered: 10/26/2000)
178 LETTER dated 10/2/2000 from Michael t Murray to Mr Neufeld moving to dismiss amended complaint. (Jackson, Ramona) (Entered: 10/26/2000)
183 Calendar entry:Before Mag Pollak Telephone Conf. Disputes regarding PBA'S responses to pls. interrogatories and document requests resolved. Pls. to resolve 30 (b)(6) witness and confer on number breadth of requests. (Jackson, Ramona) (Entered: 11/02/2000)
Endorsed order Request granting [177-1] PBA'S motion to dismiss to 11/8/2000; Reply 11/27/2000. ( Signed by Judge Sterling Johnson Jr. , on 10/19/2000) (Jackson, Ramona) (Entered: 10/27/2000)
179 ANSWER by Patrolmen's Bene, Patrick Lynch, Louis Matarazzo, Michael Immitt, Timothy Lee to [161-1] [166-1] [156-1] cross claim of co deft's J.Volpe, T.Weise, C Schwarz, J.O'Brien, J.Daley and Peter Blaich (Jackson, Ramona) (Entered: 10/27/2000)
180 ANSWER by Joseph O'Brien to cross claim of Charles Schwarz (Jackson, Ramona) (Entered: 10/27/2000)
181 ANSWER by Peter Blaich to cross claim of Charles Schwarz (Jackson, Ramona) (Entered: 10/27/2000)
182 ANSWER by Jeremiah Daly to cross claim of Charles Schwarz (Jackson,

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11/06/2000 11/06/2000 11/06/2000 11/09/2000 11/14/2000 11/14/2000
11/15/2000
11/15/2000 11/17/2000
11/17/2000 11/17/2000 11/17/2000 11/21/2000 11/22/2000

Ramona) (Entered: 10/27/2000)
184 ANSWER by Peter Blaich to [161-1] cross claim of Thomas Wiese (Jackson, Ramona) (Entered: 11/06/2000)
185 ANSWER by Jeremiah Daly to [161-1] cross claim of Thomas Wiese (Jackson, Ramona) (Entered: 11/06/2000)
186 ANSWER by Joseph O'Brien to [161-1] cross claim of Thomas Wiese (Jackson, Ramona) (Entered: 11/06/2000)
187 ANSWER by Thomas Wiese to Third amended complaint (Jackson, Ramona) (Entered: 11/09/2000)
188 ANSWER by City of New York, Frank Birnbaum, William Pagan to amended complaint (Jackson, Ramona) (Entered: 11/14/2000)
188 ANSWER by City of New York, Frank Birnbaum, William Pagan to [176-1] cross claim, [175-1] cross claim, [161-1] cross claim, [158-1] cross claim, [166-1] cross claim, [165-1] cross claim (Jackson, Ramona) (Entered: 11/14/2000)
189 SCHEDULING ORDER, set pretrial conference for 9:30 2/7/01 before Judge Sterling Johnson Jr. , terminated past due deadlines ( signed by Judge Sterling Johnson Jr. , on 11/2/2000) (Jackson, Ramona) (Entered: 11/15/2000)
199 Calendar entry: Before Mag. Pollak on 11/15/00. Case called for telephone conference. Deposition dispute resolved. (Frullo, Veronica) (Entered: 11/28/2000)
190 ORDER Pltff's request to exceed the 50 page limit is granted. There are no restrictions on the PBA'S page limit on the reply. On ltr. dtd. 11/7/2000 from Douglas P Baurnstein. ( signed by Magistrate Cheryl L. Pollak , on 11/7/2000) (Jackson, Ramona) (Entered: 11/17/2000)
191 LETTER dated 11/7/2000 from Peter J Neufeld to Mag. Pollak we will not object to request by PBA to expand the page limit on their reply. (Jackson, Ramona) (Entered: 11/17/2000)
192 LETTER dated 11/7/2000 from Peter J Newfeld to Mag Pollak request an expansion on the page limitations for our response to the PBA's motion to dismiss. (Jackson, Ramona) (Entered: 11/17/2000)
193 LETTER dated 11/7/2000 from Douglas P.Baumstein to Mag Pollak regarding page limits and moving the PBA's time to reply accordingly. (Jackson, Ramona) (Entered: 11/17/2000)
194 NOTICE of attorney appearance for Francisco Rosario by Raymond Granger (Jackson, Ramona) (Entered: 11/21/2000)
195 LETTER dated 11/8/2000 from Raymond R.Granger to Mag Pollak response to letter from Thomas Puccio to the court dtd. 10/30/2000 (Jackson, Ramona) (Entered: 11/22/2000)

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11/22/2000 11/22/2000 11/22/2000 11/29/2000 12/05/2000 12/05/2000
01/10/2001 01/24/2001 03/01/2001 03/16/2001 03/21/2001 03/28/2001 03/28/2001
07/23/2001

196 LETTER dated 11/7/2000 from Thomas P Puccio to Judge Johnson request Your Honor review a decision rendered by Mag Judge Pollak earlier today. (Jackson, Ramona) (Entered: 11/22/2000)
197 LETTER dated 11/8/2000 from Peter Neufeld to Judge Johnson (Jackson, Ramona) (Entered: 11/22/2000)
198 ORDER Request Denied. On ltr. dtd. 11/7/2000 from Thomas P Puccio request to review Mag Pollak's decision ( signed by Judge Sterling Johnson Jr. , on 11.8.2000) (Jackson, Ramona) (Entered: 11/22/2000)
200 NOTICE/ CONSENT TO CHANGE ATTY. of Michael Immitt by Michael T Murray & Scott Balber (Jackson, Ramona) (Entered: 11/29/2000)
201 ORDER adjourning compliance conference scheduled for 12/4/00 to 1/19/00 at 10:30AM before Mag. Pollak. (signed by Magistrate Cheryl L. Pollak , on 12/1/00) (Frullo, Veronica) (Entered: 12/05/2000)
202 LETTER dated 11/20/2000 from Thomas P Puccio to Judge Johnson regarding request for reconsideration of Mag.Pollak's decision to suspend the page limitation on pltff's response to the PBA's motion to dismiss. (Jackson, Ramona) (Entered: 12/05/2000)
203 LETTER dated 12/12/2000 from K.C.Okoli to Judge Johnson enclosed Notice of Atty's Lien. (Jackson, Ramona) (Entered: 01/10/2001)
204 ORDER Status Conf. for Jan. 19,2001 has been adjourned. ( signed by Magistrate Cheryl L. Pollak , on 1/17/01) (Jackson, Ramona) (Entered: 01/24/2001)
205 NOTICE of Attorney's Lien by K.O. OKOLI (Jackson, Ramona) (Entered: 03/01/2001)
206 ORDER, for protective order ( signed by Magistrate Cheryl L. Pollak , on 3/12/01) (Jackson, Ramona) (Entered: 03/16/2001)
207 ORDER, set status conference for 9:00 3/28/01 before Magistrate Cheryl L. Pollak , terminated past due deadlines ( signed by Magistrate Cheryl L. Pollak , on 3/20/01) (Jackson, Ramona) (Entered: 03/21/2001)
208 LETTER dated 3/22/01 from Charlotte Young to Clerk of the Court in the process of notifying deft's of upcoming conf. (Jackson, Ramona) (Entered: 03/28/2001)
209 ORDER, Conf. for March 28,2001 has been cancelled. All parties to the litigation, shall refrain from publicly disseminating or discussing with anyone information regarding ongoing settlement negotiations in above case. terminated past due deadlines ( signed by Magistrate Cheryl L. Pollak , on 3/27/01) (Jackson, Ramona) (Entered: 03/28/2001)
210 STIPULATION and ORDER of settlement and dismissal. Ordered that the City of New York make payments in the sum of $7,125,000.00 and the insurers of the Patrolmen's Benevolent Association of the City of

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07/31/2001 08/07/2001
08/08/2001 09/18/2001 10/11/2001 11/02/2001 01/02/2002 05/07/2002

New York on behalf of the PBA shall pay Plaintiffs the sum of $1,625,000.00. Ordered that Plaintiffs' claims against Charles Schwarz insofar as they seek punitive damages, Plaintiffs' claims against Francisco Rosario, and Charles Schwarz' cross-claims against the City and the PBA shall not be dismissed but prosecution shall be stayed pending exhaustion of all appeals by Charles Schwarz. Please see order for details. Exhibits A-E are attached. ( Signed by Judge Sterling Johnson Jr. , dated: July 14, 2001. (Vaughn, Terry) (Entered: 07/23/2001)
Case closed. Per chambers. (Vaughn, Terry) (Entered: 07/31/2001)
211 ORDER with regard to the disposition of the attorney's fees portion of the settlement proceeds, this Court appoints Ronald L. Garnett, Esq., 299 Broadway, Suite 1601, New York, New York, 10007-1901, as escrow agent. The attorney's fees shall be deposited in a separate interest-bearing account in the name of the escrow agent, Ronal L. Garnett, Esq., who will act as fiduciary over the account, be responsible for investing the monies, and will not charge fees for handling the account. ( signed by Magistrate Cheryl L. Pollak , on 8/7/01) (Sica, Michele) (Entered: 08/07/2001)
212 ORDER that if the PBA wishes to submit a response to the second motion filed by Mr. Rosario, it should do so by 8/24/01; Mr. Rosario shall have until 9/7/01 to submit a reply, if any. (Signed by Magistrate Cheryl L. Pollak on 8/8/01). Copies faxed by Chambers on 8/8/01. (Reddy, Lisa) (Entered: 08/08/2001)
213 LETTER dated 9/7/01 from Raymond R. Granger and Richard Ware Levitt to Magistrate Judge Pollak, requesting that the Court grant the relief sought in Mr. Rosario's motions. (Reddy, Lisa) (Entered: 09/18/2001)
214 LETTER dated 10/8/01 from Thomas P. Puccio to Magistrate Judge Pollak, responding to certain issues raised in the Rosario letter dated 9/7/01. (Reddy, Lisa) (Entered: 10/11/2001)
215 LETTER dated 10/29/01 from Raymond R. Granger and Richard Ware Levitt to Magistrate Judge Pollak, in response to the letter of Thomas Puccio dated 10/8/01. (Reddy, Lisa) (Entered: 11/02/2001)
216 STIPULATION and ORDER, substituting the Law Offices of Bradley D. Simon, Esq. as attorney of record for Elizabeth Thomas, administrator of the estate of Carl Thomas, relieving Schlam Stone & Dolan, PC . (Signed by Magistrate Cheryl L. Pollak on 11/20/01). (Reddy, Lisa) (Entered: 01/02/2002)
REPORT AND RECOMMENDATIONS of Magistrate Cheryl L. Pollak dated 5/2/02 Re: [81-1] motion for a factual certification and an OTSC why the PBA should not be held in contempt; or, in the alternative, for an order compellilng the PBA to pay attorney's fees and expenses, and requesting the District Court to appoint a Special Master. ; Mag. recommends that 1) this Court declines to certify the PBA's conduct as constituting grounds for civil contempt under 28 U.S.C. 636; 2) denies

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05/07/2002 05/07/2002 05/07/2002
05/07/2002 05/07/2002 05/07/2002 05/07/2002
05/07/2002 05/07/2002

Rosario's motion to compel the PBA to pay attorney's fees and expenses; and 3) denies Rosario's motion for sanction pursuant to Fed.R.Civ.P.37 and 28 U.S.C. 1927. Motion no longer referred. Objections to R and R due within ten days of receipt of this report. c/m by chambers. (Fernandez, Erica) (Entered: 05/07/2002)
217 MEMORANDUM in support of the PBA's Appeal of Mag. Judge Pollak's order date 4/11/00. (rec'd in docketing 5/7/02) (Fernandez, Erica) Modified on 05/07/2002 (Entered: 05/07/2002)
Endorsed order on doc #217; application denied PBA's request that Mag Pollak's 4/11/00 order be vacated. Signed by Judge Sterling Johnson Jr. , on 4/18/00. (Fernandez, Erica) (Entered: 05/07/2002)
218 LETTER dated 4/19/00 from Thomas P. Puccio, Esq. to Mag. Pollak in response to order dated 4/11/00 directing PBA to set forth its position on the issue of conflict originally addressed in the fall of 1998. (affidavit of Laura A. Brevetti and PBA's Objections to Rosario's request for the Production of documents and interrogatories attached). (Fernandez, Erica) (Entered: 05/07/2002)
219 LETTER (rec'd in docketing on 5/7/02) dated 4/26/00 from Thomas P. Puccio, Esq. to Mag. Pollak requesting that Rosario's motion be denied. (Fernandez, Erica) (Entered: 05/07/2002)
220 LETTER (rec'd in docketing on 5/7/02) dated 4/28/00 from Raymond R. Granger, Esq. to Mag Pollak in response to the PBA's submissions to the court dated 4/19/00 and 4/26/00, including Lara Brevetti's Affidavit. (Exhibits Q-S attached) (Fernandez, Erica) (Entered: 05/07/2002)
221 LETTER dated 5/3/00 from Raymond R. Granger to Mag. Pollak indicating that the PBA has suggested that its long withheld concession that it had in fact, authorized its former general counsel Laura Brevetti to promise the Court that it would pay the legal costs of its members. (Fernandez, Erica) (Entered: 05/07/2002)
222 LETTER (recd in docketing on 5/7/02) dated 5/8/00 from Thomas P. Puccio, Esq. to Mag. Pollak in opposition to the oral motions of Raymond Granger, Gerald McMahon, Thomas Laquercia seeking a factual certification of contempt against the PBA and its attorneys and in response to 5/3/00 letter from Raymond Granger to the Court. (Fernandez, Erica) (Entered: 05/07/2002)
223 LETTER (rec'd in docketing 5/7/02) dated 8/24/01 from Thomas P. Puccio, Esq. to Mag. Pollak in response to Order dated 8/8/01. (Fernandez, Erica) (Entered: 05/07/2002)
224 REPORT AND RECOMMENDATIONS of Magistrate Cheryl L. Pollak dated 5/2/02 Re: [81-1] motion for a factual certification and an OTSC why the PBA should not be held in contempt; or, in the alternative, for an order compellilng the PBA to pay attorney's fees and expenses, and requesting the District Court to appoint a Special Master. Mag Pollak recommends that this Court; 1) declines to certify the PBA's conduct as

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05/31/2002
06/13/2002 06/20/2002
08/07/2002 09/24/2002 10/17/2002

constituting grounds for civil contempt under 28 U.S.C. 636; 2)denies Rosario's motion to compel the PBA to pay attorney's fees and expenses; and 3)denies Rosario's motion for sanctions pursuant to Fed. R. Civ.P.37 and 28 U.S.C. 1927. Objections to R and R due within 10 days of receipt of this Report. Motion no longer referred. c/m by chambers. (Fernandez, Erica) (Entered: 05/07/2002)
225 ORDER: It is ordered that the protective order dated 3/12/01, as modified by this Court's Orders of 1/8/02 and 4/3/02 shall be lifted only to the limited extent that counsel for Mr. Schwarz may speak to Mr. Figueroux and Ms. Roper-Simpson regarding matters relevant to the pending criminal proceedings and consistent with their ethical obligations as former counsel to Mr. Louima not to divulge the confidences and secrets of a former client without that client's consent, unless the communication is authorized by the Disciplinary Rules; It is further ordered that the protective order dated 3/12/01 as modified by this Order and the Court's orders of 1/8/02 and 4/3/02, shall otherwise remain in effect. The Court will address the continued appropriateness of the protective order at the conclusion of the criminal proceedings. ( Signed by Magistrate Cheryl L. Pollak , on 5/30/02) (Fernandez, Erica) (Entered: 05/31/2002)
226 TRANSCRIPT of civil cause for oral argument before Magistrate Pollak filed for for dates of 5/28/02 (Black, Amanda) (Entered: 06/17/2002)
227 MEMORANDUM and ORDER: USMJ Pollak held hearings on dft Rosario's motions and on 5/2/02 issued a Report and Recommendation. USMJ determined that the PBA's conduct does not rise to the level of civil contempt under 28 U.S.C. 636 and accordingly recommended that Rosario's motions to compel the PBA to pay attorney's fees and expenses and for sanctions pursuant to Fed. R. Civ. and 28 U.S.C. 1927 be denied. In this case, USMJ objections to Mag. Pollak's recommendations were due within 10 days of receipt of her 5/2/002 decision. No Objections to the Report and Recomm. were filed with this Court. Upon review of the recommendations, this Court adopts and affirms Mag. Pollak's Report in its entirety. c/m Signed by Judge Sterling Johnson Jr. , on 6/17/02. (Fernandez, Erica) (Entered: 06/20/2002)
228 SEALED DOCUMENT filed (Pltf letter dated 8/2/02). (Fernandez, Erica) (Entered: 08/07/2002)
229 SEALED DOCUMENT filed; date of sealing 09/23/02. (Sica, Michele) Modified on 09/24/2002 (Entered: 09/24/2002)
230 ORDER that the protective order restricting public access to the proceedings and papers filed in connection with the proceedins to determine the allocations of attorney's fees, entered by this Court on 3/12/01 an subsequently modified on various occasions, is hereby lifted. It is further ordered that all records previously ordered to be sealed in connection with these proceedings are hereby unsealed. (Signed by Magistrate Cheryl L. Pollak on 10/15/02) (Johnson, Tanya) (Entered: 10/18/2002)

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10/23/2002 10/24/2002
10/24/2002 10/24/2002 10/24/2002 10/24/2002 10/24/2002
10/24/2002

231 LETTER dated 10/18/02 from Thomas A. Kissane, Esq. to Michael S. Ross, Esq. informing that certain clients, have been discussing and mischaracterizing the settlement discussions placed under seal by Mag. Pollak. (Fernandez, Erica) (Entered: 10/23/2002)
232 MEMORANDUM and ORDER (rec'd in docketing on 10/24/02): This Court elects not to exercise jurisdiction over the fee dispute in this case. Where this case has not matured into full-blown litigation, this Court has not developed any particular familiarity with the relevant facts and legal issues in the underlying suit that would warrant, in the interest of judicial economy, retention of jurisdiction. Moreover, as diversity jurisdiction is lacking, the fee dispute falls well within the adjudicatory competence of the courts of New York State. Accordingly, the fee dispute is dismissed for want of jurisdiction. Signed by Magistrate A. S. Chrein on 5/31/00. (Fernandez, Erica) (Entered: 10/24/2002)
233 LETTER dated 3/13/01 from K.C. Okoli, Esq. to Mag. Pollak informing that he filed a Notice of Attorney's Lien in this matter on behalf of client Casilda E. Roper-Simpson, Esq. for services rendered by her to the pltfs. Counsel also requests a conference. (Fernandez, Erica) (Entered: 10/24/2002)
234 LETTER dated 3/13/01 (rec'd for docketing on 10/24/02) from Michael S. Ross, Esq. to Brian Figeroux, Esq. regarding a proposal as to the distribution of the proceeds of the settlement. (Fernandez, Erica) (Entered: 10/24/2002)
235 LETTER dated 3/15/01 from Brian Figeroux, Esq. to Mag. Pollak notifying the Court that his firm's lien will remain in full effect until all issues are resolved and suggests that Rubenstein & Rynecki and Rev. Johnnie L. Cochran, Jr. et. al. secure separate attorneys. (copy of retainer agreement attached) (Fernandez, Erica) Modified on 10/24/2002 (Entered: 10/24/2002)
236 LETTER dated 3/12/01 from Michael S. Ross, Esq. to Mag. Pollak confirm conversation that he had been retained to represent Cochran Neufeld & Scheck, LLP and Rubenstein & Rynecki and enclosing notice of motion. (Fernandez, Erica) (Entered: 10/24/2002)
237 NOTICE of Motion by deft Cochran Neufeld & Scheck, LLP and the law firm of Rubenstein & Rynecki for an Order 1) invalidating claims made by Carl W. Thomas, Esq., Brian Figeroux, Esq, their Law Firm of Thomas & Figeroux and Casilda E. Roper-Simpson, Esq. they are entitled to share in the legal fees to be generated in the settlement of this case; and 2) precluding counsel from discussing or disclosing this matter, or any other confidential or secret client information in the cse, outside of the courtroom. (Fernandez, Erica) (Entered: 10/24/2002)
238 MEMORANDUM in support of [237-1] notice of motion to invalidate fee claims and for a protective order by Cochran Neufeld & Scheck, LLP and the law firm of Rubenstein & Rynecki. (Fernandez, Erica) Modified on 10/24/2002 (Entered: 10/24/2002)

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10/24/2002
10/24/2002 10/24/2002 10/24/2002 10/24/2002 10/24/2002 10/25/2002 10/25/2002 10/25/2002 10/25/2002

239 ORDER directing that until further Order of this Court, Carl W. Thomas, Esq., Brian Figeroux, Esq., Casilda E. Roper-Simpson, Esq., Johnnie L. Cochran, Esq. Peter Neufeld, Esq., Barry Scheck, Esq., Sanford Rubenstein Esq. and their attorneys, agents, and employees, shall not discuss or reveal the contents of the motion filed by pltfs or any other confidential or secret client information in the case (See order for further details). Signed by Magistrate Cheryl L. Pollak , on 3/12/01. (Fernandez, Erica) (Entered: 10/24/2002)
240 MEMORANDUM in opposition to [237-1] notice of motion to disallow claim of Carl W. Thomas, Esq., Brian Figeroux, Esq., and Thomas & Figeroux by Thomas & Figeroux and Carl Thomas and Brian Figeroux, Esq. (Fernandez, Erica) (Entered: 10/24/2002)
241 NOTICE of Cross Motion to enforce fee agreements, to vacate the protective order herein and opposition to Motion to invalidate fee claims by Casilda E. Roper-Simpson, Esq. (Fernandez, Erica) (Entered: 10/24/2002)
242 MEMORANDUM in support of [241-1] notice of cross-motion to enforce fee agreements, to vacate the protective order herein and in opposition to motion to invalidate fee claims by Casilda E. RoperSimpson, Esq (Fernandez, Erica) (Entered: 10/24/2002)
243 AFFIDAVIT of Casilda E. Roper-Simpson in support of [241-1] notice of cross-motion. (Fernandez, Erica) (Entered: 10/24/2002)
244 LETTER dated 3/26/01 from Michael S. Ross, Esq. to Mag Pollak in opposition to Mr. Thomas' request for an extension of time to respond to the motion filed two weeks ago. (Fernandez, Erica) (Entered: 10/25/2002)
245 LETTER dated 4/2/01 from Thomas A. Kissane, Esq. to Mag. Pollak notifying that his firm has been retained by Carl W. Thomas, Brian Figeroux, Esq. and their law firmof Thomas & Figeroux in connection with the fee dispute among pltfs' counsel. (Notice of appearance attached) (Fernandez, Erica) (Entered: 10/25/2002)
246 ORDER: Hearing adjourned. Mr. Kissane and Mr. Okoli to submit papers in response to Mr. Ross' submissions on or before 4/18/01; Reply due 4/25/01. Signed by Magistrate Cheryl L. Pollak , on 4/5/01. (See Pg. 4 of letter from Michael S. Ross, dated 4/4/01.) (Fernandez, Erica) (Entered: 10/25/2002)
247 LETTER dated 4/18/01 from Thomas A. Kissane, Esq. to Mag. Pollak enclosing the opposition papers of Thomas & Figeroux. (enclosures not attached) (Fernandez, Erica) (Entered: 10/25/2002)
248 LETTER dated 4/2/01 from Michael S. Ross, Esq. to Mag Pollak requesting that the response to the opposing papers be deferred for one week after the time they fully comply with the Court's previously issued Order. (Fernandez, Erica) (Entered: 10/25/2002)

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10/25/2002 10/25/2002 10/25/2002 10/25/2002
10/25/2002
10/25/2002 10/25/2002 10/25/2002 10/25/2002 10/28/2002
10/28/2002 10/28/2002

249 LETTER dated 4/25/01 from K.C. Okoli, Esq. to Mag. Pollak in response to the letter of Michael S. Ross, Esq dated 4/25/01. (Fernandez, Erica) (Entered: 10/25/2002)
250 LETTER dated 4/26/01 from Thomas A. Kissane, Esq. to Mag Pollak in response to the letter of Michael S. Ross, Esq. dated 4/25/01. (Fernandez, Erica) (Entered: 10/25/2002)
251 LETTER dated 5/2/01 from Michael S. Ross, Esq. to Mag. Pollak in response to Mr. Okoli's letter of 4/25/01 and Mr. Kissane's letter of 4/26/02. (Fernandez, Erica) (Entered: 10/25/2002)
252 LETTER dated 6/1/01 from Michael S. Ross, Esq. to Thomas A. Kissane, Esq. confirming telephone conversation and advising that Mag Pollak will not be addressing the issues raised in 5/2/01 letter until the final settlement of the underlying case. (Fernandez, Erica) (Entered: 10/25/2002)
253 LETTER dated 7/20/01 from Michael S. Ross, Esq. to Mag. Pollak attaching 7/18/01 Village Voice article that demonstrates that Messrs. Figeroux and Thomas have provided information to the Village Voice in violation of Order. (Enclosure attached) (Fernandez, Erica) (Entered: 10/25/2002)
254 LETTER dated 7/24/01 from Michael S. Ross, Esq. to Mag. Pollak enclosing a draft of the Order that captures the consensus expressed in the previous days' conference call. (enclosure attached) (Fernandez, Erica) (Entered: 10/25/2002)
255 LETTER dated 7/27/02 from K.C. Okoli, Esq. to Mag. Pollak regarding his objection to the proposed modified order submitted by Michael S. Ross, Esq. (Fernandez, Erica) (Entered: 10/25/2002)
256 LETTER dated 7/27/02 from Michael S. Ross, Esq. to Mag Pollak enclosing a revised proposed Order. (enclosure attached) (Fernandez, Erica) (Entered: 10/25/2002)
257 ORDER: Until the issue of the revised language of the order is resolved, all documents should be filed under seal. Signed by Magistrate Cheryl L. Pollak , on 8/2/01. (see pg.2 of letter dated 8/2/01 from Michael S. Ross, Esq) (Fernandez, Erica) (Entered: 10/25/2002)
258 ORDER (rec'd for docketing 10/28/02): Hearing adjourned and all submissions stayed pending further motion by Thomas' estate. Signed by Magistrate Cheryl L. Pollak , on 8/8/01. (See pg. 2 of letter dated 8/6/01 from Thomas A. Kissane, Esq.) (Fernandez, Erica) Modified on 10/28/2002 (Entered: 10/28/2002)
259 ORDER (rec'd for docketing on 10/28/02): A conference has been scheduled for 1/4/02 at 3:00 PM. Mr. Ross is to notify all parties. Signed by Magistrate Cheryl L. Pollak , on 11/13/01. (Fernandez, Erica) (Entered: 10/28/2002)
260 LETTER dated 11/13/01 from Michael S. Ross, Esq. to Mag. Pollak to

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10/28/2002 10/28/2002 10/28/2002 10/28/2002 10/28/2002 10/28/2002 10/28/2002
10/28/2002

correct one matter contained in the letter to Chambers dated 11/12/01. (Fernandez, Erica) (Entered: 10/28/2002)
261 LETTER dated 11/19/01 from Bradley D. Simon, Esq. to Mag Pollak enclosing a Stipulation of Substitution executed on behalf of Ms. Elizabeth Thomas, administrator of the estate of Carl Thomas. (proposed order attached) (Fernandez, Erica) (Entered: 10/28/2002)
262 LETTER dated 12/5/01 from Michael S. Ross, Esq. to Mag. Pollak submitting for resolution of several issues in advance of the 1/4/02 conference in an effort to save time. (Fernandez, Erica) (Entered: 10/28/2002)
263 ORDER: request granted; counsel for Brian Figeroux, Esq. request that the date for the exchange of witness lists, 1/2/02, be deferred so that counsel can have an opportunity to address at the 1/4/02 conf the affect of the pending exparte, gag order upon their ability to confer with potential witnesses. Signed by Mag Pollak, on 12/10/01. (See letter dated 12/10/01 from Thomas A. Kissane, Esq.) (Fernandez, Erica) (Entered: 10/28/2002)
264 AFFIDAVIT of Brian Figeroux in support of motion by the firm of Thomas & Figeroux to enforce their retainer agreement signed by the partnerships of Cochran, Neufeld and Scheck, LLP, Rubenstein & Rynecki and Thomas & Figeroux on 11/3/97. (Fernandez, Erica) (Entered: 10/28/2002)
265 LETTER dated 12/26/01 from Michael S. Ross, Esq. to Mag. Pollak addressing defects in the affidavit submitted by Brian Figeroux, Esq. (enclosures attached) (Fernandez, Erica) (Entered: 10/28/2002)
266 LETTER dated 1/2/02 from Michael S. Ross, Esq. to Mag. Pollak submitting the names of the individuals who will be called as witnesses at the hearing. (Fernandez, Erica) Modified on 10/28/2002 (Entered: 10/28/2002)
267 ORDER (rec'd for docketing on 10/28/02): It is ordered with the consent of the parties that 1. any documents or other submissions made in connection with this proceeding on attorneys' fees shall remain confidential and shall not be provided to the press, to any prospective witness, or to any third parties other than the attorneys who are claiming fees and their counsel; 2. the parties and their counsel may speak with potential witnesses about the case, but may not show any of the documents or other submissions filed in connection with this proceeding to potential witnesses, nor may they quote from such documents or submissions; and 3. under no circumstances may the parties or their counsel refer to or discuss with the press, with any witnesses, or with any third parties, the issues raised in paragraph #14 of the Affidavit of Brian Figeroux, dated 12/19/01. This order shall be filed under seal. Signed by Mag. Pollak on 1/8/02. (Fernandez, Erica) (Entered: 10/28/2002)
268 ORDER: request granted; Cochran Neufeld & Scheck, LLP and its individual partners, along with the law firm of Rubenstein & Rynecki to respond to adversaries's papers concerning modification of the 3/21/02

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Page 52 of 60

10/28/2002 10/28/2002 10/28/2002
10/28/2002 10/28/2002 10/28/2002 11/01/2002 11/15/2002 11/15/2002 11/15/2002

Protective Order, be extended one week, to 2/25/02. Signed by Magistrate Cheryl L. Pollak , on 2/19/02. (See pg.2 of letter dated 2/19/02 from Michael Ross, Esq.) (Fernandez, Erica) (Entered: 10/28/2002)
269 MEMORANDUM in support of the Proposed Modifications to the protective order submitted by counsel for the Law Firm of Cochran Neufeld & Scheck, LLP and Rubenstein & Rynecki. (Fernandez, Erica) (Entered: 10/28/2002)
270 LETTER dated 8/2/02 from Bradley D. Simon, Esq. to Mag. Pollak opposing request by Michael S. Ross, Esq. to adjourn scheduled 9/17/02 hearing. (Fernandez, Erica) (Entered: 10/28/2002)
271 LETTER dated 9/19/02 from K.C. Okoli, Esq. to Mag. Pollak regarding Bradley D. Simon's letter dated 9/18/02 seeking a December 2002 date for the hearing of the fee dispute and informing the Court that he will be outside of the US from 12/9/02 until 12/31/02 and will be unable to accede to a date in mid-December 2002. (Fernandez, Erica) (Entered: 10/28/2002)
272 LETTER dated 9/20/02 from Michael S. Ross, Esq. to Mag. Pollak in response to Bradley D. Simon, Esq.'s letter dated 9/20/02 in opposition to his request for an adjournment. (Fernandez, Erica) (Entered: 10/28/2002)
273 LETTER dated 9/20/02 from Bradley D. Simon, Esq. to Mag. Pollak requesting that the Estates of Carl Thomas' application to adjourn the hearing be granted. (Fernandez, Erica) (Entered: 10/28/2002)
274 ORDER: Request for adjournment is denied. Hearing on fees shall begin at 9:00 AM on 10/15/02. Signed by Magistrate Cheryl L. Pollak , on 9/23/02. (See letter dated 9/18/02 from Bradley D. Simon, Esq.) (Fernandez, Erica) (Entered: 10/28/2002)
275 LETTER dated 10/23/02 from Michael S. Ross, Esq. to Mag. Pollak enclosing "Exhibit 61", the 8/15/97 Retainer Agreement between the law firm of Rubenstein & Rynecki and the Louimas. (enclosure not attached) (Fernandez, Erica) (Entered: 11/01/2002)
276 LETTER dated 11/11/02 from Michael S. Ross, Esq. to Mag. Pollak with respect to a proposed schedule for the remaining trial dates. (Fernandez, Erica) (Entered: 11/15/2002)
277 LETTER dated 11/12/02 from Thomas A. Kissane, Esq. to Mag. Pollak in response to Mr. Ross' letter regarding the scheduling of witnesses. (Fernandez, Erica) (Entered: 11/15/2002)
278 ORDER: It is hereby ordered that T&F's motion in limine be DENIED. This Court hereby finds that T&F has opened the door to the introduction of all testimony regarding transactions and communications with Carl W. Thomas. Alternatively, this Court finds that New York's Dead Man Statute does not apply in these proceedings due to the underlying federal claims and the Court will thus consider admissible the testimony of any

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11/22/2002 12/03/2002 12/03/2002 01/15/2003 01/16/2003 01/17/2003 01/27/2003 01/30/2003
02/28/2003 03/26/2003

witnesses regarding the statements or actions of Carl W. Thomas. Signed by Magistrate Cheryl L. Pollak , on 11/14/02. (Fernandez, Erica) (Entered: 11/15/2002)
279 ORDER: This Court hereby grants CN&S request for an order requiring production of Ms. Roper-Simpson's files subject to her right to assert her lien against the security in the escrow account. Signed by Magistrate Cheryl L. Pollak , on 11/21/02. (Fernandez, Erica) (Entered: 11/22/2002)
280 LETTER dated 11/27/02 from K.C. Okoli, Esq. to Michael S. Ross, Esq. requesting Pltf's exhibits 72, 73, and 74 which bear OCA's Stamp acknowledging receipt of the same for filing. (Fernandez, Erica) (Entered: 12/03/2002)
281 LETTER dated 11/27/02 from Michael S. Ross, Esq. to Thomas A. Kissane, Esq. and Bradley D. Simon, Esq. enclosing Pltf's exhibits 70-74. (enclosures attached) (Fernandez, Erica) (Entered: 12/03/2002)
282 ORDER; request granted; extension to 1/22/03 to submit Proposed findings, and the other dates to be adjusted accordingly . Signed by Magistrate Cheryl L. Pollak , on 1/14/03. (See letter dated 1/14/03 from Michael S. Ross, Esq.) faxed by chambers on 1/14/03. (Fernandez, Erica) Modified on 01/15/2003 (Entered: 01/15/2003)
283 ENDORSED ORDER: GRANTING the request for a telephone conference on 01/16/03 at 5:00pm. ( signed by Magistrate Cheryl L. Pollak ,). see letter dtd 01/15/03 by Thomas A. Kissane. (Sica, Michele) (Entered: 01/16/2003)
284 Calendar entry: Case called on 1/17/03 for telephone conf. Rulings: Mr. Kissane's request for an extension of time to brief sanctions motion response until after briefing on the underlying motion is granted; Parties are directed to confer and agree on dates. (Fernandez, Erica) (Entered: 01/21/2003)
305 Letter dated 1/24/03 from Michael Ross to Mag. Pollak enclosing two copies of Post-Hearing Proposed Findings of Facts and Conclusions of Law. (Copies not attached) (Black, Amanda) (Entered: 11/29/2004)
285 ORDER: application granted; Response to Mr. Ross' submission to be due 2/28/03; any submission by Mr. Okoli to Mr. Simon to be made by 3/14/03; and any subsequent submission by Mr.Ross to be made by 3/28/03. Signed by Magistrate Cheryl L. Pollak , on 1/29/03. (See letter dated 1/29/03 from Thomas A. Kissane, Esq.) (Fernandez, Erica) (Entered: 01/30/2003)
286 ORDER: GRANTING the request for an additional one week extention of time to submit the response of T&F to Mr. Ross' papers in this matter. (see letter dtd 02/27/03 by Thomas A. Kissane). ( signed by Magistrate Cheryl L. Pollak , on 2/27/03). (Sica, Michele) (Entered: 02/28/2003)
287 ORDER, endorsed on letter dated 3/24/03 from Bradley Simon to MJ Pollak: The time for the Estate of Carl Thomas and Casilda Roper-

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04/02/2003 04/14/2003 05/01/2003 05/01/2003 05/05/2003 07/21/2004 08/05/2004 08/18/2004 08/20/2004 08/20/2004

Simpson to submit their respective briefs is extended to 4/11/03. (signed by Magistrate Cheryl L. Pollak, undated). (Fahey, Lauren) (Entered: 03/26/2003)
288 LETTER dated 3/24/03 from Bradley D. Simon, Esq. to Mag. Pollak requesting an additional two weeks to submit the Estate of Carl Thomas' post hearing brief until 4/11/03. (Fernandez, Erica) (Entered: 04/02/2003)
289 ORDER: Request granted; the time for Ms. Roper-Simpson and the Estate of Carl Thomas to submit their respective briefs be extended to 4/18/03 . Signed by Magistrate Cheryl L. Pollak, on 4/9/03. (See letter from K.C. Okoli, Esq. dated 4/9/03) faxed by chambers on 4/10/03. (Fernandez, Erica) (Entered: 04/14/2003)
290 LETTER dated 04/22/03 from Michael S. Ross to Judge Pollak, requesting that Your Honor accept the reworded and appropriately corrected language set forth above as to the single paragraph on pg. 14-15 of Plaintiffs' 03/24/03 post hearing findings of fact and conclusions of law. (enclosure attached). (Sica, Michele) (Entered: 05/01/2003)
291 LETTER dated 04/29/03 from Thomas A. Kissane to Magistrate Pollak, regarding a fee dispute. also in response to the letter of plaintiffs'counsel. (Sica, Michele) (Entered: 05/01/2003)
292 ORDER: GRANTING the additional two weeks, to 05/16/03, to submit Plaintiff's Reply proposed findings of fact and conclusion of law. ( signed by Magistrate Cheryl L. Pollak , on 05/01/03). (Sica, Michele) (Entered: 05/05/2003)
293 REPORT AND RECOMMENDATION. Recommending that Cochran, Neufeld & Scheck's motion for fee forfeiture be GRANTED. Objections to R&R due by 8/4/2004. Signed by Judge Cheryl L. Pollak on 07/21/04. (DMC\Pollak, Cheryl) (Entered: 07/21/2004)
294 Letter from Thomas A. Kissane, Esq. to Judge Johnson dated 7/30/04 requesting an an extension of time through and until 8/13/04 for the filing of objections to the report and recommendation of Mag Pollak. (Fernandez, Erica) (Entered: 08/05/2004)
295 ORDER: Request granted. Counsel requests that Mr. Figeroux be given through and until 10/1/04 to make the submission contemplated by your report and recommendation . Signed by Judge Cheryl L. Pollak on 8/17/04. (Endorsed on letter dated 8/13/04 from Thomas A. Kissane, Esq.)(Fernandez, Erica) (Entered: 08/18/2004)
296 Letter from Thomas A. Kissane, Esq. to Judge Johnson dated 8/11/04 enclosing a stipulation of substitution executed by each of Mr. Figeroux, Mr. Simon and the undersigned, substituting Simon & Partners in place of Schlam Stone & Dolan, LLP as counsel for T&F. (Fernandez, Erica) (Entered: 08/20/2004)
297 Objections of Casilda Roper-Simpson to the 293 REPORT AND RECOMMENDATIONS of Mag. Pollak dated 7/21/04. (Fernandez,

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08/20/2004 08/23/2004 08/24/2004
09/09/2004
09/28/2004 10/05/2004 10/14/2004 10/18/2004 11/16/2004
12/10/2004 12/10/2004

Erica) (Entered: 08/23/2004)
328 The Objections of Casilda Roper-Simpson to the Report and Recommendation by Magistrate Judge Cheryl L. Pollak dated 7/21/04 by Casilda E. Roper-Simpson (rec'd in docketing 3/4/05) (Fernandez, Erica) (Entered: 03/04/2005)
298 Letter dated 7/27/04 from Bradley Simon to Judge Johnson, Jr. requesting an extension of time to file objections to Mag. Pollak's Report and Recommendations. (Black, Amanda) (Entered: 08/23/2004)
299 MEMORANDUM OF LAW IN SUPPORT of the Estate Carl Thomas' and the Law Firm of Thomas & Figeroux's Objections to Mag Pollak's July 21, 2004 293 REPORT AND RECOMMENDATIONS filed by Bradley D. Simon on behalf of the Law Firm of Thomas & Figeroux and the Estate of Carl Thomas.(Fernandez, Erica) (Entered: 08/25/2004)
300 Letter from Michael S. Ross, Esq. to Judge Johnson dated 8/26/04 requesting that your Honor confirm Mag Pollak's Report and Recommendation denying the defts, individually and collectively, any share of the legal fees generated in the settlement of Mr. Louima's case. (Fernandez, Erica) (Entered: 09/09/2004)
301 ORDER: Request granted; Counsel for Brian Figeroux, Esq. request a two week extension of the submission date to 10/15/04. Signed by Judge Cheryl L. Pollak on 9/27/04. (Endorsed on letter dated 9/27/04 from Thomas A. Kissane, Esq.)(Fernandez, Erica) (Entered: 09/28/2004)
302 MEMORANDUM AND ORDER: After considering the parties' arguments, this Court adopts and affirms Mag Pollak's report and recommendation in part. Signed by Judge Sterling Johnson Jr. on 9/28/04. c/m by chambers(Fernandez, Erica) (Entered: 10/05/2004)
303 NOTICE OF APPEAL as to 302 Memorandum & Opinion signed 9/28/04 and filed 10/5/04, by attorney for Casilda E. Roper-Simpson. Filing fee $ 255.00, receipt number 300603. Service made by Clerk. Acknowledgment requested. (McGee, Mary Ann) (Entered: 10/18/2004)
Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 303 Notice of Appeal (McGee, Mary Ann) (Entered: 10/18/2004)
304 USCA Scheduling Order as to 303 Notice of Appeal filed by Casilda E. Roper-Simpson,. Appeal Record due by 12/6/2004. USCA#04/5533-cv. Appellant's brief shall be filed on or before 12/13/04. Appellee brief shall be filed on or before 1/12/05. That the argument shall be heard no earlier than the week of 2/21/05.(Drayton, Lorraine) (Entered: 11/19/2004)
306 Letter from Richard H. Dolan, Esq. to Mag Pollak dated 12/8/04 confirming attendance at the conference scheduled on 1/5/05 to discuss the pending sanctions motion. (Fernandez, Erica) (Entered: 12/10/2004)
307 Letter from Michael S. Ross, Esq. to Mag Pollak, dated 12/9/04 confirming that he will be appearing at the court conference scheduled on

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Page 56 of 60

02/23/2005 02/28/2005
02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005

1/5/04 at 4:00 PM. (Fernandez, Erica) (Entered: 12/10/2004)
308 Letter from Michael S. Ross, Esq. to Mag Pollak dated 2/18/05 advising the Court that the Sanctions Motions before the Court are hereby withdrawn with prejudice. (Fernandez, Erica) (Entered: 02/23/2005)
Electronic Index to Record on Appeal sent to US Court of Appeals re 301 Order, 300 Letter,, 302 Memorandum & Opinion, 295 Order,, 297 Notice (Other), 296 Letter,, 299 Notice (Other), Notice (Other), 293 REPORT AND RECOMMENDATIONS re [149] Complaint - Miscellaneous,, filed by Abner Louima, Micheline Louima, 303 Notice of Appeal For docket entries without a hyperlink, contact the court and we'll arrange for the document(s) to be made available to you. (McGee, Mary Ann) (Entered: 02/28/2005)
309 TRANSCRIPT of Civil Cause for Hearing held on 10/16/02 before Judge Pollak. Counsel for parties present. (Fernandez, Erica) (Entered: 02/28/2005)
310 TRANSCRIPT of Proceedings (Attorney's Fees) held on 10/17/02 before Judge Pollak. Court Reporter: Ronald Tolkin. Counsel for parties present. (Fernandez, Erica) (Entered: 02/28/2005)
311 TRANSCRIPT of Hearing held on 10/18/02 before Judge Pollak. Counsel for parties present. Court Reporter: Sheldon Silverman. (Fernandez, Erica) (Entered: 02/28/2005)
312 TRANSCRIPT of Hearing held on 10/18/02 before Judge Pollak. Counsel for parties present. Court Reporter: Sheldon Silverman. (Fernandez, Erica) (Entered: 02/28/2005)
313 TRANSCRIPT of Trial held on 10/22/02 before Judge Pollak. Counsel for parties present. Court Reporter: Henry Shapiro. (Fernandez, Erica) (Entered: 02/28/2005)
314 TRANSCRIPT of Civil Cause for Hearing held on 10/24/02 before Judge Pollak. Counsel for parties present. (Fernandez, Erica) (Entered: 02/28/2005)
315 TRANSCRIPT of Conference held on 9/18/98 before Judge Cheryl L. Pollak. Court Reporter: Anthony Mancuso. (Black, Amanda) (Entered: 02/28/2005)
316 TRANSCRIPT of Hearing held on 10/25/02 before Judge Pollak. Counsel for parties present. (Fernandez, Erica) (Entered: 02/28/2005)
317 TRANSCRIPT of Proceedings held on 3/16/00 before Judge Cheryl Pollak. Court Reporter: M. Brymer. (Black, Amanda) (Entered: 02/28/2005)
318 TRANSCRIPT of Hearing for Sanctions held on 4/28/00 before Judge Cheryl L. Pollak. Court Reporter: Frederick Guerino. (Black, Amanda) (Entered: 02/28/2005)

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02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005 02/28/2005 03/03/2005
03/03/2005
03/03/2005 03/03/2005 03/03/2005

319 TRANSCRIPT of Hearing for Attorney Fees held on 11/14/02 before Judge Pollak. Counsel for parties present. Court Reporter: Ronald E. Tolkin. (Fernandez, Erica) (Entered: 02/28/2005)
320 TRANSCRIPT of Hearing held on 11/18/02 before Judge Pollak. Counsel for parties present. Court Reporter: Fred Guerino. (Fernandez, Erica) (Entered: 02/28/2005)
321 TRANSCRIPT of Hearing for Attorney's Fees held on 11/22/02 before Judge Pollak. Counsel for parties present. Court Reporter: Ronald E. Tolkin. (Fernandez, Erica) (Entered: 02/28/2005)
322 TRANSCRIPT of Hearing for Attorney's Fees held on 11/22/02 before Judge Pollak. Counsel for parties present. Court Reporter: Ronald Tolkin. (Fernandez, Erica) (Entered: 02/28/2005)
323 TRANSCRIPT of Bench Trial held on 12/2/02 before Judge Pollak. Counsel for parties present. Court Reporter: Gene Rudolph. (Fernandez, Erica) (Entered: 02/28/2005)
324 TRANSCRIPT of Hearing for Attorney's Fees held on 12/3/02 before Judge Pollak. Court Reporter: Ronald E. Tolkin. (Fernandez, Erica) (Entered: 02/28/2005)
325 TRANSCRIPT of Hearing for Attorney's Fees held on 12/5/02 before Judge Pollak. Counsel for parties present. Court Reporter: Ronald E. Tolkin. (Fernandez, Erica) (Entered: 02/28/2005)
326 Certified and Transmitted the First Suppl. Record on Appeal to US Court of Appeals re 303 Notice of Appeal. Copy of Clerk's Certificate attached to this entry. (Vaughn, Terry) Modified on 3/3/2005 to indicate that only the Clerk's Certificate, four copies of the Index, and a cc of the docket sheet were sent to the Circuit. Documents are in the Appeals File Room. (Vaughn, Terry). (Entered: 03/03/2005)
327 POST-HEARING MEMORANDUM OF LAW OF CASILDA E. ROPER-SIMPSON in Opposition to Plaintiff's Application for Fee Forfeiture and in Support of her Cross-Motion to Enforce Fee Agreements by Casilda E. Roper-Simpson (rec'd 3/4/05 in docketing) (Fernandez, Erica) Modified to indicate: this document rec'd 4/22/00. (Glenn, Marilyn). (Entered: 03/04/2005)
329 Supplemental Memorandum of Law in Opposition to Plaintiffs' Application for Fee Forfeiture and for Recovery of Fees Due. (rec'd on 3/3/05 in docketing) (Fernandez, Erica) (Entered: 03/04/2005)
330 MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS' APPLICATION FOR FEE FORFEITURE AND FOR RECOVERY OF FEES DUE filed by Attorneys for Thomas & Figeroux and Brian Figeroux, Esq. (Fernandez, Erica) (Entered: 03/04/2005)
331 Letter from Thomas A. Kissane, Esq. to Mag Pollak dated 5/23/03 (rec'd in docketing 3/3/05) advising the Court of a development that narrows the issues before the Court for post-hearing resolution. (Fernandez, Erica)

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03/04/2005 03/11/2005
03/14/2005 03/23/2005 04/21/2005 03/23/2006 04/13/2006 10/17/2006
10/26/2006 10/27/2006
10/31/2006

(Entered: 03/04/2005)
332 Second Supplemental INDEX on Appeal transmitted to US Court of Appeals re 303 Notice of Appeal. USCA#04-5533-cv. (McGee, Mary Ann) Modified on 3/8/2005 (McGee, Mary Ann). (Entered: 03/08/2005)
333 ORDER: The Clerk of Court is hereby instructed to close the abovecaptioned case, as the motions for sanctions, the sole remaining issue, was withdrawn in a letter dated 2/18/05 to Mag Pollak (docket #308). Thus, there are no issues pending before this Court and the case is currently on appeal to the Second Circuit. Signed by Judge Sterling Johnson Jr. on 3/9/05. c/m by chambers(Fernandez, Erica) (Entered: 03/11/2005)
334 Acknowledgment 1st SUPPLEMENTAL from USCA received re: 303 Appeal. Acknowledgment signed by JC on 3/9/05. USCA#04/5533. (Drayton, Lorraine) (Entered: 03/15/2005)
335 Acknowledgment from USCA received re: 303 Appeal. Acknowledgment signed by JC on 3/11/0. USCA#04/5533-cv (Drayton, Lorraine) (Entered: 03/23/2005)
336 TRANSCRIPT of Proceedings held on 11/21/02 before Judge Pollak. Court Reporter: Allan R. Sherman. (Fernandez, Erica) (Entered: 04/21/2005)
The file for this case is in the file room (two boxes) on the first floor. The file is not in archives. (Brown, Marc) (Entered: 03/23/2006)
337 MANDATE of USCA as to 303 Notice of Appeal filed by Casilda E. Roper-Simpson,. It is ordered that the judgment of the District Court is AFFIRMED. Issued as Mandate: 4/11/06. USCA#04-5533-cv. (McGee, Mary Ann) (Entered: 04/17/2006)
338 REPORT AND RECOMMENDATION: Consistent with the mandate of the Second Circuit, this Court now respectfully recommends the release of funds held in escrow summarized from the District Court's Order, as affirmed by the Second Circuit: $2,928,901.66 plus investment earnings. Objections to R&R due by 10/31/2006. Ordered by Judge Cheryl L. Pollak on 10/17/06. (Caggiano, Diana) (Entered: 10/17/2006)
339 Letter objecting to the Report and Reccomendation of Magistrate Pollak by Estate of Carl Thomas. (Murphy, Kenneth) (Entered: 10/26/2006)
340 CORRECTED REPORT AND RECOMMENDATION re 338 This Court now respectfully recommends the corrected amount of $156,800.00 be released to the Estate of Carl Thomas, and the ensuring adjustments to the shares of funds held in escrow be applied as detailed in this Corrected Report and Recommendation. Objections to the Corrected R&R due by 11/10/06. Ordered by Judge Cheryl L. Pollak on 10/27/06. (Caggiano, Diana) (Entered: 10/27/2006)
341 Letter dated 10/26/06 from Michael S.Ross, Esq. to Judge Johnson informing the Court that his clients have no objection to the Report's

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10/31/2006
11/01/2006 11/08/2006 11/15/2006 11/16/2006
11/17/2006 11/22/2006
11/27/2006 11/28/2006 11/29/2006 12/04/2006

recommendation to have the $2,928,901.66 disbursed to counsel. (Fernandez, Erica) (Entered: 10/31/2006)
342 NOTICE of Change of Address: Michael S. Ross, Esq. counsel for Cochran Neufeld and Scheck, LLP, along with the law firm of Rubenstein & Rynecki advise the Court of their new address as follows: Law Offices of Michael S. Ross, The Lincoln Building, 60 East 42nd Street, Forty-Seventh Floor, NY, NY 10165. (Fernandez, Erica) (Entered: 10/31/2006)
346 Letter dated 10/31/06 to Judge Johnson from Brian D. Waller, Esq. informing the Court that the Estate has no objection to Mag Pollak's Corrected R&R dated 10/27/06. (Fernandez, Erica) (Entered: 11/17/2006)
343 Letter Application for Management Fee by Abner Louima. (Garnett, Ronald) (Entered: 11/08/2006)
344 Letter in Response to Ronald Garrett's Letter of November 8, 2006 by Abner Louima. (Brustin, Nick) (Entered: 11/15/2006)
345 SCHEDULING ORDER: A conference to discuss the Letter Application for Management Fee is scheduled for NOVEMBER 30, 2006 at 2:30 P.M., before the Honorable Cheryl L. Pollak, United States Magistrate Judge, in Room 1230, at 225 Cadman Plaza East, Brooklyn, New York. Ordered by Judge Cheryl L. Pollak on 11/16/06. (Caggiano, Diana) (Entered: 11/16/2006)
347 Letter dated 10/26/06 to Judge Johnson from K.C. Okoli informing the Court that Casilda E. Roper-Simpson has no objection to the 10/17/06 R & R of Mag Pollak. (Fernandez, Erica) (Entered: 11/17/2006)
348 STANDARD REFERRAL ORDER: The Civil Case here in above set forth is referred to a Mag Pollak for the following purposes: 343 Letter Application for Management Fee by Abner Louima . Ordered by Judge Sterling Johnson Jr. on 11/14/06. (Fernandez, Erica) (Entered: 11/22/2006)
349 ENDORSED LETTER ORDER: Letter dated 11/24/06 from Pery Krinsky requesting the 11/30/06 conference be adjourned to 12/1/06 @ 3:00 PM. RULING - Request Granted. Ordered by Judge Cheryl L. Pollak on 11/27/06. (Caggiano, Diana) (Entered: 11/27/2006)
350 Letter of Pery Krinsky Regarding Request for Documents in Advance of December 1, 2006 Conference by Abner Louima. (Brustin, Nick) (Entered: 11/28/2006)
351 ORDER: It is ORDERED that Mr. Garnett produce the above listed documents to the parties requesting them prior the scheduled hearing. So Ordered by Judge Cheryl L. Pollak on 11/29/06. (Caggiano, Diana) (Entered: 11/29/2006)
352 ENDORSED LETTER ORDER: Letter dated 10/26/06 from Michael Ross. So Ordered by Judge Cheryl L. Pollak on 12/1/06. (Caggiano, Diana) (Entered: 12/04/2006)

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12/04/2006

353 MINUTE ENTRY for Settlement Conference proceeding held before MJ Cheryl L. Pollak on 12/1/2006. Request for fees withdrawn. The escrow agent is directed to disburse the funds in accordance with the Court's prior orders and after consultation with counsel. (Caggiano, Diana) (Entered: 12/04/2006)

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 Roper-Simpson v. Scheck, 163 Fed.Appx. 70 (2006)
163 Fed.Appx. 70 This case was not selected for publication in the
Federal Reporter. United States Court of Appeals,
Second Circuit.
Casilda E. ROPER-SIMPSON, Interested-PartyAppellant, v.
Barry C. SCHECK, Johnnie L. Cochran and Sanford Rubenstein, Appellees,
Abner Louima and Micheline Louima, Plaintiffs, City of New York, New York Police Dept,
Patrolmen’s Benevolent Association of the City of New York, individually and in their official
capacity as New York City Police Officers, Justin Volpe, Charles Schwarz, Michael Bellomo, Jeffrey
Fallon, Francisco Rosario, Rolando Aleman, William F. Walsh, Jeremiah Quinlan, individually,
in his official capacity as a New York City Police Officer, and as a PBA Delegate, Louis Matarazzo, individually and in their official capacity, William Pagan, Frank Birnbaum, individually, and in their official capacity as New York City Police Officers, and in their official capacity as agents of the PBA,
Michael Immitt, Marcella Makebish, Patrick O’Sullivan, individually and in their official capacity, John Does, police officers and nonuniformed employees of the New York Police Department, the identity and number of whom is presently unknown; individually and in their official capacity as New York City Police Officers, Richard Roes, supervisory police officers of the City of New York, the identity and number of whom is presently unknown; and individually and in their official capacity as police officers and/or agents for the PBA, William Woes, agent for the PBA, the identity and number of whom is presently unknown, and Timothy Lee, in their official capacities as President of the PBA,
Defendants-Cross-Defendants, Peter Blaich, individually, in his official capacity as
a New York City Officer and as a PBD Delegate, Joseph O’Brien, individually, in their official
capacity as New York City Police Officers, and as PBA Delegates, Jeremiah Daly, individually, in their official capacities as New York City Officers, and as PBA Delegates, Patrick Lynch, individually, and in their official capacity as agents of the PBA, Anthony Abbate, individually and in their official capacity as employees of the Emergency Medical Service for the City of New York, Thomas Weise, in his official capacity as President of the PBA and Thomas Bruder, Defendants-Cross-Claimants-
Cross-Defendants.
No. 04-5533-CV. | Jan. 20, 2006.

Attorneys and Law Firms

K.C. Okoli, New York, New York, for Interested-PartyAppellant.

Bradley D. Simon, Simon & Partners LLP, New York, New York, for Appellees the Estate Carl W. Thomas and Thomas & Figeroux.

Michael Ross, Law Offices of Michael S. Ross, New York, New York, for Appellees Barry C. Scheck, Johnnie L. Cochran, Peter Neufeld and Sanford Rubenstein.

PRESENT: Hon. DENNIS JACOBS, Hon. PIERRE N. LEVAL, and Hon. CHESTER J. STRAUB, Circuit Judges.

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Order of the district court be AFFIRMED.

Casilda E. Roper-Simpson (“Roper-Simpson”) appeals from the September 28, 2004 Memorandum and Order of the United States District Court for the Eastern District of New York (Johnson, J.) finally determining the fee disputes among lawyers who provided legal services to Abner Louima: Roper-Simpson; Brian Figeroux and Carl W. Thomas (“Thomas & Figeroux”); Johnnie L. Cochran, Peter Neufeld, and Barry C. Scheck (“CN&S”); and Sanford Rubenstein (“Rubentstein”). Familiarity is assumed as to the facts, the procedural context, and the issues specified for appellate review.

As to the parties’ standing challenges: all of the parties stand to lose or gain financially from the division of fees. Roper-Simpson, and CN&S and Rubenstein therefore have standing to bring the fee dispute and to press this appeal.

Turning to the merits of Roper-Simpson’s appeal, “[w]e review a district court’s decision as to whether to award attorney’s fees for abuse of discretion.” Herman v. Davis Acoustical Corp., 196 F.3d 354, 356 (2d Cir.1999); see also Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 262 (2d Cir.2004). Magistrate Judge Pollak heard days of testimony regarding the work performed by Roper-Simpson and Thomas & Figeroux. The different metrics upon which this work could be valued were carefully considered. We find no abuse of discretion in the district court’s estimate of hours of work performed by the attorneys or in the calculation of fees based on the lodestar method.
We likewise find no abuse of discretion in the district

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Roper-Simpson v. Scheck, 163 Fed.Appx. 70 (2006)

court’s denial of an equal division of fees as between

	  

Roper-Simpson and Thomas & Figeroux, notwithstanding

a fee-sharing agreement between the two parties.

Magistrate Judge Pollak found that the precise terms of

the agreement are unclear. Moreover, the agreement itself

is unenforceable under New York law because it was

made without informing the client. See Naiman v. N.Y.

Univ. Hosps. Ctr., 351 F.Supp.2d 257, 263

(S.D.N.Y.2005); Code Prof. Resp. D.R. 2-106(D), N.Y.

Comp.Codes R. & Regs. tit. 22, § 1200.11(d). The district

court did not abuse its discretion in declining to follow the

agreement and instead awarding fees in quantum meruit

based on work actually performed.

For the reasons set forth above, the Order of the district court is AFFIRMED.

Parallel Citations 2006 WL 166438 (C.A.2 (N.Y.))

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