US Supreme Court Rules That Public Worker Testimony Is Protected From Retaliation

At 3020-a arbitration in New York City, the Department of Education tries cases with vengeance and bad faith. When someone succeeds in trumping their deck of cards, say with subpoenas and excellent testimony by witnesses who work for the Department but want to tell the truth, the Department yells "foul".

The attorneys at the Gotcha Squad are now telling principals to stop anyone in the school building who is subpoenaed to appear for a Respondent and testify against the Department. Principals are informing subpoenaed witnesses who work in the school (and who are asked to testify for the Respondent) that if they do appear at the arbitration they will be docked a day's pay.

So, please give this awesome decision by the United States Supreme Court to everyone put into that position.

Betsy Combier

Public Worker Testimony Is Protected, Justices Rule

By ADAM LIPTAKJUNE 19, 2014

WASHINGTON — The First Amendment protects government employees from retaliation for giving truthful testimony that was not part of their job responsibilities, a unanimous Supreme Court ruled Thursday.

The case involved Edward R. Lane, a former director of a youth program at a public community college in Alabama, who was fired after giving trial testimony in a public corruption trial.

“It would be antithetical to our jurisprudence,” Justice Sonia Sotomayor wrote for the court, “to conclude that the very kind of speech necessary to prosecute corruption by public officials — speech by public employees regarding information learned through their employment — may never form the basis for a First Amendment retaliation claim.”

Judge Sonia Sotomayor

“Such a rule,” she added, “would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”

Mr. Lane had discovered that a state legislator, Suzanne Schmitz, was on his program’s payroll, collecting $177,000, though she performed virtually no work. Mr. Lane fired her, and she vowed to get him back.

A federal grand jury indicted Ms. Schmitz on corruption charges. Mr. Lane, under subpoena, testified about what he had learned. Ms. Schmitz was convicted, sentenced to 30 months in prison and ordered to pay back the money.

Mr. Lane was nonetheless fired in 2009, and he sued the president of the college, Steve Franks, saying that his termination was retaliation for his testimony and a violation of his First Amendment rights. Mr. Franks said he let Mr. Lane go for financial reasons unrelated to his testimony.

The federal appeals court in Atlanta said it was unnecessary to decide who was right because public employees have no First Amendment protections for statements they make as part of their official duties.

Since “the record fails to establish that Lane testified as a citizen on a matter of public concern,” the appeals court said in an unsigned opinion, “he cannot state a claim for retaliation under the First Amendment.”

Justice Sotomayor said the appeals court was wrong on both points: Mr. Lane had testified as a citizen and his testimony was on a matter of public concern.

“Sworn testimony in judicial proceedings,” she wrote, “is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.”

“That is so,” she added, “even when the testimony relates to his public employment or concerns information learned during that employment.”

Justice Sotomayor also had little difficulty in determining that Mr. Lane’s testimony — about “corruption in a public program and misuse of state funds” — was on a matter of public concern.

Thursday’s decision in Lane v. Franks, No. 13-483, clarified the scope of the Supreme Court’s 2006 decision in Garcetti v. Ceballos, which cut back on First Amendment protections for public employees and ruled that a prosecutor’s internal memorandum prepared as part of his job was unprotected.

Justice Clarence Thomas, in a concurrence signed by Justices Antonin Scalia and Samuel A. Alito Jr., said Thursday’s decision did not address testimony from, say, police officers and crime lab analysts for whom court appearances are “a routine and critical part of their employment duties.”

While Mr. Lane established an important legal principle, he will not benefit from it. In the second part of her opinion, Justice Sotomayor wrote that Mr. Franks, the official who fired him, was protected by qualified immunity.

That doctrine required Mr. Lane to show not only that his rights were violated, but also that those rights were clearly established at the time. Justice Sotomayor said Mr. Lane could not overcome the second hurdle.

Lane v. Franks

FIRST AMENDMENT

QUALIFIED IMMUNITY

PUBLIC EMPLOYEES

RETALIATION

TESTIMONY

SUBPOENA

ISSUES: 

1. Does the First Amendment permit the government to retaliate against a public employee for sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary work duties?
2. Does qualified immunity preclude a claim for damages in this action?

ORAL ARGUMENT: 

April 28, 2014

COURT BELOW: 

United States Court of Appeals for the Eleventh Circuit

Lane is the former director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”); Steve Franks is the former president of CACC. As director of CITY, Lane conducted an audit and discovered that state representative Susan Schmitz was on CITY’s payroll, but had not come to work at the office or performed any work outside the office for CITY. Lane terminated Schmitz’s employment after she refused to report to work. After Schmitz’s termination at CITY, the FBI investigated her for mail fraud and fraud concerning a program receiving federal funds. Lane was subpoenaed and testified at both of Schmitz’s criminal trials. Lane testified that Schmitz had not been reporting to work at CITY, and was only receiving paychecks. Following Schmitz’s criminal trials, Franks terminated Lane. Lane sued Franks in his official and individual capacities, alleging that Franks violated Lane’s First Amendment rights by terminating Lane in retaliation for testifying against Schmitz. The Eleventh Circuit affirmed the district court’s ruling that because Lane’s speech was made in his official capacity as CITY’s director, he failed to state a claim for retaliation. The Supreme Court’s decision will clarify the scope of the First Amendment as it relates to protecting testifying public employees from retaliation by their employers.

QUESTIONS AS FRAMED FOR THE COURT BY THE PARTIES: 

1. Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?
2. Does qualified immunity preclude a claim for damages in such an action?

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FACTS

Petitioner Edward Lane is the previous Director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”), and Respondent Steve Franks is the former president of CACC. In 2006, Lane accepted a probationary position as director of CITY, and, as part of his duties, Lane began an audit of CITY’s finances. While conducting this audit Lane discovered that state representative Suzanne Schmitz was on CITY’s payroll, but had not come to work nor performed any work for the program. Lane was warned by CACC’s former president and lawyer that terminating Schmitz’s employment would negatively affect Lane and CACC. After Schmitz refused to report to work, Lane terminated Schmitz’s employment with CITY. Schmitz then sued, seeking to get her job back. Schmitz also told another CITY employee that she would “get [Lane] back” for terminating her. Schmitz went on to say that if Lane ever requested money from the state legislature Schmitz would tell him “you’re fired.”

Following Schmitz’s termination at CITY, the FBI began investigating Schmitz for mail fraud and fraud regarding a different federally funded program. Lane was subpoenaedand testified at Schmitz’s August 2008 federal criminal trial. Lane testified that Schmitz had not been reporting to work at CITY. Lane also testified that he had several phone conversations with Schmitz where he inquired about Schmitz’s work duties, and that he requested that she start reporting to work daily at CITY’s Huntsville office. Schmitz responded that she had gotten her job through her connections with the Alabama Education Association. In writing, Schmitz responded to Lane’s request by stating she would like to “continue to serve the CITY program in the same manner as [she had] in the past.” In February 2009, Lane testified to all of these facts again at Schmitz’s second criminal trial.  

As a result of large budget cuts in 2008, Lane and Franks discussed the possibility of laying off all probationary employees. Franks sent termination letters to Lane and twenty-nine CITY employees, all of whom had served less than three years at CITY. In the following days Franks rescinded all of the terminations except for Lane and one other employee. Franks stated that he did this because he discovered that many CITY employees were not actually probationary.

Lane sued Franks in his official capacity as CACC president and in his individual capacity, alleging that Franks terminated Lane as retaliation for testifying against Schmitz, thereby violating Lane’s First Amendment rights. The district court granted Frank’s motion forsummary judgment, concluding that because Lane’s speech was made in his official capacity as CITY’s director, Lane did not establish a prima facie case for a retaliation claim.The Eleventh Circuit affirmed. The Supreme Court granted certiorari to determine two questions. First, whether under the First Amendment, the government can retaliate against a public employee for testimony that was compelled by subpoena and not part of the employee’s regular job responsibilities. Second, whether qualified immunity precludes a claim for damages in an action such as this.  

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DISCUSSION

FIRST AMENDMENT LIMITATION AND IMPLEMENTATION 

As amici curiae in support of Petitioner Lane, the American Civil Liberties Union and the American Civil Liberties Union of Alabama (“ACLU”) argue that a witness who gives sworn testimony at a judicial proceeding is always speaking as a “citizen” on a “matter of public concern,” and therefore should be protected by the First Amendment. The ACLU argues that all sworn statements seek to advance the truth and maintain the integrity of the judicial process. Therefore, the ACLU asserts, a public employee’s sworn statement in a judicial processing is a matter of public concern just the same as any citizen. Additionally, the ACLU contends that a case-by-case review of a witness’s testimony is unnecessary because of the inherent importance of truthful testimony in the judicial system. The ACLU argues that a testifying witness should only be concerned with telling the truth, and not whether their testimony will anger their boss. Accordingly, the ACLU would have the Court establish a bright-line rule protecting all sworn statements under the First Amendment.

Respondent Burrow, acting President of the CACC, argues that the Court should not adopt a rule that all testimony counts as citizen speech touching on matters of public concern.Burrow contends that employees who speak in their official capacity cannot be considered to be speaking as citizens because the government is paying them for their speech.Burrow argues that for many government employees, testifying is a routine part of their job. Additionally, Burrow asserts that other employees are reasonably expected to promote their employer’s official position while testifying. Burrow states that “a governor’s chief of staff, the warden of a prison, the head of a state agency” are all examples of government employees that the government is warranted to replace if they are unable to promote the official government position while testifying. Burrow contends that just like private employers, government employers must be able to ensure that their employees testify accurately about the government’s position.

PUBLIC POLICY INCENTIVES FOR QUALIFIED IMMUNITY  

In support of Lane, the First Amendment Coalition argues that to encourage truthful testimony, the Court should recognize the longstanding public policy that in-court testimony must be specially protected against civil claims. The Coalition contends that historically, testifying witnesses have been immune from damages suits and that this immunity remains necessary today. The Coalition further contends that the foremost goal of the judicial system is to reach the truth, and that individual damages claims will only obstruct this goal. Specifically, the Coalition asserts that testifying witnesses could be persuaded to alter their testimony for fear of facing liability. The ACLU also contends that sworn statements must have absolute protection from civil liability to accord with the First Amendment. . 

Both Petitioner and Respondent agree that Lane has qualified immunity as a testifying witness. However, with respect to Franks’ liability for terminating Lane, Lane argues that qualified immunity does not protect Franks from liability because his conduct violated a clearly established right under the First Amendment. Lane contends that Franks could not have reasonably believed that he was acting in accordance with the law in the Eleventh Circuit when he terminated Lane.

Burrow counters that when Lane was terminated, there was no clear rule in the Eleventh Circuit that the First Amendment protected all government employees’ testimony concerning work-related matters; therefore, Burrow asserts that Franks has qualified immunity. Furthermore, Burrow contends that a qualified immunity defense should not require state officials to predict changes in federal law. Burrow contends that a bright-line rule which allows an officer to follow the law of their circuit, in spite of how it may differ from other precedents, would allow suits like this one to be resolved much earlier. Burrow asserts that the main reason behind the immunity doctrine is to ensure that unviable claims against government officials are resolved early in the litigation process.

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ANALYSIS

The Eleventh Circuit held that Lane’s testimony was made in his capacity as a government employee and therefore was not protected under the First Amendment. Both Petitioner Lane and Respondent Burrow seek reversal of this determination and argue that Lane gave testimony in his capacity as a concerned citizen on a matter of public concern and therefore warrants First Amendment protection. However, the parties disagree about how to determine who was speaking as a citizen and whether the matter was of public concern.Additionally, Lane believes that Franks is not entitled to qualified immunity because it is not available when an official violates a clearly established right—the right to testify— whereas Burrow argues that qualified immunity exists here and in all cases where government officers’ actions were consistent with governing circuit law.

THE SCOPE OF PROTECTED SPEECH FOR GOVERNMENT EMPLOYEES 

Both parties agree that the Court should follow its precedent set forth in Garcetti v. Caballos. In Garcetti, the Courtheld that so long as employees are speaking as a citizen about a matter of public concern, employers can only impose speech restrictions that are necessary for the employers to operate efficiently and effectively.

Lane argues that he gave his testimony as a citizen, not as an employee of the State. He contends that he was subpoenaed in his individual capacity as a fact witness and not under Federal Rule of Civil Procedure 30(b)(6), under which the subpoena is served on an organization who then designates the witness. Lane maintains that he—as an individual—had to decide how to respond to the subpoena, and if he had lied or failed to comply, he alone would have borne the repercussions. Moreover, when Lane testified at Schmitz’s second trial, he had already been terminated from his directorial position.

Lane argues that his testimony is protected by the First Amendment because it relates to a matter of public concern—as shown by the content, form, and context of his testimony.Lane points to Connick v. Myers, where the court recognized that speech giving the public information to evaluate the performance of an elected official is of public concern, as is speech exposing a breach of the public trust. Lane argues that his speech fell into the public-concern category because it revealed Schmitz’s corruption and drew attention to the broader public interest of exposing corruption. Moreover, Lane contends that when public employees, and all citizens, respond to subpoenas, they are performing a duty to society and that testimony vindicates a core First Amendment interest.  

Respondent Burrow concedes that the Eleventh Circuit erred in holding that Lane’s speech was entirely unprotected. Burrow contends that the Eleventh Circuit did not follow the practical analysis required by Garcetti, but instead applied an overly broad scope and held that an employee’s testimony will not be protected if it involves facts learned on the job.Burrow posits that the Eleventh Circuit’s faulty ruling arose from a misunderstanding about the facts of the Garcetti case. In Garcetti, the Supreme Court held that the First Amendment did not protect the employee’s speech because the employee was paid to write the speech which he then claimed to be protected. However, other Supreme Court holdings show that employee speech does not lose protection simply because it concerns the subject matter of employment. Therefore, the fact-based analysis called for by Garcettishows that Lane’s speech was not made pursuant to his official duties. Additionally, Burrow agrees that although what constitutes a public concern is less than clear, Lane’s testimony obviously fell within  the scope as it was integral to exposing and proving Schmitz’s corrupt scheme.  

Although, Burrow agrees that Lane testified as a citizen on a matter of public concern, Burrow expresses unease that the Court may follow other circuits and develop a per serule treating all subpoenaed testimony by a government employee as a matter of public concern. Instead of a per se rule, Burrow argues that courts should use the same practical analysis employed in assessing other kinds of employee speech. Although some circuits have held that all speech compelled by a subpoena is necessarily speech by a citizen, Burrow contends that the First Amendment should not prevent retaliation in cases where the government is paying employees who may testify as a routine part of their official duties, such as a police officer testifying about traffic stops, and crime scene technicians testifying about processing evidence. If questions arose as to a testifying police officer’s credibility, the mere fact that he was testifying should not prohibit supervisors from evaluating his performance.

Burrow also claims that Lane’s argument that subpoenaed testimony is vindicating a core First Amendment interest would turn the inquiry into a per se rule. Burrow contends that society’s interest in candid testimony should not automatically make all testimony into a matter of public concern. Rather, Burrow states that courts must evaluate both the content and forum to determine whether the speech regards a matter of public concern.

QUALIFIED IMMUNITY

Burrow argues that even though Lane spoke as a citizen on a matter of public concern, qualified immunity bars a suit against Franks. Burrow argues that under Supreme Court precedent, qualified immunity shields officials from suits for money damages unless the official violated a statutory or constitutional right that was “clearly established” at the time of the challenged conduct.   

Burrow contends that it was not “clearly established” that employees’ testimony about facts relating to employment was protected when Franks fired Lane. Burrow claims that the Eleventh Circuit has consistently followed the rule that involuntary testimony about an employee’s job is broadly unprotected by the First Amendment. For example, Burrow citesMorris v. Crow, where the Eleventh Circuit did not allow a police officer’s testimony to qualify for First Amendment protection because the officer was not speaking as a citizen.In Morris, the officer testified that another officer violated office policy when responding to an emergency. Although Burrow admits that the facts of Morris are distinguishable, Burrow claims that its holding—that involuntary testimony regarding an employee’s job is generally unprotected—dictated the result in this case at the circuit-court level.

Lane argues that in determining qualified immunity the appropriate question is whether  Franks could have reasonably believed that he was permitted to retaliate against an employee assisting in a federal corruption prosecution. Lane contends that Eleventh Circuit precedent supported Lane on this question at the time he was terminated. Lane points to Martinez v. City of Opa-Locka, where the Eleventh Circuit found an employee of the city’s purchasing department was retaliated against after she testified that a superior had violated bid procedures to purchase furniture for City Hall. In Martinez, the Eleventh Circuit recognized the plaintiff’s First Amendment claim and denied the defendant qualified immunity. Lane contends that because the facts of Martinez align with this case more closely than those of Morris, and because of the virtual unanimity of the other circuits, no public official in 2009 could reasonably believe that retaliation was constitutional in this case.

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CONCLUSION

This case will significantly impact the development of First Amendment law in the area of retaliation claims. Both parties agree that the determination below should be overturned and that Lane’s speech should be given First Amendment protections because he gave his testimony as a private citizen on a matter of public concern. But Burrow expresses concern about the dangers of creating a per se rule treating all subpoenaed testimony from a public employee as a matter of public concern. She thus argues for a fact-based, case-by-case inquiry into the content and context of the testimony at issue. Lane argues that Franks does not have immunity because he violated a constitutional right that was clearly established by case law in the Eleventh Circuit at the time of Lane’s termination, to which Burrow responds that Eleventh Circuit precedent leaves Lane’s testimony unprotected under the First Amendment or— at the very least—that Franks had not violated clearly established circuit law. Burrow contends that government officials should always be able to follow the law of their circuit without having to predict any future rulings by the Court. The outcome of this case will delineate the standard for assessing whether a public employee’s testimony is protected under the First Amendment, as well as a standard for determining when a public employee has qualified immunity. 

WRITTEN BY: 

Rose Nimkiins Petoskey

Katherine Hinderlie

EDITED BY: 

Stephen Wirth

ADDITIONAL RESOURCES: 

• Ruthann Robson, Constitutional Law Prof Blog, Court Grants Certiorari in Employee First Amendment Case: Lane v. Franks, (Jan. 19, 2014)
• Kevin P. McGowan, BNA.com, Court Will Review First Amendment Case of Employee Fired After Trial Testimony, (Jan. 21, 2014)

Hiring a Lawyer: Be Careful, the Future You Jeopardize Might Be Your Own

The lawsuit against the rubber room process filed in 2008 went into the garbage because the Plaintiff teachers did not properly look into the lawyers working on the lawsuit.

Betsy Combier

‘Rubber’ cluck fines

By Bruce Golding

December 11, 2010 

LINK

Two lawyers who challenged the Board of Ed’s policy of banishing suspended teachers to “rubber rooms” face $28,000 in fines over their “frivolous” charges.

Lawyer Joy Hochstadt violated court rules by claiming race discrimination under the 13th Amendment — which abolished slavery — after being warned she had no legal right to do so, Manhattan federal Magistrate Judge Andrew Peck ruled.

Co-counsel Nicholas Penkovsky, meanwhile, was slapped for pressing “previously dismissed hostile work environment claims without setting forth new facts.”

Peck recommended that Judge Victor Marrero — who dismissed the suit last month — sanction Penkovsky $7,000.

Peck also recommended a whopping $21,000 in fines for Hochstadt’s misconduct, noting that her race charge was only one of “numerous causes of action without any basis in law [or] fact.”

Penkovsky said yesterday that he didn’t have time to discuss the ruling.

Hochstadt didn’t return a request for comment.

Con Man and Snake Oil Salesman Ed Fagan Tries To Shut Down Parentadvocates.org., Lewenstein Serves Subpoena on Gizella Weisshaus

Parentadvocates.org

30 New York City teachers confined to 'rubber rooms' in New York City hired Ed Fagan to represent them in Federal Court, despite the hard work of Randi Weingarten and her 'SWAT' Team to gather the information needed for a fair and just resolution of their issues to proceed. Mr. Fagan is about to be disbarred in New Jersey, is bankrupt with $13.6 million in outstanding debts and in bankruptcy , and joined his ex-wife in a lawsuit against his ex-wife's partner, Margie, and Margie's parents, grandparents, etc., for $20 million. Full disclosure: his first and probably most famous client was holocaust victim Gizella Weisshaus, my friend for more than 10 years. On February 20, 2008, Plaintiff Florian Lewenstein served a subpoena on Gizella Weisshaus at her home in an effort to intimidate her and stop her from giving out information about Ed Fagan. I guess neither Florian nor Ed know Gizella very well.
by Betsy Combier





Ed Fagan, picture courtesy of Black Star News


From the desk of Betsy Combier:

DISCLAIMER: All information in this article, including the information on the blog "NYC Rubber Room Report", is already posted on the internet or was given to me by Gizella Weisshaus, a friend of mine for more than 10 years. In determining what is "true", I ask the reader to consider this: Mr. Ed Fagan has never spoken with Gizella Weisshaus since he "stole" (her words) her $82,000+. He calls her a liar without clarifying what she is lying about. We are not saying anything about Ed Fagan that has not been documented by evidence and witnesses.

But Edward D. Fagan, Esq. doesn't want me to tell you. On March 4, 2008, teacher Florian Lewenstein said to my doorman that he was Ed Fagan, and asked for me. I was not there - I was in Brooklyn - and the doorman told him that I was not there, that my daughter was. She (my daughter) called me and was worried about what to do, so I told her not to worry and just be sure that the doorman would not let "Mr. Fagan" upstairs. I called the doorman, and found out that "Mr. Fagan" had told him he had to go to the bathroom, and he entered the building and was wandering the building. I called my daughter who was home alone and told her not to open the door (she then called my second daughter and told her not to come home). My Superintendent found "Mr. Fagan", who then sat himself down in the lobby and would not leave. Finally, "Mr. Fagan" did leave, asking if he could give some papers to the doorman who said "no". "Mr. Fagan" left, saying "I'll be back". I filed a police complaint that evening.

As of March 11, 2008 I have not seen any papers, and my understanding is that no party to a case may serve their own papers on another party.

A lawsuit was filed against me, Michael Bloomberg, Joel Klein, Randi Weingarten, and the "United Federation of DOE staff" (whatever that is) on February 22, 2008, with Index number 08 CIV 0548, in United States District Court For the Southern District of New York. I was sued for writing this article about Ed Fagan, which I have done to help the victims of the actions of Ed Fagan in the Swiss bank case, one of whom I know quite well, Gizella Weisshaus. I have re-posted material already published elsewhere, or given and verified by me and other people connected with Mr. Fagan. I have made nothing up, nor am I out to "get" anyone. I also have put this article togetherwithout the assistance of anyone else except concerned non-parties to the lawsuit who have kindly sent me the documents you see on this website, in my capacity as a reporter and editor, so the following statement is not true (in a memo sent out by email to almost 100 people):
"Ms. Combier is not working on her own, but her work is clearly being supported and orchestrated by other parties...She does not have the time or the resources to invest in putting together the material she published so shortly after our last court hearing."

Gizella Weisshaus (PICTURED AT LEFT) wanted to attend the hearing, so I did too, on February 8 in Federal Court which is open to the public, Mr. Fagan.

Mr. Fagan was supposed to get his amended complaint in to Magistrate Peck at the beginning of February, but no complaint was filed until Feb. 22, 2008, much to the dismay of Magistrate Peck. See the transcript of the January 28, 2008 court appearance of Ed Fagan before Magistrate Judge Peck: pp. 1-36, pp. 37-50. (see Twana Adams v NYC BOE and the sanctions recommended by Fagan's partners, Attorneys Joy Hochstadt and Nick Penkovsky).

At approximately 5PM on Wednesday, February 20, 2008, Mr. Ed Fagan showed up at UFT headquarters and tried to serve a subpoena against me and this website. No one would accept this service, and Ed Fagan left. At approximately 9 PM the same night, Florian Lewenstein barged into the apartment of 78-year old holocaust victim Gizella Weisshaus and served her with a subpoena demanding
"Any documents in your possession, custody, and control related to:
(1) The attached article published on or about February 18, 2008 (this article that you are reading right
now -Ed.)
(2) Edward D. Fagan, Elizabeth Silver Fagan, Margaret E. Rogers, Jeffrey Plaza, Levy, Erlich & Petriello, Gizella Weisshaus, The Kaprun Ski Train Case, Fagan's bankruptcy, NJ Office of Attorney Ethics, Ed Fagan's business or cases in NY;
(3) emails or faxes or phone records upon which the above article is based or related to any of the people mentioned in Item #2 above."

Lewenstein gave stunned Mrs. Weisshaus $40 to appear in "March 2008" at 5 Penn Plaza, 23rd Floor (where there are no offices, apparently, according to the custodian of the building). I called the Defendant in the caption, Mr. Plaza, friday, February 22, 2008, and he was stunned to hear that a subpoena had been served in the case Ed Fagan filed in 2007 (see subpoena). Mr. Plaza was the Attorney of record in the case of Fagan v Margaret Rogers, when Ed and Elizabeth Silver Fagan, Ed's ex-wife, sued Elizabeth's current "wife" Margaret or "Margie" Rogers. Mr. Plaza was hired by Mr. Jaffe, Margie's grandfather, and Mr. Plaza won the case. Then Ed Fagan sued him.

Milton Allimedi, Publisher of Black Star News, published the article below on Ed Fagan on January 30, 2008:

"Says Disbar Holocaust Attorney"
By Milton Allimadi, January 30th, 2008
LINK

Following a complaint for misappropriating money from escrow accounts, a Special Ethics Master in New Jersey has recommended the disbarment of Edward Fagan, the attorney who became famous when he filed the Swiss banks case on behalf of Holocaust survivors in 1996.

The Black Star exclusively reported the investigation of Fagan on January 25, 2005.

After the Swiss banks case was settled for $1.25 billion in 1998, (without Mr. Fagan, who was thrown out by the other lawyers) Fagan gained global notoriety. He even discussed representing African American organizations working on legal action against the US government for Slavery reparations and groups in South Africa seeking action against foreign banks that helped sustain apartheid regimes.

In recent years, Fagan’s reputation has gone into a freefall. For years the first client he represented on the Swiss banks case, Holocaust survivor Gizella Weisshaus, 78, had alleged that Fagan stole money from the escrow account of her dead cousin Jack Oestreicher.

Fagan was later accused of misappropriating some of the $500,000 settlement money he had secured from the Swiss banks on behalf of another one of his elderly clients, Estelle Sapir, another elderly Holocaust survivor. He continued spending the money from an account he controlled even after Sapir died, it was alleged.

Fagan was accused of misappropriating a total of $122, 582; from the Oestreicher account and from Sapir. He was also accused of improperly disbursing $303,582 from Sapir, by the New Jersey Office of Attorney Ethics.

Fagan “knowingly misappropriated $40,000” from Oestreicher’s New York Estate, on March 27, 1996 and “misappropriated $82,582 of the Sapir Settlement funds that he maintained in his New Jersey Summit Bank account on August 19, 1998,” read the complaint from the New Jersey Office of Attorney Ethics.

In the 2005 article, The Black Star reported that it was only after his client Sapir had died that out of the $500,00 he secured on her behalf that Fagan sent some money to her family to cover funeral cost---$7,300.

In his defense in the New Jersey ethics case Fagan argued that he had oral agreement to “borrow” the funds, separately, from his clients, Weisshaus and Sapir. Hearings on the matter were conducted between November 15, 2005 and April 19, 2007.

In his January 24, 2008 recommendation Special Ethics Master, Arthur Minuskin, concluded that Fagan had “lied by claiming he had unlimited authority to use the $82,582 given to him” by Gizella Weisshaus from the Oestreicher estate and that Fagan “lied by claiming he had unlimited authority to use the Sapir settlement funds; he also improperly disbursed $305, 582 of those funds.”

Weisshaus said she welcomed the news. “He should have been disbarred before he started the Swiss case because he stole my cousin’s escrow account before hand and I didn’t know,” she said, in an interview with The Black Star.

The recommendation will be forwarded to a Disciplinary Review Board which will then send its decision to State Supreme Court in New Jersey for final ruling. The process could be concluded by the end of the year, says John McGill, III, Deputy Ethics Counsel Office of Attorney Ethics."

The story of the NYC Rubber Rooms is a big one, and I became a member (along with NY Teachers reporters Jim Callahan and Ron Isaac) of the 'SWAT TEAM' put into place in September by United Federation of Teachers (UFT) President Randi Weingarten. We have been working to resolve the issues presented to us by the NYC BOE employees sent to temporary re-assignment centers, or "rubber rooms" throughout the New York City area.

In anger and frustration, several teachers decided to sue the NYC BOE, Randi Weingarten, and everyone else they could think of, in a lawsuit with the Index number 08 CIV 0548 under Andrew Peck, Magistrate, United States District Court for the Southern District. Mr. Fagan must file - after three extensions of time - on friday, February 22, 2008, his amended complaint. Peck has told Mr. Fagan that he is "wasting his time" (Feb. 8). Mr. Fagan told Peck that he had lost his computer, and he was trying to get the emails back.

This sounds strangely familiar, so I asked Gizella to give me an idea why, and she gave me the documents of the case Ed Fagan filed in September 2006 against the Polish Government, the Polish Ministry of Finance, the Polish National Bank, City of Warsaw, Citibank, JP Morgan and Morgan Guaranty Trust Co., and Fleet Boston on behalf of the late Ester Sapir and other non-existant entities. Mr. Fagan wrote a letter on January 31, 2007, to USDC Judge George Daniels in which he states:

"Honorable Judge:

I write this letter on behalf of plaintiff to request a brief adjournment of the date within which plaintiffs response to defendant's pending Motion to Dismiss.

This request is necessitated because the computer on which all my research, files and documents related to this case are stored has malfunctioned and has had to be shipped for service..."

Judge Daniels dismissed the case on April 24, 2007 partially due to the fact that Ed Fagan NEVER answered the Motion to Dismiss! On May 4, 2007 Gizella wrote the Consul General of Poland and offered to give him information on Mr. Fagan.

When I first heard at the end of January 2008 that a lawsuitwas being filed in federal court in protest of the civil, due process, and constitutional rights violations of the teachers and other educational professionals confined to temporary re-assignment centers in New York City nicknamed "rubber rooms" (because of the effects upon the minds of the tenured people who are innocent of anything, falsely accused by DOE personnel and/or the Special Investigator, and told to appear daily in windowless rooms located throughout the New York City), I was stunned to hear that a man named Ed Fagan was their attorney. One of the finest and most honest people I have ever met, Gizella Weisshaus, was a victim of Ed Fagan in 1998. Gizella's entire family was killed during World War II in the holocaust, and she is now 78 years of age and an activist. In her father's memory she wants to get back the money he put into a swiss bank account before he was killed. Ed Fagan became her attorney, then proceeded to steal her money, destroy her case in court, (see fax pages 1-7 and page 8, which Fagan sent to Gizella Weisshaus on February 18, 1998 - yellow marked passages are added by Gizella) and used a picture of her with her dead family to raise money for New York State Senator Alfonse D'Amato's re-election campaign, according to Gizella and other sources.

Teachers have called me in despair over what they see as Ed Fagan's disorganized approach to the case, and his demands, especially in his certification and his retainer agreement. We believe that there are justified reasons for several of the teachers who are plaintiffs in this case to file a lawsuit against the Department of Education in New York City, but we also know that the UFT is meeting with the NYC BOE to resolve many of the issues. We do not believe that Ed Fagan is the person who should bring these claims to Court.

Currently, Ed lives with his ex-wife Elizabeth Silver Fagan, who had left him to marry (in a civil ceremony) a woman named Margaret Rogers. Elizabeth Silver Fagan threw her girlfriend out, moved her ex-husband Ed back into the house, then sued Ms. Rogers on December 31, 2007, as well as her parents, grandparents, Baldwin & Associates Construction, Inc., Mayflower Realty Co, LLC, Best Valley Realty, Inc,. The Jaffe Family, the Jaffe Family Irrevocable Trust, etc., for $20 million. Ms. Silver Fagan claims that Ms. Rogers is mentally ill and is harassing her. The Defendants hired Attorney Peter Till, who filed a Notice of Removal. The Fagans filed answering papersand a Memorandum of Law, opposing the Till papers on February 6, 2008... stay tuned.

In August 2007, US District Court Judge (Southern District)Shira Scheindlin fined Ed Fagan $5,000 and removed him from a case involving victims of a ski train fire in Austria on November 11, 2000, citing incompetency and Fagan's own bankruptcy, saying "The fact that Fagan is relying on this case to cover such substantial personal debts seriously undermines this court's confidence in his ability to devise a prudent litigation strategy for his clients". Mr. fagan recently declared bankruptcy reporting that he has "$13.6 million in debts. He hoped to win a $16 million settlement from the Kaprun fire lawsuit to pay his debt and end his bankruptcy proceedings. We suppose that the lawsuit against the Jaffe family serves the same purpose.

The teachers who hired him to file the lawsuit on their behalf against the NYC BOE probably were "sold" on Fagan by his "fame" as the attorney in the holocaust victims' case. But attorneys who worked on this case have said that Ed Fagan did no work, and simply flew all over the world talking about the horrific theft of money from holocaust victims.

On Friday, February 8, 2008, Ed Fagan appeared in Federal Court in front of magistrate Andrew Peck. I was there, and so was Gizella Weisshaus, who was told by me of the appearence and wanted to attend. Magistrate Andrew Peck asked Fagan why he had violated his order to submit an amended complaint no later than February 4, 2008; Fagan told Peck that he had lost his emails due to his computer being stolen, and he asked to please get more time to submit an amended complaint? (The papers in response to Attorney Till in the Fagan v Jaffe case were filed February 6, 2008, so what computer was he using for that filing???). Peck asked Fagan to give him a date to submit his Amended Complaint, and Mr. Fagan told Peck that he would have the papers in to the Court on Wednesday, February 13, 2008. No papers were submitted on Feb. 13. We understand from sources that the extension is now February 22, 2008.

I have a question: "Mr. Fagan, what about the case you filed in Fedral court against the Polish government, The Polish Ministry of Finance, Polish National Bank, City of Warsaw, Citibank,JP Morgan Chase & Co., Fleet Boston? Didn't you fail to file necessary papers and the case was dismissed?

Fagan then met with the teachers who appeared that day at a coffee shop (I checked out his new "office" at 5 Penn Plaza, and there is only a desk and telephone; the security told us that all the people on the 23rd floor are 'shady', are 'not to be trusted', and that Ed Fagan has no office there), and told them that they must never speak with me, and that Gizella Weisshaus is a liar.

My reply: dear reader, make your own decision, based on the information available.

Betsy Combier

Teachers sue to ax 'rubber rooms'
BY ERIN EINHORN, NY Daily News, Tuesday, January 22nd 2008, 4:00 AM

A group of city teachers filed suit Monday demanding the city shut down the so-called rubber rooms where school employees are sent to await disciplinary hearings.

The teachers filing suit are among hundreds accused of serious crimes, like having sex with students, or minor infractions, like talking back to a principal.

Some are accused of simply being ineffective teachers.

Because of agreements in their union contracts, they can't be fired or disciplined until they receive a hearing, so they collect full salaries for months or even years while doing nothing more than reporting every day to what's officially called a "temporary reassignment center."

"It's an abuse of public money," said Florian Lewenstein, who in the suit describes the rooms as "modern-day internment camps."

Lewenstein is the only plaintiff identified by name in the suit, which was filed in Manhattan Federal Court, but he said 15 teachers are members of his Teachers4Action group and that he is recruiting others.

Lewenstein says he was originally taken off duty from Middle School 217 in Briarwood, Queens, after he was accused of hitting a kid with a book bag. He denies the allegations.

The city teachers union says the suit is the first to formally challenge the rubber rooms. The suit alleges that the rooms are part of a "scheme" to discriminate against experienced teachers and "reduce salaries by forcing teachers to quit or be fired."

"We're talking about people ... with 20 years of satisfactory ratings who have been set up asincompetent or set up on corporal punishment charges. They're some of the most frivolous and ridiculous charges," Lewenstein said.

United Federation of Teachers President Randi Weingarten said she's not supporting the lawsuit because she's working with the Education Department to address problems with the rubber rooms.

"I understand their frustration," Weingarten said. "Many of them believe they are innocent and believe they should be exonerated and they don't understand why they are languishing in these rooms, regardless of whether or not they're being paid."

"We are already working with the UFT in this area. There's no merit to the lawsuit," said schools spokesman David Cantor.

eeinhorn@nydailynews.com

NJ Ethics Counsel says NY Holocaust Lawyer Ed Fagan should be Disbarred
NJ Star Ledger Sunday, February 10, 2008

In a report dated January 24, 2008, New Jersey Special Ethics Master, Arthur Minuskin, recommended that attorney Edward D. Fagan be disbarred from the practice of law in the Garden State. Fagan, who disputed the New Jersey charges, currently holds a license to practice law in New York.

Edward Fagan is most known for representing the original first named plaintiff, Gizella Weisshaus, in the 1996 Holocaust lawsuit against the Union Bank of Switzerland. That heavily litigated proceeding resulted in a $1.25 Billion dollar settlement in 2001, and generated a $1.3 million dollar legal fee to Fagan.

The blistering New Jersey Ethics Report concluded that Ed Fagan improperly used $39,902.25 of Holocaust Survivor Gizell Weisshaus’ money to pay his New York law office rent at 26 Broadway in Manhattan.

The disciplinary probe by the Office of Attorney Ethics of the Supreme Court of New Jersey also found that Mr. Fagan had lied about being authorized to disburse monies totaling nearly $400,000.00 given to him by Mrs. Weisshaus and another holocaust survivor, Estelle Sapir.

The New Jersey complaint resulted from a routine investigation conducted by the Office of Attorney Ethics when Mr. Fagan failed to pay his required annual client security fund fee. After he was suspended for nonpayment of the client security fund fee, the ethics committee further investigated Fagan to determine whether he was practicing law during the period of the suspension. That investigation raised questions about his possible misuse of trust account funds, including the Weisshaus and Sapir monies.

Fagan’s testimony during the ethics hearings revealed that in July of 2001, he received a $4.3 million lee fee in a Holocaust related German Global property settlement, in addition to the $1.3 million fee from the Swiss Bank case.

Previously, on Tuesday, August 28, 2007, this forum reported on one of the on-going horrors facing what people who know her describe as "the strong and beautiful Holocaust survivor Weisshaus." That report was titled, "Patentgate Ethics Scam Hits Holocaust Survivor."

As a young girl, Mrs. Gizella Weisshaus survived the Holocaust, but recently and now 77-years-old, she finds herself on the growing list of victims ensnarled in the Manhattan attorney ethics scandal shaking the New York State Court system.

Background

In July of 2007, it became publicly known that many ethics complaints against attorneys in the Bronx and Manhattan were methodically mishandled-- effectively buried or stalled—due to politically-based connections, favors or back-room deals. The "Patentgate" matter quickly highlighted the need in New York for federal intervention since the alleged theft of dozens of U.S. patents by the inventor's own New York lawyers-- the once respected and politically connected Proskauer Rose law firm-- went largely and substantively unaddressed. The Patentgate ethics complaints were obscured in New York at the very same time the identical issues found The United States Department of Justice widening their own investigation and, additionally, where members of the U.S. Senate and House Judiciary committees called for further probes. The ongoing ethics shake-up resulted in the quickly announced "retirement" of Manhattan's top State ethics Chief Counsel, Thomas J. Cahill, Esq., and whose replacement is expected to be announced soon. (See the related August 24, 2007 story below: "Justice Department Widens "Patentgate" Probe Buried by Ethics Chief Thomas J. Cahill" )

Holocaust Survivor meets New York “Ethics”

Mrs. Gizella Weisshaus was the named plaintiff in the 1996 filed historic lawsuit against Swiss banks that, after being designated as a class action proceeding, was settled in 1998 on behalf of thousands of Holocaust survivors for $1.25 billion.

Gizella, however, opted out of that settlement because, she says, certain involved attorneys were more interested in paying themselves millions of dollars even before some of the survivors had received any money. She would also learn, she says, that someone "manufactured" a necessary amended complaint in 2000 by backdating that court document to 1997. And she would also find that in an unrelated estate proceeding where she was the executrix, her own lawyer, Edward D. Fagan, had failed to deposit more than $82,000.00 into an attorney escrow account choosing, instead, to use the money for his own various personal expenses. (Mr. Fagan also represented Mrs. Weisshaus in the subsequent filing against the Swiss banks and from where he ultimately received millions of dollars in legal fees)

The Devil's Advocate

An attorney ethics complaint followed, and in a letter dated May 6, 1998, attorney disciplinary Chief Counsel Thomas J. Cahill's predecessor, Hal R. Lieberman, Esq., wrote to Gizella to advise that since her complaint against attorney Edward Fagan had involved an "ongoing criminal proceeding" his office would await the outcome of that proceeding before concluding their disciplinary investigation. Then-Chief Counsel Lieberman also advised Gizella that his New York State ethic's office had requested a written answer to the complaint from attorney Fagan. Edward Fagan then hired his own lawyer.

Letter to Self

Approximately 9 weeks later, in a July 15, 1998 dated formal answer to the charges against him, attorney Fagan's lawyer submitted a 6-page denial of the various charges made by Mrs. Weisshaus. Astonishingly, attorney Fagan's lawyer, who he had recently engaged, was none other than Hal R. Lieberman who, in a 9-week period of time, had left his position as Chief Counsel of the New York Supreme Court, Appellate Division, First Department Disciplinary Committee to join the law firm Beldock Levin & Hoffman, LLP.

So, essentially, on July 15, 1998 private attorney Hal Lieberman was responding to himself-- to his own May 6, 1998 letter wherein he, as the New York state-employed Ethics Chief Counsel had advised Gizella of the request for a written answer from the attorney she had filed a complaint against, and the same person who was to be Lieberman's client-- Edward Fagan.

Concerning the various ethics complaints against him in New York, no known action has ever been taken against attorney Edward D. Fagan.

Ed Fagan: Attorney at Law
Short Hills, NJ
LINK

Ed Fagan told the Austrian weekly NEWS he had paid for sex with a woman from Lithuania, but says she assured him she would be 22 this year. He says he met the woman, Inga, through a man who has since been sentenced over the escort service affair. Mr. Fagan says when he 'noticed that the guy was running a call-girl ring, I didn't really care. I was more interested in getting to know this Inga'.

The lawyer is quoted as saying "it would have been a crime not to have slept with the woman." He says he later had sex with her when no payment was made and she accompanied him on several trips and visited him again in Austria.

Knowingly having paid-for sex with a woman under 18 carries a sentence of up to three years in Austria.

Lawyer in Holocaust Case Faces Litany of Complaints
By BARRY MEIER, New York Times - September 8, 2000

Less than four years ago, a little-known personal-injury lawyer named Edward D. Fagan stood next to an Auschwitz survivor at a news conference in New York and announced an audacious lawsuit, accusing Swiss banks of stealing money 50 years ago from those who died in the Holocaust.

Today, Mr. Fagan has a new and glamorous career and is likely soon to earn millions of dollars in legal fees. He has since filed lawsuits against banks, insurers and other companies in Austria, Germany and elsewhere, charging that they too profited from Nazi ties or exploited victims. Settlements of actions against Swiss banks and German industry worth over $6.2 billion were recently approved.

Dozens of lawyers got involved in the Holocaust claims. But the 47-year-old Mr. Fagan cast himself a part as a media-savvy street fighter who became the public point man in the cases. This July, he hopscotched in a few days from Berlin to Vienna to Warsaw on behalf of tens of thousands of people whom he and lawyers associated with him represent.

They have also opened a second front, charging Japanese companies in lawsuits with using thousands of Asians and others as forced labor during World War II.

"It's like a posse," the tall, curly-haired and engaging Mr. Fagan said. "There are all these bad guys all over the world, and we have to track them down."

His mission, he said, is to reach back into history and force a reckoning with those who profited from evil. But an investigation by The New York Times and the ABC News program "20/20" has found that Mr. Fagan is facing his own reckoning.

As he recast himself as a "human rights" lawyer, Mr. Fagan left neglected personal-injury clients in his wake, abandoning their claims or not returning their phone calls for years, according to court papers and interviews. One former client recently won a malpractice judgment against Mr. Fagan and ethics officials in New Jersey filed a misconduct complaint against him last month on behalf of another client.

Mr. Fagan, so at ease with using the emotional force of the Holocaust as a weapon, also ignored for months scores of calls and letters from aging Nazi-era survivors anxious about whether their claims had been received, said a paralegal who worked last year for him and his partner at the time. That paralegal, Jane Warshaw, was so distressed by what she saw that she wrote in January to the judge handling the Swiss banks case to complain.

"I never expected to witness what I have seen at this office," she wrote. "What is happening to these poor, old, injured and neglected people is heartbreaking."

For his part, Mr. Fagan conceded he may have failed some clients by taking on too much work. But he insisted that he did his best to represent his personal-injury clients and that he labored ceaselessly in the Holocaust cases without financial guarantees, winning results few would have imagined.

"It was remarkable to be a lawyer and to be able to use your profession to do good," he said. "To change history. To stand up for people's human rights is incredible, and that's what we did."

Mr. Fagan's conduct does not appear to have jeopardized the financial claims of his Holocaust clients. In any settlement, they would be eligible for the same compensation as clients of more attentive lawyers. But several survivors he represented say that his failure to return calls for months, even years, took a wrenching emotional toll. Legal-ethics experts say lawyers are obligated to answer client queries within a reasonable period, even in a huge class-action suit.

Mr. Fagan is a frenetic man who appears inseparable from his cell phone. He had hoped to be a rabbi, failed at business and ran a struggling legal practice before he stumbled into the Holocaust litigation and a potential gold mine in legal fees. In the Swiss banks suit alone, he seeks $4 million, the most for any lawyer in the case.

There is little question that Mr. Fagan played a leading role in promoting the Holocaust claims, cases whose moral charge made them a public cause. He specialized in shaming companies and governments, orchestrating demonstrations and prayer vigils. Some Holocaust survivors and advocates view him as their champion.

"He is a master in public relations," said Hannah Lessing, an official of a state-financed group in Austria for Holocaust victims. "Behind all the facade of yelling and screaming, there is a man who cares for survivors."

But he also made it his business, while other lawyers were painstakingly developing legal claims, to be first at the courthouse, gaining leverage with a hasty filing. A news conference with an aged survivor would follow, drawing in a flood of clients.

Mr. Fagan represents far more Holocaust claimants than most other lawyers, giving him a powerful role in negotiations. The actual number of clients is apparently a matter of some confusion. In one interview, Mr. Fagan put the figure at 82,000, but his own lawyer cited a different one -- 52,000 -- in a March response to a client complaint.

Other lawyers in the Holocaust cases say Mr. Fagan's ambitions vastly outstripped his resources to deal with the huge numbers of clients he took on and added that he was often absent for the legal fight. Burt Neuborne, who had worked with Mr. Fagan before breaking with him, said Mr. Fagan's filing in the Swiss banks case was so inadequate that a judge asked him to rewrite it.

"This was an ordinary man who got swept up in issues that were bigger than he was," said Mr. Neuborne, a law professor at New York University. "He didn't understand and eventually didn't really know how to behave and just got swept away in the current of his own ego and his own ambition."

'Here Are Defendants'

Mr. Fagan has said that two pieces of information led him to the Swiss banks case. The first was a 1996 article in The New York Times about Nazi gold and Swiss banks. The other came from a longtime client, Gizella Weisshaus, an Auschwitz survivor who told him of her family's Swiss account.

He recalled: "I thought, 'Oh, my goodness, I'm a lawyer, here are defendants. I don't know who the plaintiffs are, I don't know who the plaintiffs are going to be, but someone is going to pay.' "

The Swiss banks case would also apparently be the way to satisfy his gnawing hunger for acclaim.

Born in Harlingen, Tex., Mr. Fagan grew up in San Antonio with two brothers and a sister, all from his mother's first marriage. Mr. Fagan's father abandoned the family, said Wayne Fagan, the lawyer's oldest brother. His other brother, Avraham, embraced Orthodox Judaism and Mr. Fagan followed him to Israel.

"I wanted to be a rabbi," he said.

His religious ardor waned, and Mr. Fagan returned to this country and enrolled in Cardozo Law School in New York, a part of Yeshiva University, graduating in 1980.

He spent several years with a large law firm that represented corporate defendants. But in the late 1980's, Mr. Fagan, searching for something with more panache, tried to start an exploration club for the wealthy. Travelers would sail by yacht to exotic locales, accompanied by ocean scientists and environmentalists. In 1991 he set up the Odyssoe Foundation, a nonprofit arm of the business, to support environmental research. But the whole venture fizzled.

In 1994, soon after returning to law, he rented the entire 21st floor of the former Standard Oil building in lower Manhattan, complete with the original, opulent board room. He tried to support his tiny firm, Fagan & Associates, by subletting space to other lawyers and advertising for personal- injury clients in the yellow pages.

He was eager, however, for the spotlight, trying to interest a tabloid in one case. In 1994, he asserted in a fax to the Star magazine that the actor Sylvester Stallone had tried to defraud a client of his who owned three paintings by Mr. Stallone.

"There has never been been an article of this nature with a celebrity (of this stature) involving fraud and his artwork," Mr. Fagan wrote, according to papers in a libel suit that Mr. Stallone filed against him in 1994.

The magazine never published the article, and Mr. Stallone withdrew his libel action.

In another case, Mr. Fagan got on television representing a 6-year-old Queens girl who had been stabbed with a hypodermic needle by a homeless man on the subway.

But at the same time, his finances and his business ties were unraveling, public records show. He began to owe large amounts of federal income taxes, a debt he said he has mostly paid off. In 1996, the yellow pages unit of the former Nynex Corporation filed a $228,000 lawsuit against Odyssoe in a New Jersey court for unpaid services like advertisements for his legal practice.

Mr. Fagan said he ordered the advertisements through the nonprofit organization, rather than his law firm, because it was also the billing address of some phone lines at his firm. He said he believed the matter was resolved, but a spokeswoman for Verizon, the successor to Nynex, said the bill was still outstanding.

Faced with an eviction proceeding for unpaid rent, he was forced in 1997 to leave his lavish offices and rent space from a law firm in the World Trade Center.

The acrimony of his professional life spilled over into his closest relations. In the mid 1990's, Mr. Fagan severed ties with his three siblings, said his brother Wayne, a lawyer in San Antonio.

Wayne Fagan said: "Eddie was a warm, jovial person who was like a pied piper. But something happened and Eddie just changed."

The Cases Left Behind

With Mr. Fagan's claim against the Swiss banks on behalf of Mrs. Weisshaus and others in late 1996, he embraced a new mission. But the claims of some of his personal-injury clients were apparently abandoned or forgotten.

One was Hector Ortiz. In 1992, Mr. Ortiz, a 49-year-old truck driver, smashed into the back of a slow-moving crane, shattering bones and sustaining head injuries.

In 1994, Mr. Fagan filed a $35 million lawsuit on his behalf in federal court in Brooklyn and brought a similar action in State Supreme Court there. He aggressively pursued the federal claim until late 1996, court papers and interviews indicate.

In 1998, however, Judge Sterling Johnson Jr. of Federal District Court dismissed Mr. Ortiz's federal lawsuit. In doing so, he also noted that Mr. Fagan had "failed to prosecute" it for three years and had ignored court orders. Mr. Ortiz's claim in Brooklyn state court has lain dormant for three years.

Mr. Fagan said that he had told Mr. Ortiz about a year ago that his federal claim was dead but that he had not yet informed him that the state case also appeared at an end.

Mr. Ortiz, who has not worked since the accident, disputed that account, saying in a phone interview that he had not seen or spoken with Mr. Fagan for more than two and a half years. "I was waiting in vain," he said. "I didn't know something like this could happen. Right now I'm confused. I don't know what to do."

Another client, Tom s Giron, was struck and severely injured in 1992 by a car reported stolen. Mr. Fagan said that he had made a claim for Mr. Giron to a New York state fund that compensates victims of uninsured motorists but that it had been denied.

Jeffrey Rubinton, the fund's president, though, said in an interview that its records showed that such an action had not been pursued and that the statute of limitations on making one had long expired.

In January, a former client, Offer Salmoni, won a $167,000 malpractice judgment against Mr. Fagan, which the lawyer did not contest. Mr. Fagan had filed a lawsuit on Mr. Salmoni's behalf in 1993 to contest an eviction. Mr. Salmoni charged in a 1998 lawsuit that Mr. Fagan had allowed that claim to be thrown out by repeatedly failing to make court appearances and had let the statute of limitations expire without refiling. Mr. Fagan, who is licensed to practice in New York and New Jersey, said he planned to settle with Mr. Salmoni.

Last month, New Jersey ethics officials, after a preliminary inquiry, filed a misconduct complaint before a grievance committee against Mr. Fagan on behalf of another former client, Diane Gibbons. Ms. Gibbons had complained to the ethics board that Mr. Fagan's failure to file required papers in her personal-injury action led to its dismissal. Mr. Fagan said he could not comment on the matter because it was pending.

Stephen Gillers, a legal-ethics expert at New York University who is not involved in the Holocaust litigation, said lawyers faced sanctions if they ignored existing claims when the prospects of bigger awards beckoned. "Your loyalty to your original client is undiluted," Mr. Gillers said.

Some personal-injury clients, whose names were provided to The Times by Mr. Fagan, said that he fought difficult cases for them, and that they would use him again. But Mr. Fagan acknowledged that he failed to withdraw -- as lawyers are required to -- from suits that he did not pursue.

"I was in over my head a lot of the time," he said. "But now I'm digging out, for me and for them."

Unanswered Calls, New Inquiries

By late 1999, with the Holocaust cases on the way to settlement, Mr. Fagan had established his place on the world stage. When Jane Warshaw, a paralegal, was sent by a temporary-help agency to work that fall for him and his then-partner at the World Trade Center, she was thrilled.

"I thought they were doing God's work," Ms. Warshaw said.

Ms. Warshaw, 57, said that Mr. Fagan's partner at the time, Carey R. D'Avino, asked her to check the office's telephone answering system. On it, she found more than 100 unanswered messages from Holocaust survivors as well as personal-injury clients, including Mr. Ortiz. It sounded like many had been desperately calling for a year or more.

Stacks of unopened letters from Holocaust survivors or their heirs were scattered around or stuffed in a drawer, she said. "They must have gotten their hopes up and then, there again, they were told that they just didn't matter," she said.

Ms. Warshaw said she suggested to Mr. D'Avino that she prepare a newsletter to keep clients updated, an accepted practice in class-action suits. The lawyer said he told her that their clients were already getting periodic newsletters. He described her as "well-meaning" but "out of the loop."

In January, troubled by what she viewed as client neglect, Ms. Warshaw sent a recording of those calls to Judge Edward R. Korman of Federal District Court in Brooklyn, who is overseeing the Swiss banks case. She also provided materials to The Times and ABC News.

The picture emerging from the documents and tapes is chaotic. New York disciplinary officials were investigating complaints by three of Mr. Fagan's clients. Calls from Holocaust claimants were bounced from one answering machine to another.

One caller, Bella Ross, said her parents, concentration camp survivors, were ecstatic when Mr. Fagan took their case in 1998. "They thought, you know, they had this savior," Ms. Ross said in an interview. "I mean, this is the man. You saw him on TV. You heard about him on the radio. You see him in print. He is everywhere. It was like finally they were blessed."

By last year, however, the family was so concerned about Mr. Fagan's lack of response to dozens of messages and faxes that she filed a complaint with New York disciplinary officials. "To date," Ms. Ross wrote in December, "Mr. Fagan has done nothing to update my parents on the status of their case and is literally unreachable."

Hal R. Lieberman, a lawyer representing Mr. Fagan in the matter, told investigators in a March letter responding to Ms. Ross's complaint that Mr. Fagan could not possibly deal with each of his tens of thousands of clients. Both Mr. D'Avino and Mr. Fagan said in interviews that they had met their ethical obligations to their clients; to date, there have been no findings against them.

Other Holocaust lawyers, though, were devoting more extensive resources to client communication. While some used paralegals to handle calls, Mr. Neubourne, the New York University professor, said he set aside four hours a week to deal directly with survivors, including many of Mr. Fagan's clients who called him out of frustration.

"These are people who lived with these memories for so long," Mr. Neubourne said. "The memories were then opened up, somebody told them something was going to happen. And then they just got cut off."

Some clients said Mr. Fagan returned phone calls promptly and others involved in Holocaust-related issues said they also had had far happier experiences with him. They described him as a passionate advocate who took up a fight that traditional Jewish groups had allowed to languish.

"Ed was the only true source of light," said Dr. Thomas Weiss, an ophthalmologist in Miami Beach active in Nazi-era claims against insurers. "He saw himself as picked by Providence to lead this charge."

For his part, Mr. Fagan described Ms. Warshaw as a "disgruntled former employee," though he conceded that some of her concerns ere legitimate.

He said he spent much of his time in recent years traveling and that only a few clients had complained. "The truth of the matter is that some people are going to be unhappy," he said.

Ms. Warshaw's complaint was referred to court officials, and Mr. D'Avino said that an investigator contacted him. Mr. Fagan said an assistant was hired in June to answer calls, resolving the matter.

A court official said the existence of an inquiry would not be confirmed or denied until a judge issued a ruling.

Haggling at the Top

In July, Mr. Fagan arrived in Berlin as part of a victory lap in two of the most significant cases. To settle slave-labor claims against German industry, the government and companies there had approved a $5 billion fund to compensate Nazi-era survivors. Not long after, Judge Korman in Brooklyn approved the $1.25 billion settlement of the Swiss banks case.

Mr. Fagan savored the moment, joining government officials, industry leaders and the heads of Jewish groups at the signing of the German agreement. "I know for a fact that the majority of these cases wouldn't have happened without me," he said. "That's not bravado, it's just a fact."

During the signing, though, Mr. Fagan dickered by cell phone with Stuart E. Eizenstat, the United States deputy treasury secretary, about lawyers' fees and other issues.

Under the German plan, two arbitrators are to decide how to award legal fees. Mr. Fagan argued with Mr. Eizenstat, who led negotiations in the case for the American government, that he understood that the arbitrators had up to $75 million to award, not the $62.5 million to which some other plaintiffs' lawyers had agreed.

After the call, Mr. Fagan telephoned a partner and said, "I got the legal fees up." But his excitement was premature; documents show that the lower figure was used.

Mr. Eizenstat said Mr. Fagan, after failing to get higher fees, then asked for a letter testifying about his efforts in the German case because he feared that lawyers critical of his conduct would seek to reduce his payout. Mr. Eizenstat said he agreed to write such a letter because he felt Mr. Fagan had played a constructive role.

Mr. Fagan's fears are well-founded. He is seeking $4 million in the Swiss banks case, twice as much as any other lawyer. In class actions, a judge or court-appointed expert determines fees, and lawyers argue that they deserve sizeable fees because they took great risks and helped resolve the case.

But Mr. Neuborne and others said they would argue for a far lower sum for Mr. Fagan in the Swiss banks case, contending that his contribution was minimal.

"His only gift was for publicity," said Martin Mendelsohn, a lawyer in Washington who worked on the Holocaust claims. "But this was a lawsuit. It was not theater."

New Clients to Pursue

Late last year, Mr. Fagan and lawyers associated with him set their sights on Japan. They fanned out to Australia, Hong Kong, South Korea, New Zealand and the Philippines in a bid to sign up thousands of people who claimed they had been used as forced laborers, including former American and Allied prisoners of war.

Gil Hair, director of a group in Miami that represents American civilians interned by the Japanese, said that Mr. Fagan called him in December and characterized himself as the "hero of the Holocaust" cases before he began his sales pitch. Mr. Hair, who already had a lawyer, declined.

In December, Mr. Fagan flew to Tokyo to make client contacts at a conference held by groups representing victims of Japanese wartime aggression, said several people who attended the meeting.

Public demonstrations soon followed. This summer, hundreds of old men and women passed into a park in Seoul, South Korea, under a banner that, roughly translated, read, "For the first time in 55 years we have brought action by human rights lawyers from the United States against the Japanese."

At the rally's end, a Korean folk band playing drums and cymbals led the crowd down a Seoul street as a man chanted through a loudspeaker "The Japanese government should repent and compensate for their atrocities of World War II. Repent. Repent. Repent."

Holocaust typhus corpsesMr. Fagan said he planned to move forward, addressing more World War II wrongs and other human rights causes. But some, like Ms. Warshaw, can only see the trail of broken promises and failed hopes he has already left behind.

"I don't see how you can ignore someone, especially when you've said, 'I'm here to help you, I'm going to help you,' " she said.

A Case of Self-Promotion?
Prominent Holocaust Claims Lawyer Accused of Neglecting Clients
By Brian Ross, ABC News - September 8, 2000

Lawyer Ed Fagan recruited as clients some 82,000 Holocaust victims or family members, to help them press compensation claims for Jewish money hidden by Swiss banks and slave labor work for German companies. (ABCNEWS.com)

Sept. 8 -- A lawyer who prominently recruited thousands of Holocaust survivors or their families in compensation claims against German companies and Swiss banks now is being accused of neglecting some of his clients, ABCNEWS' 20/20 reports tonight. His name is Ed Fagan, and in the past few years, he has traveled the world recruiting as clients some 82,000 Holocaust survivors who were horribly abused, forced into slave labor or who lost their family property and bank accounts. Dozens of lawyers are involved but Fagan has made himself the public face of the so-called Holocaust lawsuits brought against Swiss banks and German companies. He's been widely quoted in hundreds of articles and featured on television around the world. Yet even as Fagan was signing the final documents in Berlin in a settlement that would give $5 billion to slave labor victims, a joint investigation by 20/20 and The New York Times found serious questions being raised about this so-called savior, now accused of ignoring and neglecting some of the very clients he had promised to help.

Answering Machine Messages

Out of the public eye, says Jane Warshaw, who worked for Fagan and a former partner as a paralegal for several months last year, the lawyers paid little attention to their clients' pleas. A tape of telephone messages left on the answering machine at Fagan's law office was provided to 20/20 and the New York Times. "And if they wrote in, it didn't help," she says. "There was unopened mail sitting on top of the desk on the chairs, everywhere." She says she felt compelled to blow the whistle on Fagan and his partner in this letter to the federal judge overseeing the Swiss bank case. Fagan, who admits he hired almost no office help, says he was too busy traveling and working on the cases to answer all the questions from his thousands of clients. But legal experts say that is no excuse.

Legal Ethics

"It does not pass legal ethics for the lawyer to ignore questions simply because there are so many clients," says New York University law professor Stephen Gillers. 20/20 played some of the tape for Gillers, a leading authority on legal ethics, who says Fagan should have made sure someone responded to his clients. Gillers says Fagan had a special responsibility given what the Holocaust clients had been through. "Elderly people who have been through hell and back, that population has to be recognized as deserving special care and solicitude," he said. "A lawyer who receives that call has to stop and say to himself, my God, I'm doing something wrong here if I have even one of those calls. Let alone three or four or five," said Gillers. But it turns out that even after Fagan learned of the messages recorded by his former paralegal he had never bothered to listen to all of them until 20/20 played him the tape. "That's the first I heard that tape," said Fagan. "Four years of our lives we spent on these cases, is it perfect? No. Should we give the people phone calls? Yes," he said.

A Missed Deadline

Fagan's behavior may not affect the claims of most of his clients, but it was a serious problem for one family. With their daughter Bella, Sam and Lola Rothkopf went to Fagan because they believed their family had lost thousands in a Swiss bank account when the family fled the Nazis. Fagan seemed perfect. "There was no other name that was associated with this issue that regularly was there other than Ed Fagan," said Bella Ross. But the Rothkopfs say once they signed up with Fagan and made the decision to relive so many painful memories, turning over family records to try to prove their connection to the missing bank account, they never heard from him or saw their records again. They've now learned Fagan missed the deadline for submitting documents to support the claim, never filed the documents to back up their claim, which the Swiss Bank Commission has denied, awarding the disputed account to someone else. "And he knew what we went through and everything and he has, this what he did is terrible. A terrible thing," said Lola Rothkopf. Earlier this year, the Rothkopfs took their complaint about Fagan's failure to return their calls to the New York State Bar Association, which declined to take any action against him. Ed Fagan responds, "Are there people out there that say . . . that the manner in which the cases were handled from an administrative standpoint were not good? Were inappropriate? Yes." But, he adds, "I handled my obligations."

Others Complain

But the Rothkopfs are not alone in feeling abandoned by Fagan. ABCNEWS found a number of Holocaust survivors and family members who signed up with Fagan and now claim he virtually ignored them when they simply tried to find out the status of their claims or if their claims were even part of the lawsuit. "And I was persistent. I called, I sent faxes, e-mail, everything," says Dr. Reuven Ofir. "I still don't know, is he legitimate? Is he going to do anything? Or is he not going to do anything," asks Minnie Kramer. Professor Gillers says, based on what 20/20 told him it had found, it's a serious problem. "This is a law office out of control, in my view. This is client abuse, in my view, and it should not be allowed to continue," he says.

Abandoned, Neglected Clients

But it's not the first time Fagan has been accused of neglecting his clients. Just five years ago, he was deeply in debt, placing ads in the New York yellow pages seeking clients for personal injury lawsuits. A search of courthouse records and interviews by Barry Meier of The New York Times found five different cases in which Fagan appeared to have abandoned or neglected existing clients as he went after the higher profile, higher-fee Holocaust clients. One of them left behind, a truck driver seriously injured in an accident in 1992. "He was unaware until I told him a few weeks ago that his $35 million lawsuit in federal court had been thrown out. He said that he had been trying to call Mr. Fagan for two and a half years and had not received a phone call back from him," said Meier. Fagan disputes that. But at the same time Fagan was living the good life, traveling Europe, preparing to ask for millions of dollars in fees for handling the Holocaust cases. "I know for a fact that the majority of these cases wouldn't have happened without me. That's not, that's not from bravado, it's just a fact," said Fagan.

'We Worked Around Him'

But other lawyers in the case say that is simply untrue. "We essentially worked around him," says New York University law professor Burt Neuborne. "I mean, he was, he was there, but, but he played, if I tell you zero, I mean zero role in developing the legal theory, in presenting the legal theory, and in participating as a lawyer," says Neuborne. Neuborne, a leading human rights lawyer who was originally brought into the case by Fagan, says it's time to set the record straight. "This is the first time, I am speaking publicly about this. But now that the cases are over, I think it is appropriate to, to tell the truth about him. One hundred percent of his activity in this case, including the press activity, it was designed to get his name there so other people would sign up with him, so he could get more and more and more and more people in the fold and then show up in court and say 'I am to the top lawyer cause I have got the most clients,'" says Neuborne. "He, he certainly doesn't know my ability as far as what I can do as a lawyer," counters Fagan.

Large Number of Clients

"What did he attack, the number of clients? There wouldn't be cases. The cases wouldn't have been as powerful if we didn't have 82,000 clients," says Fagan. Fagan now says he's improved communications with his clients and provided us with a list of clients, rabbis and family friends who vouched for him. "Because he's a good Jew and he's a compassionate person," says Alice Fisher of New York City. Fisher is one of Fagan's most prominent clients, often appearing in public with him. She says she trusts Fagan and he always returns her phone calls. " I think he is a very good, a very effective lawyer. I don't know why you have to ask this," says Fisher. "If he does not have a staff and so many clients he cannot call back everybody."

Final Outrage

For many, the final outrage from Fagan came this summer, in Berlin, when he held up the final formal signing of the German slave labor settlement, in part because of a dispute over how many millions would be given to the lawyers. With several hundred people and top German and American officials waiting in the next room, Fagan, still wearing a 20/20 microphone, could be heard haggling over the fees, and then boasting of his success to first one lawyer. "I got the legal fees up," he said. And then to another lawyer, he said, "We did great, we did great we just got another, we just got some more money." "It didn't surprise me at the last minute that the only lawyer, the only lawyer that thought he could hold this deal up would be Ed Fagan. Because that's the barometer of how much you care about yourself, and how much you care about those victims," says Neuborne. "How could somebody with such high ideals step on them and step on the people involved. Just to champion himself, for a paycheck? There are lots of other ways to make money, not to take advantage of people who suffered," says Bella Ross.

Cable car fire acquittals contested
Associated Press - September 26, 2005

Austrian prosecutors opened their appeal against the acquittals of eight people they insist were responsible for the deaths of 155 skiers and snowboarders in a November 2000 alpine cable car fire.

The judges hearing the case in Linz, about 120 miles west of Vienna, have the option to confirm the acquittals, change the verdicts or restart the entire trial.

The eight defendants are among 16 people who were acquitted in February 2004 on charges of criminal negligence in the fire, Austria's deadliest peacetime disaster.

They include two employees of Gletscherbahnen Kaprun, which operated the cable car; two employees of the company that manufactured the car; two technicians and two government officials.

The victims were headed for a day of fun on the Kitzsteinhorn glacier near the alpine resort of Kaprun on November 11, 2000, when a defective space heater sparked a fire that swept through the crowded car as it passed through a tunnel.

Only 12 people managed to escape.

Most victims were from Austria and Germany. Eight were Americans, and the others were from Japan, Slovenia, the Netherlands and Britain.

In July, US attorney Ed Fagan filed civil lawsuits in New York seeking damages from Gletscherbahnen Kaprun and several US and international companies.

Fagan filed the suits even though an appeals court earlier this year rejected efforts to lump cases together in a class-action lawsuit.

In Austria, at least 100 separate lawsuits have been filed by relatives seeking compensation.

Other reports on Ed Fagan:
Holocaust compensation
War bonds
Holocaust lawyer takes second shot at Swiss - over apartheid
Swiss banks facing apartheid lawsuit
Corporate giants face apartheid court fight
Diamond industry hit by £3bn suit
Ski train tunnel blaze trial starts
Lawyer fined
German rail engineers on trial for manslaughter over crash

Allegations Against Survivors' Lawyer
N.J. ethics office claiming Fagan misappropriated more than $400,000 from accounts
Stewart Ain - Staff Writer, Jewish Week - January 7, 2005

Edward Fagan, the first lawyer to sue Swiss banks for hoarding the money of Holocaust victims and who championed survivors' rights in insurance and art cases, has been charged by the New Jersey Office of Attorney Ethics with looting more than $400,000 from the trust accounts of two survivors he represented.

Disciplinary action ranges from an admonition to disbarment.

"The knowing misappropriation [of funds] is a disbarable offense," said John McGill III, the deputy ethics counsel who is overseeing the case.

McGill said state rules allow his office to refer cases to law enforcement "if a crime has been committed," and that it would not be necessary to wait until the complaint process is completed. It usually takes about a year. McGill said no referral has been made "at this point."

Fagan said he had not seen the complaint. "As soon as I see the information I will retain counsel and respond," he said.

When he was interviewed by McGill's office last year, Fagan was working from an office in Short Hills, N.J. A secretary at that office said Tuesday that Fagan has not worked there for six months.

McGill's office sent a certified letter to the Short Hills office, but it was returned unopened this week. McGill said the post office provided an address for Fagan in Morris Plains, N.J., and that he has sent another certified letter, as well as a regular letter, to the attorney there. McGill said he will give Fagan until Feb. 4 to respond.

If Fagan has not responded by that date, McGill said he would send another letter giving Fagan five days to either respond or be found in default.

If Fagan contests the charges, a three-member panel of the Ethics Committee will hold a hearing. Its recommendation would be offered to the nine-member Disciplinary Review Board, whose decision would then be submitted to the New Jersey Supreme Court for final action.

The allegations against Fagan include that he deliberately misled the New York State attorney disciplinary committee when it questioned him about charges brought by a former client and survivor, Gizella Weisshaus. She claimed that Fagan had stolen funds from an escrow account established in the name of her deceased cousin, Jack Oestreicher.

Weisshaus said she entrusted the funds to Fagan because the attorney told her that he could get a higher interest rate on the $82,583 in the account.

The New Jersey complaint alleges that Fagan withdrew money from that account for matters "unrelated to the Oestreicher client matter. At the time [Fagan] invaded the Oestreicher estate funds ... he knew he lacked the authority to do so."

When New York authorities questioned Fagan in June 1998 about the Oestreicher account, the complaints said Fagan produced a bank statement from another account "as proof that the integrity of the estate funds had been maintained."

In fact, the complaint alleges, Fagan showed state investigators a bank statement from another trust account he controlled. That account was in the name of Estelle Sapir, a survivor whose complaints against Swiss banks led them to settle with her for $500,000.

"By providing a copy of his Summit trust account bank statement ... [Fagan] attempted to deceive the New York disciplinary authorities into believing that he had maintained the integrity of the Oestreicher estate funds, knowing that the only funds in that account at the time were those for the Sapir matter," according to the complaint.

It is alleged that Fagan then used Sapir's money "without authority" to pay a court judgment against the Oestreicher estate.

"From May 18, 1998, the date the Sapir settlement funds were deposited into [Fagan's] Summit trust account, to April 15, 1999, the date of Sapir's death, [Fagan] made 37 disbursements totaling $302,750 by checks payable to cash and wire transfers to his Summit business account from Sapir's funds," the complaint said. "[Fagan] made the disbursements ... knowing that he lacked the authority to do so."

The complaint alleges that other than $1,500 Fagan gave Sapir in June 1998 and $7,300 he allocated to cover Sapir's funeral expenses, Sapir systematically looted her account. In the five months after her death, it is alleged that Fagan withdrew $124,750 from Sapir's account that was paid either in cash or to his own business account."

It is further alleged that in August 1999, in order to cover the disbursement of $190,000 to Sapir's relatives when he only had $3,330.94 in the Sapir account, Fagan borrowed $225,000 from a former client and friend.

A spokeswoman for the Sapir family said she hopes Fagan "comes forward and does the right thing for everyone if there is money owed to any of the family. This issue brought up such emotional distress, and this is only adding to it."

Weisshaus said Fagan never "had the right to switch my money." She said she initially believed in him, even working in his office for eight months without pay because "I thought he was working for us."

McGill said any action taken against Fagan would be forwarded to New York State authorities, whose First Department Departmental Disciplinary Committee would then be expected to submit the decision to the Appellate Division for its consideration.

The Independent: Holocaust lawyer in Austrian sex scandal
by Barbara Jungwirth in Vienna, Independent, (London, England) - September 17, 2005

http://news.independent.co.uk/europe/article313184.ece

A high-profile US lawyer who forced European governments and companies to pay compensation to slave labourers from the Second World War, says he is being deliberately smeared by an investigation into whether he had sex with under-age prostitutes in Austria.

Ed Fagan, who has brought class-action suits over the treatment of Holocaust- era slave labourers and over a train fire in the Austrian ski-resort of Kaprun, is among several men who have been connected with an exclusive call-girl ring involving underage girls from eastern Europe.

Mr Fagan told the Austrian weekly NEWS he had paid for sex with a woman from Lithuania, but says she assured him she would be 22 this year. He says he met the woman, Inga, through a man who has since been sentenced over the escort service affair. Mt Fagan says when he 'noticed that the guy was running a call-girl ring, I didn't really care. I was more interested in getting to know this Inga'.

The lawyer is quoted by the magazine as saying it would have been a crime not to have slept with the woman. He says he later had sex with her when no payment was made and she accompanied him on several trips and visited him again in Austria.

'We went sightseeing in Vienna, wandered through the gardens of Schnbrunn palace, in Salzburg we stayed in the incredibly beautiful Hotel Kobenzl with views over the city.' The lawyer says Inga and her younger sister, who also worked as a call girl for the agency, are now living in London 'in safety'.

Investigations of clients of the agency have just been started, after Austrian prosecutors admitted it had been a mistake not to follow this line of inquiry. Knowingly having paid-for sex with a woman under 18 carries a sentence of up to three years in Austria. The state prosecutor, Werner Pleischl, says telephone transcripts involving a 'handful' of the escort service's clients are being checked, to determine whether they expressly requested and met underage girls. The prosecutor says authorities will now 'quickly make up for' any previous oversights.

Mr Fagan's lengthy class-action compensation cases for Holocaust victims and their descendants have long been a thorn in the side of European governments, banks and companies. He has also represented the descendants of slaves against three US companies, led a suit against the South African government for apartheid victims and taken on a case against Thai and US authorities for victims of the Boxing Day tsunami.

The lawyer told NEWS there was 'no doubt' the Austrian authorities were trying to get back at him, 'to divert attention from the real scandals going on'. He said he would continue to fight his cases.

Speculation over the escort service's client list increased when the left-wing weekly Falter reported that the agency had received telephone inquiries from someone within the Austrian parliament. Gerhard Roder, a spokesman for the governing People's Party, said he made the calls purely for 'research purposes'. Mr Roder is known for his campaigns against child abuse.

Mr Fagan said he would welcome the opportunity to go to Austria over the call-girl case to prove he had done nothing wrong.

--------------------------------------------------------------------------------
Holocaust Lawyer Fights Accusation He Hired Underage Austrian Hooker
By NATHANIEL POPPER

Forward (NY) - October 7, 2005

http://forward.com/articles/4587


A prominent Holocaust restitution lawyer, Ed Fagan, is planning a trip to Austria to defend himself against published accusations that he hired an underage prostitute.

Several Austrian publications have reported that the state prosecutor in Vienna is looking into contacts that Fagan and other individuals allegedly had with a prostitution ring that involved underage girls from Eastern Europe.

In an interview with the Forward, Fagan said he does have an ongoing relationship with a woman named Inga who was discussed in the Austrian press reports as a 17-year-old Lithuanian prostitute at the time of the original meeting. Fagan is quoted in the Austrian publication News as saying that the woman had told him she was at least 22 years old. Acccording to Austrian law, it is illegal for an adult to knowingly hire a prostitute under the age of 18.

Fagan declined to discuss the specifics of his relationship with Inga, but said the news reports in Austria were all done "carelessly." Fagan said he has never been contacted by the Austrian authorities, but he recently contacted them and is planning a trip to Austria to give a statement under oath. Fagan also said he is planning to bring legal suit against the Austrian publications.

"The issue from top to bottom in Austria is either a manipulation of evidence, a lie or fraud," Fagan said.

Fagan said he believes the leaks in the call-girl case are a form of payback, for his role in filing a lawsuit against the Austrian government in an American court, accusing it of complicity in a ski resort fire in 2000 that killed 155.

"The timing of the leaking of the police files, which were doctored or inaccurate, comes at a time right when we have sued the Republic over a bunch of issues," Fagan said. "There is nothing coincidental about the timing."

Fagan rose to fame in the mid-1990s, when he was the first lawyer to bring suit against the Swiss banks on behalf of Holocaust victims and their heirs, who were attempting to claim accounts that had been dormant since World War II. Fagan was famous for holding high-profile press conferences during which he made the case against European companies and governments.

The Swiss banks eventually agreed to a $1.25 billion settlement, but Fagan never realized the lawyer's fees that he had anticipated. He has nonetheless continued his legal battles against European governments, including Austria. He has frequently traveled to Austria to deal with these cases.

The leaks regarding the prostitution investigation were first reported at the end of August by the Austrian magazine Falter. Fagan was the only person named specifically in the news reports that followed. The case in question stems back to November 2004, when two men were convicted in Austrian court for running escort services involving underage Eastern European women. The Austrian state prosecutor only recently began investigating the customers of these call girl rings, to determine whether any customer had knowingly sought out underage prostitutes, according to news reports.

The Vienna state prosecutor did not return calls seeking comment.

Fagan told the Forward that he knew one of the men, named Peter, who was convicted last year. Fagan said he met Peter while investigating paintings taken from Jewish families during the Holocaust. Fagan said he found out that Peter ran an escort service, when Peter was helping Fagan track down some of the stolen paintings.

Fagan declined to say if it was Peter who had introduced him to Inga. About Inga, Fagan said, she "continues to be a friend of mine — at one moment she was more than a friend."

In early September, Fagan gave an interview to the Austrian magazine, News, in which he is reported to have said: "It would have been an offense to not sleep with her. Later we slept with each other without any payment."

Fagan said that he was interviewed in English, and would not comment on the German translation that appeared in the Austrian magazine.

The accusations in Austria are not the only pending problem for Fagan. In the United States, Fagan is the subject of an ethics investigation that could lead to his disbarment. The New Jersey Office of Attorney Ethics has accused him of "knowing misappropriation" of client money. The special ethics master overseeing the case, Arthur Minuskin, recently denied Fagan's request that the case be dismissed because of his medical incapacity. Hearings are scheduled for mid-November.

Holocaust: Victim Assets Litigation
Holocaust: Victim Assets Litigation-Names(Swiss Banks)
Simon Wiesenthal Center

Stupid in America - John Stossel