Ed Fagan

Edward Davis (Ed) Fagan (born October 20, 1952) is a former American reparations lawyer who was disbarred for his conduct involving dishonesty, fraud, deceit, or misrepresentation.[1] Fagan lost his license in both New York[2] and New Jersey for failing to pay court fines and fees and for stealing client money and escrow trust funds from Holocaust survivors. He currently lives in Boca Raton, Florida.[3]

Background

Fagan was born in Harlingen, Texas and raised in a Conservative Jewish[3] home in San Antonio, Texas and has two children. Prior to embarking on his legal career, he traveled to Israel to take part in the Yom Kippur War.[3][4] After returning to the US, he enrolled in Cardozo School of Law and graduated in 1980.[5] He initially worked as a personal injury lawyer,[2] then worked with a large law firm, representing corporate defendants, before he started an exploration club for the wealthy in the 1980s, allowing rich customers to visit exotic locations, entertained and accompanied by scientists and environmentalists. A nonprofit venture of the business, the Odyssoe Foundation, was created in 1991, but collapsed with the entire enterprise.[5]

Clients and partners have stated publicly and in court, that Fagan often failed to represent the interest of his clients, he generally took on "too many clients", "vastly outstrip[ed] his resources", and was "often absent for the legal fight". According to Burt Neuborne, law professor at New York University, who had worked with Mr. Fagan before breaking with him, "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."

Career

1995 Holocaust lawsuits against Swiss banks

In the 1995, Fagan filed lawsuits against Swiss banks which had refused to repay money that belonged to Holocaust victims. The banks in question settled the claims outside of court, resulting in a payout of US$1.25 billion.

According to news reports[6] Ed Fagan even held up the final formal signing of the German slave labor settlement because he wanted more money for himself. While several hundred people and German and American representatives waited, Ed Fagan, still wearing an ABCNEWS 20/20 microphone, could be heard "haggling over the fees, and then boasting of his success". He was recorded saying, "I got the legal fees up, ... We did great, we did great we just got another, we just got some more money.”[6]

Amongst Fagan's many critics was New York University law professor Burt Neuborne, who had said on record: "We essentially worked around him, ... 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."[6] Neuborne, a leading human rights lawyer, believed that it was time to set the record straight:

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. 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 the top lawyer cause I have got the most clients."[6]

In 1998, Mrs. Gizella Weisshaus, the named plaintiff in the lawsuit against Swiss banks, opted out of that historic settlement because she felt that her attorneys were more interested in paying themselves millions of dollars, even before some of the survivors had received any money. On April 8, 1998 Mrs. Gizella Weisshauss filed an attorney ethics complaint, claiming that Edward D. Fagan, her lawyer at the time, held back $82,583.04 belonging to her from the estate of her deceased cousin Jack Oestreicher. Hal R. Lieberman, Esq. from Departmental Disciplinary Committee, Supreme Court, Appellate Division, responded on May 6, 1998, that in this "ongoing criminal proceeding" the outcome of the disciplinary investigation should be awaited.[7]

In 2000, Fagan represented some 82,000 Holocaust victims and family members (many of whom later accused him of negligence), suing governments and companies in Germany and Austria based on the Alien Tort Claims Act.

2002 slavery class action lawsuit

In April 2002 Ed Fagan filed a class action lawsuit against eighteen companies, including FleetBoston, CSX Corporation, Aetna, Union Pacific Railroad, R. J. Reynolds Tobacco Company and Lehman Brothers, accusing the companies to have "unjustly enriched (themselves) through profits earned either directly or indirectly from the Trans-Atlantic slave trade and slavery between 1619 and 1865, as well as post-Emancipation slavery through the 1960s". In January 2004 Judge Charles R Norgle dismissed the lawsuit because Fagan failed to establish a clear link between plaintiffs and the companies.[8]

2002 Apartheid lawsuit against Swiss and US banks

According to news reports by CNN, the "maverick lawyer" attempted to file a $50 billion class action lawsuit against Swiss UBS and Credit Suisse and U.S. based Citicorp Inc. for providing funds to the South African apartheid government during 1985 and 1993. Swiss Foreign Ministry spokesman Ruedi Christen dismissed the lawsuit with the following words: "It's another unjust attack against Switzerland," an opinion shared in Switzerland, where citizens told Fagan to "Go home!" and "Wash your dirty linen elsewhere", when he held a news conference on Zurich's Paradeplatz, home of the two biggest banks of Switzerland: Credit Suisse and UBS.[9]

2003 Apartheid lawsuit against Anglo American

In 2003 Fagan and South African law firm Ngcebetsha Madlanga Attorneys attempted to sue Anglo American, the word's second-biggest mining company, diamond producer De Beers, Sasol Ltd., which supplies about 44 percent of South Africa's motor fuel, and Fluor Corporation, a California-based engineering company, claiming that the companies profited from South Africa's racial discrimination policies that ended in 1994.[10][11] The claims were dismissed by a federal district judge in November 2004, Fagan was not allowed to represent the case.[12]

2004 Artwork lawsuit against Bank Austria Creditanstalt AG

In 2004, Fagan filed a federal lawsuit in Manhattan for a non-existent group called the Association of Holocaust Victims for Restitution of Artwork & Masterpieces (AHVRAM) against Bank Austria Creditanstalt AG and other European corporate, governmental and financial institutions for $6.8 billion.[13] The lawsuit alleged the theft of artworks and other property during World War II's Holocaust, but was dismissed by US District Court Judge Shirley Wohl Kram on Aug. 19, 2005, because Fagan failed to state any basis for federal court jurisdiction of the "frivolous" and "bad faith" lawsuit. Kram noted that the "plaintiff organization AHVRAM did not exist," Fagan's "lack of preparation and professionalism, his 'glaringly inadequate filings,' and the fact that he deceived the court".[14] Fagan's failure to pay the more than $350,000 in fines and litigation costs to the Bank Austria Creditanstalt AG led to his bankruptcy and disbarment.[2]

2004 slave trade lawsuit against Lloyd's of London

Claiming that the descendants of black American slaves still suffer, Fagan sued the UK's oldest insurance market Lloyd's of London for insuring ships used in the slave trade in the 1700-1800s. Fagan's interest in financial compensation was immediately criticized by Kofi Mawuli Klu, the Chair of the Pan-Afrikan Taskforce for Internationalist Dialogue (PATFID); the Anti-Slavery Abolitionist Heritage Learning movement and member of the Pan-Afrikan Reparations Coalition in Europe (PARCOE): "We have to make sure that the focus does not shift from the broad, deeper understanding of reparations to just one of financial compensation, ... We see action for reparations more as an educational issue of bringing masses of people into the fight against racism."[15]

2005 Kaprun disaster lawsuit

Fagan attempted to represent the plaintiffs in a suit brought by relatives of six Americans who died in mountain railway disaster in Kaprun, Austria, which killed 155 people, but in August 2007, Southern District of New York Judge Shira Scheindlin disqualified Fagan from representing the plaintiffs, after noting that Fagan, who had filed for personal bankruptcy, had a personal interest in the litigation's outcome and made false representations to the court. Scheindlin slapped the attorney with a $5,000 fine.[2] Fagan continues to seek winnings [2009] in this case with a former partner in the case that through their failed Florida partnership representing victims in the Louis J Pearlman fraud, allowed Fagan to vindictively sell his services to victims of that fraud. Fagan eventually deserted these clients after severely hurting their chances of any recovery due to his obstructionist and disingenuous involvement in their cases.

2005 Indian Ocean tsunami victims lawsuit

In 2005, he initiated a lawsuit on behalf of 2004 Indian Ocean earthquake victims. The lawsuit was directed against the Thai government, the US National Oceanic and Atmospheric Administration and the French hotel group Sofitel, blaming them for insufficient quake and tsunami warnings.[16]

2006 Borat lawsuit

In 2006, Fagan initiated legal proceedings, suing the makers of the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan for $30 million in damages, on behalf of two inhabitants of the Romanian village of Glod, Dâmbovita, for human rights violations. He planned to submit lawsuits in New York and Florida state courts, as well as in Frankfurt, Germany.[17] Fagan said that he hoped to "teach Hollywood a very expensive lesson". The lawsuit was thrown out by US District Judge Loretta Preska in a hearing in early December 2006 on the grounds that the charges were too vague to stand up in court. Fagan planned to refile.[18]

Malpractice

Fagan has been accused of abandoning personal injury clients in favor of the more lucrative Holocaust reparations cases. One personal injury client sued Fagan, and won a $3.2 million malpractice award.[19] Fagan has been accused of having wasted over $500,000 of his clients' money.[20]

In 1998 Judge Sterling Johnson Jr. of Federal District Court dismissed the federal lawsuit of Mr. Ortiz, noting that Mr. Fagan, his attorney, had "failed to prosecute" it for three years and had ignored court orders. The lawsuit of Mr. Ortiz, then a 49-year-old truck driver involved in a traffic accident, started in 1994, when Mr. Fagan filed a $35 million lawsuit on his behalf in federal court in Brooklyn and State Supreme Court, but Fagan failed to pursue the case after 1996. After that Fagan did not see, visit, or speak with his client.[5]

In another case Mr. Fagan failed to submit a claim for Mr. Tom Giron to a New York state fund that compensates victims of uninsured motorists. Mr Giron was struck and severely injured in 1992 by a car reported stolen, but did not receive any compensation, because, according to Jeffrey Rubinton, the fund's president, a claim was never filed and "its records showed that such an action had not been pursued and that the statute of limitations on making one had long expired."[5] Another client, Offer Salmoni, won a $167,000 malpractice judgment against Mr. Fagan, because Mr. Fagan repeatedly failed to make court appearances in his eviction case, and so the statute of limitations expired without refiling.[5]

New Jersey ethics officials filed a misconduct complaint before a grievance committee against Mr. Fagan on behalf of Diane Gibbons, another former client, who complained that Mr. Fagan failed to submit required papers in her personal injury case, leading to its dismissal.[5] During the proceedings Fagan was forced to admit that he failed to withdraw from suits that he could not pursue, excusing himself with the words: "I was in over my head a lot of the time."[5]

Sexual misconduct investigation

The Jewish Daily The Forward reported in October 2005[21] that Ed Fagan was engaged in a legal investigation about published accusations and sexual contacts with underage prostitutes in Austria. Austrian print[22][23] and broadcast media[24][25] reported that the state prosecutor in Vienna is looking into Fagan's contact with a prostitution ring that involved underage girls from Eastern Europe. Fagan confirmed the sexual contacts with a 17-year-old Lithuanian prostitute named Inga but claims that he believed the prostitute to be at least 22 years old.[21] Although prostitution is regulated in Austria, it is still illegal to knowingly hire a prostitute under the age of 18. The maximum sentence, according to § 207b (Sexual abuses of adolescents) of the Austrian Strafgesetzbuch (Criminal law) is 3 years of imprisonment.[26]

Disbarment in New Jersey and New York

In 2005 Fagan became the subject of an ethics investigation by the New Jersey Office of Attorney Ethics, accusing him of "knowing misappropriation" of client money.[27][28] On April 2, 2007, Appellate Division, 1st Department held that Fagan had "violated a number of disciplinary rules prohibiting an attorney from disregarding a court's rulings, engaging in conduct involving dishonesty, fraud, misrepresentation or deceit, and acquiring a proprietary interest in the subject of the litigation."[2]

On December 11, 2008, in the "Matter of Edward D. Fagan, M-2732, M-3148, M-3193",[1] a unanimous panel of the Appellate Division, 1st Department, ruled, that Fagan's failure to pay sanctions and money owed to Bank Austria, his "pattern of prior sanctions for unprofessional conduct" and his "lack of contrition" made him unfit to practice law.[2] Fagans will be "stricken from the roll of attorneys and counselors-at-law in the State of New York."[1] The following day, Fagan was disbarred in New York for failing to pay a court fine and fees due to Bank Austria.[2]

Following the 2008 recommendation of a special ethics master the state disciplinary board of New Jersey decided in January 2009, that Fagan should be disbarred and banned from practicing in the state because he misappropriated hundreds of thousands of dollars entrusted to him by Holocaust survivors.[3]

Bankruptcy

Fagan's finances and businesses started to collapse in the 1990s. According to public records and newspaper articles[5] Fagan began to owe large amounts of federal income taxes. In 1996 the Nynex Corporation filed a $228,000 lawsuit against Odyssoe in a New Jersey court for unpaid advertisements services, a bill that was, according to a spokeswoman for Verizon, the successor to Nynex, not even paid in 2000.[5] Facing an eviction proceeding for unpaid rent, Fagan was forced in 1997 to abandon his offices and rent space from a law firm in the World Trade Center.[5]

In 2005 Fagan had 28 outstanding court awards and liens of more than $4 million against him and his firm, Fagan & Associates, including three from clients who alleged that he neglected their cases.[29] In February 2007 he filed for protection under federal bankruptcy laws in Tampa, Florida. Court documents are said to show that he owes about $9.4 million to creditors.[30]

See also

References
  1. Matter of Edward D. Fagan, M-2732, M-3148, M-3193. Supreme Court. Appellate Division. First Judicial Department. Retrieved on October 15, 2009
  2. Walder, Noeleen G. (December 12, 2008). "Lawyer Disbarred for Failing to Pay Sanctions, Fees in Holocaust Case". New York Law Journal; retrieved October 15, 2009.
  3. Fuchs, Mary (June 24, 2009). "Lawyer Edward Fagan is disbarred in N.J. for misusing Holocaust victims' funds". New Jersey Real-Time News; retrieved October 14, 2009.
  4. Rostron, Bryan (August 12, 2002). "The business of apartheid". New Statesman. Retrieved on January 31, 2010.
  5. Meier, Barry (September 8, 2000). "An Avengers Path: A Special report.; Lawyer in Holocaust Case Faces Litany of Complaints". The New York Times. Retrieved on October 15, 2009.
  6. Ross, Brian (September 8, 2000). "Holocaust Claims Lawyer Accused". ABCNEWS. Retrieved on October 15, 2009.
  7. Original Letters. Fagan. Lieberman. Re: Attorney Ethics Complaint by Gizella Weisshauss. "Archived copy". Archived from the original on 2011-05-16. Retrieved 2009-02-09.CS1 maint: archived copy as title (link)
  8. Kleiderman, Alex (August 23, 2004). "The vexed question of paying for slavery". BBC. Retrieved on October 15, 2009.
  9. "Swiss jeer apartheid claim lawyer". CNN, June 17, 2002. Retrieved on October 15, 2009.
  10. "Workers Sue Companies Over Apartheid". The New York Times, April 6, 2003. Retrieved on October 15, 2009.
  11. Shah, Saeed (April 5, 2003). "South African mining giants face $6bn law suit". The Independent. Retrieved on October 15, 2009.
  12. Schonbrun DeSimone Seplow Harris & Hoffman LLP. Apartheid Case. Documents. 2007. Retrieved on October 15, 2009.
  13. Association of Holocaust Victims for Restitution of Artwork & Masterpieces, a/k/a "AHVRAM" v. Bank Austria Creditanstalt, No. 04 Civ. 3600.
  14. Maull, Samuel. Lawyer for Holocaust victims disbarred. The Associated Press. November 12, 2008.
  15. "Slave descendants to sue Lloyd's". BBC News, March 29, 2004. Retrieved on October 15, 2009.
  16. Australian Associated Press. "Victims to sue over Asian tsunami". The Sydney Morning Herald, March 6, 2005. Archived November 4, 2012, at the Wayback Machine
  17. Pancevski, Bojan (November 20, 2006). "Villagers to sue 'Borat'". LA Times. Retrieved on October 15, 2009.
  18. Associated Press (December 5, 2006). "NYC Judge Questions Viability Of Villagers' 'Borat' Lawsuit Archived 2007-11-16 at the Wayback Machine". abclocal.go.com. Retrieved on October 15, 2009.
  19. Lin Anthony (August 12, 2004). "Personal Injury Client Wins Malpractice Award Against Holocaust Victims' Lawyer" at the Wayback Machine (archived September 30, 2007). New York Law Journal. archived from the original on September 30, 2007.
  20. "Holocaust-Entschädigung: Schwere Vorwürfe gegen Star-Anwalt Fagan". Der Spiegel, February 18, 2005.
  21. Popper, Nathaniel (October 7, 2005). "Holocaust Lawyer Fights Accusation He Hired Underage Austrian Hooker" at the Wayback Machine (archived June 22, 2008). The Forward. Archived from the original on June 22, 2008.
  22. Klenk, Florian (September 9, 2005). "Mit Vollendung? Die Callgirlaffäre erreicht das Parlamen Archived 2008-03-21 at the Wayback Machine (German)". Der Falter. Retrieved on October 15, 2009.
  23. Nachrichten, Salzburger (September 4, 2005). "Fagan soll unter Freiern in Callgirl-Affäre sein" (German). Salzburger Nachrichten. Retrieved on October 15, 2009.
  24. "Callgirl-Ring: Ed Fagan weist Vorwürfe zurück" (German). Österreichischer Rundfunk, September 4, 2005. Retrieved on October 15, 2009.
  25. "Callgirl-Ring: Prominenten Freiern drohen Ermittlungen" (German). Österreichischer Rundfunk, August 31, 2005. Retrieved on October 15, 2009.
  26. "§ 207b Sexueller Missbrauch von Jugendlichen Archived 2006-05-01 at the Wayback Machine". Strafgesetzbuch (StGB): Besonderer Teil: Zehnter Abschnitt (German). University Salzburg. Retrieved on October 15, 2009.
  27. Covaleski, John (January 20, 2005). "Ethics Charges Leveled at Lawyer Who Fostered Holocaust Settlement" at the Wayback Machine (archived September 30, 2007). New Jersey Law Journal. Archived from the original on September 30, 2007.
  28. "Lawyer's 'hero' image tarnished". Archived 2012-07-24 at Archive.today
  29. Covaleski, John (January 20, 2005). "Ethics Charges Leveled at Lawyer Who Fostered Holocaust Settlement." New Jersey Law Journal.
  30. Weimar, Carrie (March 22, 2007). "Holocaust lawyer eyes bankruptcy". St. Petersburg Times. Retrieved on October 15, 2009.
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