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
New York, September 8, 2000
on the great Holocaust Industry
shakedown and the shysters
running it for
in Holocaust Case Faces Litany of
September 8, 2000
By BARRY MEIER
than four years ago, a little-known
personal-injury lawyer named Edward D.
Fagan stood next to an
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
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
"It's like a posse," the tall,
Fagan said. "There are all these bad guys
all over the world, and we have to track
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
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
"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
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
"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
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
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
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
"I wanted to be a rabbi," he said.
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
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
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
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
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
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
The Cases Left
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
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
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
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
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.
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
"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
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
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
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
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
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
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
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
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
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
"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
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
"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
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
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
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
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
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
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
New Clients to
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,
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
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."
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.
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