Topic: Professions & Institutions

Legal Process As Extortion
(3/25/2005)

In chess, it is sometimes said that the threat is more powerful than the execution. It means that bending an opponent to your will through fear and intimidation can serve your ends more effectively than the results of a successful attack. Lawyers, who engage in a variety of chess where the stakes are money and lives, know this principle well. Some of them abuse it on behalf of unethical clients. Call them legal bullies. The ethics rules for lawyers do not hold lawyers accountable for the nasty objectives of their clients (unless they are illegal), only for the manner in which they achieve them. Usually legal bullies, win or lose, just collect their fees and move on to the next case. This is a story of one that went too far.

Steve Morton, heir to the Morton Salt fortune and a noted California art collector, had purchased "Lassoing a Longhorn," a western painting that was signed and presumably painted by the famed western artist C.M. Russell. He bought the 21-by-27-inch watercolor in 1972 from the Kennedy Galleries in New York for $38,000. By 2001, Russell originals were all the rage, and the estimated value of "Lassoing a Longhorn" had ballooned to $800,000. Morton wanted to cash in, but when he tried to sell to sell the painting, an art auction house was dubious. It thought the piece might be a forgery; specifically, it thought that the painting was really the work of another, less acclaimed Western artist, O.C. Seltzer. It asked the most respected expert on Seltzer to examine the painting. His name was Seltzer, too…not surprising, really, because he was O.C. Seltzer's grandson, as well as a specialist in Western art.

Sure enough, Grandson Seltzer determined that it wasn't a Russell at all, but was the work of his grandfather. Russell's signature, he said, had been forged. This made the painting worth a lot less, about one-tenth of its likely sale value had it been an authentic Russell. Morton was disappointed. He was also ticked off at Seltzer, and decided that he needed to be persuaded to change his mind.

So in July of 2002, Morton sued Seltzer in federal court, alleging defamation, negligence and interference with business dealings, and seeking $750,000 in damages. The suit, filed by Morton's law firm, Gibson Dunn and Crutcher, claimed that Seltzer's opinion was "untrue," and that it "destroyed the sellability of the painting, blemished irreparably its authenticity, defamed the provenance and authenticity of the painting," and lowered its value by more than 95 percent.

As a lawsuit, it was no contest. Seltzer obtained affidavits from several western art experts who all agreed the painting was done by O.C. Seltzer. Morton, meanwhile, couldn't come up with a single expert to back up his claim. In February of 2003, Morton dropped the case.

Then Seltzer replied with a lawsuit of his own. He alleged that Morton and his attorneys had filed the federal suit solely in an attempt to force Seltzer to recant his position, in essence using the legal process to make him lie for Morton's economic benefit. There was, Selzer's lawyers said, no other rationale for suing Seltzer. He hadn't even been paid for his assessment of Morton's painting, and his credibility and reputation as an expert on O.C. Seltzer were well established.

Furthermore, it was the art auction house that raised suspicions about the purported Russell, which is why they called in Seltzer. By the time all of the art experts had weighed in under oath in support of Seltzer, this law suit was no more of a contest than the first. A jury of six men and six women awarded Seltzer $1.1 million in compensatory damages for the damage to his reputation caused by Morton's unfounded attack on his integrity. Then, after hearing an hour-long discussion of punitive damages (the extra money a jury can require that a defendant pay if the conduct involved was especially atrocious), the jury ordered Morton to pay an additional $100,000…and his law firm to pay $20 million.

The trial had revealed that the firm had sent Seltzer letters insisting that he reverse himself regarding the painter of "Lassoing a Longhorn" or be subjected to a damaging lawsuit…a threat, in the judgement of the jury, designed to force Seltzer to lie. By lying, of course, he would also be aiding and abetting an eventual sale of a painting for an inflated price due to misrepresentation. The evidence at trial indicated that the firm knew Morton's game: before the suit against Seltzer was withdrawn, it had written to the art gallery that sold Morton the Seltzer, alleging that the painting was "a fake" and demanding compensation.

Naturally, the jury's whopping verdict will be appealed. But it sends a message that will be received and perhaps heeded by the many legal bullies out there. The legal process is available to seek justice, and if you are going to use it as a club to try to force others to do wrong, you may not be able to hide behind the standard that as a lawyer you were just "zealously representing the client." Some lawyers and legal ethicists will argue that this is dangerous, that it isn't and shouldn't be an attorney's role to substitute his morality for his client's. Others, like this one, will point out that a lawyer is permitted to drop a client when his objective becomes revolting and unjust. Making lawyers accountable for the damage that results when they knowingly assist people who are trying to do bad things is fair, reasonable, and wise.

 

   
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