It was not the banks. The Swiss, recognizing a losing proposition, waved the white flag on this issue more than seven years ago and coughed up 1.25 billion dollars. Probably not as much as they should have, but it was as good as the survivors would probably get.
No, the problem was within survivors camp. Specifically, its with their attorney, Burt Neuborne. Professor Neuborne has been involved in civil rights and public interest cases for years. Among the more notable cases he was the attorney for were the pilots who refused to bomb targets in Cambodia during the Vietnam war, the Socialist Labor Party's case to get on the ballot for presidential elections, legal-aid lawyers suing the government, and New Jersey v. TLO.
Now, I am not going to comment on the way the funds were distributed. There is a lot of controversy over exactly what was said and who it was said by during the settlement conference between the people contesting the plan to send the majority of the money to destitute survivors living in Eastern Europe, instead of making it avaialbel equally to destitute survivors living in the United States. No matter what decision was made, the person making the decision was going to catch fire for it.
The shondah here stems from Professor Neuborne's actions. Specifically, his request to be paid more then 4 milion dollars. Now, you may be asking, if you are a plaintiff's attorney, why should he not get paid? Simply put, he told people that he was doing the work "pro bono".
It is undisputed that when Professor Neuborne started the litigation on behalf of the survivors as a pro bono counsel. This means, he was doing the work for free, for the good of those he was representing. Yet somewhere along the way, perhaps as early as 2002, more than four years into the case, Professor Neuborne started to indicate that he expected to get paid. There was no order changing his status in the case from pro bono to paid counsel. No explicit choice was given to the people who he was supposed to represent in the class action against the banks.
Fully aware that the 1.25 billion settlement, along with a further 100 million in subsequent settlements with other entities in the litigation, would not be enough to satisfy the needs of all the Jewish survivors of the Holocaust, this man still thought it was right and necessary to submit a bill for himself. Apparently his tenured position at the law school, and his previous work as head of the ACLU's legal director, and acting as a talking head for CourtTV did not take care of his cost of living. Instead, he decided that what would really serve the survivors of the Holocaust best was to charge them $700/hour.
This $700/hour fee was discounted by 25%, at least until his clients objected. For having the temerity to object to this undisclosed fee, he raised the initial fee request by $671,000. And he wonders why people are angry.
In striking back at his critics, he states that,
Those of you working in large firms know that senior litigation partners routinely bill more than $700 per hour. Partners at Cravath, Debevoise and Heller Ehrman had submitted sworn declarations stating $700 an hour was a bargain for work of my quality. I am not a novice. I have practiced for more than 40 years, served as National Legal Director of the ACLU from 1981-86, and as Legal Director of the Brennan Center since 1995. I have argued and tried hundreds of cases, many in the Supreme Court. The National Law Journal selected me as one of the 100 most influential lawyers in America. I was elected to membership in the American Academy of Arts and Sciences in 2002. Maybe the Times knows the true value of my services better than the market, but I doubt it. During the middle ages the Catholic Church insisted that Jewish merchants charge a “just price” instead of market value. The Times has gone into the same business.
(from PrawfsBlawg citing the response of Neuborne to the NYT) (For the rest of the New York Times Piece he is referring to, that is here. For Professor Neuborne's initial response, that is found here, scroll down till you get to it.)
So the hero of the under-dog, shaper of legal minds, and supposed representative of the Holocaust survivors, uses as his defense that the New York Times is adopted an anti-semetic argument?
In another piece in the Los Angeles Times, Professor Neuborne wrote that, "Korman has publicly acknowledged that he "retained me" and that I am entitled to a fee." He then goes on to say that no notice was given, alleging that the class of people he was representing were not entitled to pro bono counsel. He then goes on to state that,
But for my work, there would have been no money to distribute to anyone. Given my years of dedication to the survivor community, and my success in assembling and distributing more than $6.5 billion to Holocaust victims over the last decade, I do not apologize for seeking a reasonable market fee for my years of successful service in the Swiss banks case.I find it interesting how now, years after taking on the case, he states that the phrase "I have retained" Professor Neuborne should have indicated to the members of the class that he was now expecting to be paid. Incidentally, that phrase does not mean a lawyer is entitled to money. As a pro bono attorney, all of my pro bono clients "retain" my services even though they will never, by definition, pay me.
This is simple. Professors Neuborne took on the case as a pro bono matter. The case, which he should have recognized from the start, was always going to take a long time. However, when you take a pro bono case, it is expected that you do the work for free. The lawyer doing the pro bono work is supposed to be doing what we Jews call a "Mizvah".
Now, I do not have 40 years of experience. However, I do take more than my fair share of cases as a pro bono attorney. In some of them, I obtain, on behalf of the clients, monetary payouts. Using Professor Neuborne's logic, I should be getting a percentage of that based on the hours I spend on it and then multiply it by his excellence factor.
It looks like Professor Neuborne has forgotten what the purpose of the case was: to get restitution for those who were the victims of an atrocity. Unless the Swiss Banks were to be ordered to pay his fees in addition to the restitution to the survivors, he should not have expected, asked, nor requested fees except to reimburse his costs. Simply because he made sure that the money was not sapped by taxes is not a good enough reason to allow this change in his status to occur.
His request has been essentially approved by the courts. A federal magistrate in New York, where the case is on-going, has written an advisory opinion for the court stating that he should receive just over $3 million. This is about $1 million less than his initial request. The judge overseeing the case has the final say, but it appears that he will most likely rubber-stamp the advice of the magistrate.
This to me is mind boggling. It is unjust, unfair, and rewards a man for something he was not entitled. Nowhere can I find mention of a retainer agreement. Nowhere does it appear that at the time there was a change in his status that was made known to the members of the class.
This man, who has done good in so many other cases, has taken the low road in this case and become a gonief, instead of taking the high and being a mensch.