If lawyers ever wonder, in a rare moment of introspection, why they are generally held in low esteem, they need look no further than the obscene fee application pending before a federal magistrate judge in Brooklyn, N.Y.
Burt Neuborne, the court-appointed lead settlement counsel in a class action brought on behalf of Holocaust survivors against Swiss banks, has turned himself into the poster boy for avaricious attorneys. He demands $4.75 million for his role in administering the $1.25 billion settlement and determining distribution of the money.
Neuborne, a tenured professor at New York University's law school and legal director of NYU's Brennan Center for Justice, is looking to profiteer from Holocaust-era litigation. Survivors he purports to represent in the litigation have received $1,450 each. A decision on his fee application could come any day.
No one can be required, or should be expected, to work for free. Lawyers - like doctors, plumbers or cab drivers - have a right to make a living. There is a difference, however, between fair compensation and utter exorbitance.
Neuborne wants to be paid $700 an hour for the roughly 6,800 hours he claims to have spent on the Swiss banks case between Feb. 1, 1999, and Oct. 1, 2005. (Earlier this year, he agreed to remove 1,500 hours from his fee application after some of his billing practices were challenged.) That averages out to about 20 hours a week, for which he wants to be paid, again on average, $675,000 a year. This would be on top of $4.4 million he received in 2001 from another Holocaust-era settlement with German corporations that had exploited Jews and Roma/Sinti as slave laborers during World War II.
In sharp contrast, Kenneth R. Feinberg, who served as the special master of the September 11th Victim Compensation Fund, worked entirely pro bono.
Neuborne acknowledges that U.S. District Judge Edward R. Korman asked him in early 1997 to "serve in a pro bono capacity as co-counsel for the plaintiffs" in the Swiss banks litigation. As recently as September 2005, Neuborne told a federal judge in Miami that he was "the lead settlement lawyer in the Swiss case, in which I served without fee now for almost seven years."
Three months after that, he submitted his multimillion-dollar tab to the court. He now argues that $4.75 million is a smaller proportion of the $1.25 billion Swiss banks settlement than he would normally be entitled to in a federal class action.
BUT THE Holocaust was not just another mass tort. Governments, banks, insurance companies and private corporations all participated in, profited from or failed to prevent the brutal annihilation of European Jews. Unlike typical class-action lawsuits, in which a manufacturer is deemed liable for a defective product or a corporation is charged with discrimination, the various Holocaust-era litigations are rooted in a crime against humanity for which much of the international community - including the United States - bears at least some responsibility.
Stuart E. Eizenstat, who negotiated many of the Holocaust asset settlements while serving as undersecretary of State and deputy secretary of the Treasury in the Clinton administration, explained that these cases gave him, in his words, "a chance to help remove a cloud over the history of the United States, which had sacrificed so greatly to win the war but done so little to prevent civilian genocide and then help its survivors after the conflict."
Lawyers who take on matters in this context have moral and ethical obligations that transcend their narrow self-interest. They should view their representation of Holocaust survivors as an opportunity to bring about a long-delayed measure of justice rather than a means of enriching themselves.
In October 2000, Neuborne wrote in a letter to the editor in The Nation that "every penny in the $1.25 billion Swiss bank case will go to Holocaust victims." US Magistrate Judge James Orenstein, who has broad discretion in recommending what Neuborne's fee should be, should bear those words in mind as he ponders his ruling.
In addition to compensating account holders or their heirs, the Swiss banks settlement provides for modest payments to former slave laborers and allocations to social-service agencies that care for the neediest Holocaust survivors. Every dollar awarded to Neuborne by the court is one that could otherwise assist a victim of the Holocaust. Many elderly survivors - living on the Lower East Side of Manhattan, in South Florida or elsewhere - cannot afford desperately needed medical treatment. The combination of Medicare, Social Security and the meager reparations that some of them receive from Germany is insufficient to pay for doctors, extended hospital stays, nursing care, prescription drugs, eyeglasses and the like.
One of the principal purposes of the Holocaust asset litigations is to provide a safety net for the men and women who suffered so horrendously at the hands of the Nazis and to enable them to live out their remaining years with a modicum of dignity. That is why the court should repudiate Neuborne's excessive greed and instead designate most, if not all, of the $4.75 million he seeks for the benefit of survivors.
The writer, a lawyer in New York, is founding chairman of the International Network of Children of Jewish Holocaust Survivors.
- Los Angeles Times