The man who was dubbed New York’s most obnoxious lawyer (what a distinction!) by the Village Voice has been denied $1.2 million in contingency fees for his disregard to the judicial system and flight from New York to avoid arrest on contempt charges. No other lawyer in New York had been ousted for “obstructive and offensive behavior which did not involve fraud or deception” – until Kenneth Heller. According to one adversary, Heller was disbarred for basically “being an asshole,” which “takes some doing.” From his actions in a wrongful death suit (which was unrelated to his disbarment), you can easily see why he was denied the $1.2 million fee.
Quoting an opinion of the appeals court in Manhattan that disbarred Kenneth Heller in 2004, Southern District of New York bankruptcy Judge Stuart M. Bernstein wrote that Heller’s refusal to turn over files in a matter that was eventually settled for $3.7 million was “symptomatic” of a record of “utter contempt for the judicial system.” Bernstein’s ruling in In re Ruby G. Emanuel, denied Heller any share in the $1.2 million the judge had awarded to the law firm of Jacoby & Meyers, which took over from Heller the wrongful death case of James Emanuel, a worker who was fatally injured in a 1992 accident at the Brooklyn Navy Yard.
In that case, Ruby Emanuel, James Emanuel’s widow, had originally retained Heller to represent her in a wrongful death action stemming from her husband’s untimely death shortly before filing for bankruptcy in 1997. The jury returned a verdict of $25 million in 1999, but Justice Leland DeGrasse reduced the award to $7.6 million. However, in 2004 the Appellate Division reversed the Manhattan Supreme Court and ordered a new trial because according to Judge Bernstein, Heller had proceeded on a “faulty theory” in the case.
Then, about a month after the reversal, the 1st Department disbarred Heller in an unrelated case for his history of unruly behavior:
“In light of the cumulative evidence of respondent’s 24-year history of sanctions, his perverse and persistent refusal to accept adverse rulings, reflective of an utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included screaming at, threatening and disparaging judges, adversaries and experts, intentionally defying court rulings, and disrupting and thwarting proper legal process through both physical and verbal aggression, we are of the opinion that the appropriate sanction here is disbarment.”
Following Heller’s disbarment, Ms. Emmanuel began looking for a new lawyer to represent her in the mattter, eventually settling on Jacoby & Meyers to handle the retrial in state court. When the new law firm asked Heller to forward his files in the matter, he refused, even though as Judge Bernstein noted, “terminated lawyers normally send their files promptly to new counsel to be sure that the interests of the client are protected.” Indeed, this is mandated by many state ethics codes.
Through countless requests and 2 ½ years, Heller never budged and only offered various excuses as to what had happened to the missing client files – lost in a house upstate, damaged by a flood, discarded by workers – as the case was passed among five judges throughout New York. Jacoby & Meyers finally obtained a Contempt Order from Justice Howard R. Silver in the Bronx, fining Heller $10,000 and ordering him to serve 30 days in jail for flouting an order to turn over the files.
The 80 year-old Heller was eventually arrested in February 2007 and served a night in jail before an appellate judge lifted the sanction. However, the punishment was reinstated two months later and the contempt order and punishment affirmed by the 1st Department. When Heller refused to turn himself in he became a fugitive. As law.com reports, at approximately the same time, a half-dozen deputies, pursuant to a warrant issued by Justice Silver, broke into Heller’s office in search of the files, but came up with nothing.
Then in July Judge Bernstein held a hearing in to assess Heller’s claim to a portion of the $1.2 million fee. Heller requested permission to testify via a video hookup because he was afraid of being arrested if he came into New York to testify. Bernstein denied the request because Heller had fled the state to “avoid punishment meted out by a state trial court judge.” Finally, in his decision last week, Bernstein found that Heller had obstructed Jacoby & Meyer’s “attempt to retry the case he lost,” and that his refusal to turn over the client files resulted in “prejudice to plaintiff’s right to a new trial in this action for maritime wrongful death.”
Nonetheless, Bernstein concluded, the new firm had done “the best it could” in securing the $3.7 million settlement. Michael S. Feldman, Jacoby & Meyer’s lead attorney on the case, stated that they only had the record on appeal to work with in negotiating a settlement. While Heller’s files consisted of 43 boxes of material, the record on appeal filled only 2 boxes, Feldman said. And unfortunately the defendant’s records in the underlying wrongful death suit had been destroyed in the attack on the World Trade Center on 9/11 where its law firm, Hill Betts & Nash, had its offices, Feldman added. “We had to proceed without videos and photographs of Mr. Emanuel” who was paralyzed from the neck down and eventually died, Feldman also stated. Ms. Emanual was also denied access to witness notes and the full transcripts of depositions due to Heller’s refusal to turn over his files.
Richard Tenenbaum, a lawyer who represented Heller during a one-day hearing in bankruptcy court last summer, described the 80 year-old Heller as a former seaman who is “a tough old bird,” but “a master of maritime law.” One Bronx jurist has described him as a “pre-eminent maritime attorney,” and Heller estimates that over his career he has obtained verdicts totaling more than $70 million.