A Manhattan federal judge has thrown out a legal malpractice suit arising out of competing Holocaust restitution claims. In 2005, a group of nieces and nephews of Jewish publisher and art collector Gustav Kirstein and his wife Clara, both of whom died in Germany in the 1930s, sued their former lawyer, New York’s David J. Rowland, claiming his mistakes caused them to have to share restored property and funds with another claimant.

But in Nordwind v. Rowland, No. 04 Civ. 9725, Judge Donald C. Pogue, sitting by designation in the Southern District of New York from the U.S. Court of International Trade, granted summary judgment to Rowland, finding that the relevant German restitution law would not have permitted the nieces and nephews a full recovery.

After their deaths, the Kirsteins’ estate passed to their daughters, Gabrielle Jacobsen and Marianna Baer, both of whom had emigrated to New York, where Jacobsen died in 1957 and Baer died in 1986.

The nieces and nephews retained Rowland in 1998 to represent them in seeking restitution for property lost or seized during Nazi rule. That included a number of art works as well as bank accounts. The nieces and nephews had been assigned Marianna Baer’s interest in the Kirstein estate by her daughter-in-law Miriam Reitz Baer.

But Jacobsen’s interest passed to her adopted son Godfrey, who died in 1980, naming a woman called Christel Gauger as his sole heir. Rowland determined Gauger held Gabrielle Jacobsen’s interest and sought to represent her as well. She would receive a 50 percent interest in property and funds restored to the Kirstein estate, with the other half going to the nieces and nephews.

In their malpractice suit, the nieces and nephews claimed that Gauger was not entitled to the recovered assets, and that Rowland should not have included her in the claims. They argued that, under New York inheritance law, Godfrey Jacobsen could not have passed along a claim for recovered property to Gauger because the statute creating such claims was not enacted by the German government until 1990, 10 years after his death.

But Pogue ruled that the German Property Claims Act created a direct right in Gauger as Gabrielle Jacobsen’s legal successor at the time of its enactment, and did not have to pass through Godfrey Jacobsen’s 1980 will.

The judge said German courts had ruled that the law was to apply to whomever would have inherited the property, had it not been confiscated. New York law applied, he said, only to determine who were the legal successors to the Kirsteins. These were clearly Gauger and Reitz Baer, he said.

Pogue also dismissed breach of contract, breach of fiduciary duty and negligence claims as duplicative of the legal malpractice claim. And he threw out indemnification claims filed by Rowland against the Commission for Art Recovery, which helped recover 80 art works for the Kirstein estate, as well as law firms Clifford Chance and Squire, Sanders & Dempsey, which had represented the commission in the recovery efforts.

The plaintiffs were represented by Bruce J. Ressler of Ressler & Ressler. Rowland was represented by Debra Bernstein of Tarter Krinsky & Drogin.

(Source: Law)