Litigation
Jul. 23, 2002
Holocaust Case Spurs Fee Fight
LOS ANGELES - A Century City lawyer is fighting to keep the fat legal fee that a German reparations fund paid him for settling a Holocaust survivor's slave-labor suit allegedly without his client's permission.
Sole practitioner Barry Fischer has asked for summary judgment against Germany's Foundation "Remembrance, Responsibility and the Future," which sued the attorney last month for return of a $315,175.05 legal fee plus punitive damages.
A hearing on the fee battle is set for July 29 in U.S. District Court. Foundation v. Fischer, 02-0448 (C.D. Cal., filed June 6, 2002).
The dispute is linked to a case that could impact Germany's 1999 deal with the United States to pay Nazi-era slave-laborers reparations in exchange for "legal peace" from further suits. Fischer's client, Joseph "Ted" Deutsch, is the sole remaining plaintiff out of 49 slave-laborer cases who continues to balk at settling his Nazi enslavement claim for German payments.
Deutsch worked 14-hour days, seven days a week, for the German construction company Hochtief and watched his brother get beaten to death in front of him. Despite the Department of Justice's warning that Deutsch's suit threatens to "supplant a half-century of international diplomatic and political efforts by the United States to redress Nazi wartime wrongdoing," the 79-year-old Holocaust survivor wants his day in court.
"I don't care what anyone else wants to do," Deutsch, a retired jeweler living in Studio City, said. "I will do what I have to do."
Fischer, hired by Deutsch in April 2000, denies deceiving foundation lawyers last summer into believing that Deutsch agreed to give up his suit, arguing that the 79-year-old Holocaust survivor has "gaps" in memory and simply doesn't remember giving him permission to settle last July 30 in exchange for a $22,000 cut of Fischer's fee from the foundation and an apology from the German company Hochtief.
"It is clear ... that [I] had the authority to dismiss [the case], Deutsch changed his mind, and when it was beyond [my] control, and when [I] was no longer attorney of record, the Ninth Circuit reinstated Deutsch's appeal," Fischer stated in his motion for summary judgment.
Deutsch vehemently denies his former counsel's characterization.
"No way, no way!" he said recently. "It's a lie. It's a total lie. My whole life is revolved around this lawsuit. So why would I do that?"
Reached at his office, Fischer declined to comment on the specifics of the conflict.
"It's a little bit problematic because it's in litigation," he said. "I don't think I can respond [right now]."
Foundation attorney Michael W. Fitzgerald of Corbin & Fitzgerald notes that Deutsch sent Fischer a letter last Aug. 1, asking why the case was dismissed and insisting on pursuing the appeal, according to court papers.
Yet on Aug. 6, Fischer wrote this letter to Foundation lawyers: "Please find enclosed a copy of the motion of dismissal. Pursuant to our agreement, please wire me fees and costs to my bank. ... I am very disappointed that money has not been wired today. I have complied with all your requirements."
"Fischer," Fitzgerald wrote in the foundation's lawsuit, "failed to disclose ... that [Deutsch] had written to him and the Ninth Circuit, protesting dismissal of the appeal."
Deutsch's legal odyssey began when Fischer agreed to represent him in his lawsuit against the German construction company Hochtief and its subsidiaries, the Turner and Kitchell corporations.
Bucking the national reparations settlement with Germany, Deutsch wanted to forge his own path to justice through California Civil Procedure Section 354.6. That law, passed in 1999, extended the statute of limitations to 2010 for Holocaust victims seeking damages for Nazi-era wrongs by German companies - at least those with a presence in California.
U.S. District Judge Stephen Wilson threw out Deutsch's case in August 2000 on grounds that it presented a "non-justiciable" political issue, or one in which it wouldn't be feasible for the court to carry out and enforce a decision.
And four days after Wilson dismissed Deutsch's case, Fischer wrote Deutsch, urging him not to pursue an appeal.
"I recommend that you rethink your position and allow dismissal of your case," Fischer wrote Aug. 29, 2000.
"I believe you are hurting yourself, all other Holocaust survivors and my own personal chance to recover attorney's fees in your case for all the hard work I have done for you," Fischer said.
Although Fischer had filed suit on Deutsch's behalf after Germany hammered out its reparations deal with the United States, the German foundation had promised to give Fischer a cut of the millions it had set aside for plaintiffs' attorneys involved in crafting the settlement - if he could get Deutsch to go along.
"The [foundation] objected to giving Fischer any award, in part because the pendency of the Deutsch appeal was inconsistent with the legal peace that was essential to the creation of the Foundation." Fitzgerald stated in court papers.
However, "[the foundation] determined that it would not maintain its objection to the disbursement of DM 726,356 to Fischer if the Deutsch appeal was dismissed with prejudice," Fitzgerald stated.
Fischer wrote to the Foundation arbitrators July 3, 2001, that "I have been authorized by my client Mr. Deutsch to dismiss his appeal in exchange for a letter of apology from Hochtief."
On July 30, Fischer told the appeals court to dismiss Deutsch's case based on an "agreement between the two parties."
The 9th Circuit granted the dismissal Aug. 2 but vacated it Aug. 10 after hearing from Deutsch.
The foundation wired Fischer his fee sometime between those dates, according to the lawsuit, then sent a letter Sept. 9 demanding its return.
"Fischer has never responded to this letter," Fitzgerald contended.
Oral arguments in Deutsch's 9th Circuit appeal are pending, said Deutsch's new appellate lawyer, Nate G. Kraut.
"He wants to prove what Hochtief did," Kraut said. "He wants his day in court."
Though he hasn't decided whether to pursue a lawsuit against Fischer, Deutsch has hired another lawyer, Michael P. Rubin, to look into it.
"I have not filed a complaint yet on behalf of Mr. Deutsch," Rubin said.
Rubin said he believes that, if Deutsch accepted a settlement with the foundation, his lawyer should have gotten that agreement on paper.
"You would get it in writing. In blood. In duplicate. With witnesses and a rabbi," Rubin said.
For the Record The Barry Fischer involved in the case featured in the July 22, 2002 atory published in the Los Angeles Daily Journal called, ?Holocaust Case Spurs Fee Fight,? is not Barry A. Fisher of Fleishman & Fisher.
Barry A. Fisher of Fleishman & Fisher was a U.S. signatory to the multinational settlement ending Holocaust class actions against German companies and was singled out for being ?an important voice for victims who would otherwise have been unrepresented.?
Sole practitioner Barry Fischer referred to in the article filed several lawsuits on behalf of Holocaust survivors following the multinational settlement.
Amy Koval
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