Alex Constantine - November 5, 2012
By IULIA FILIP
Courthouse News Service, November 02, 2012
A federal judge rebuffed a disbarred lawyer's second attempt to stake a claim against Nazi-looted art in Czech galleries on behalf of Holocaust survivors.
Before his ouster, Edward Fagan successfully represented thousands of Holocaust survivors and their descendents in restitution lawsuits over bank accounts and property confiscated from Nazi victims during Hitler's occupation of Europe. Fagan's reputation and business, however, began to decline after former clients accused him of negligence and fraud.
Fagan was dismissed from the New York and New Jersey Bars in 2008, after a federal judge found no trace of a Holocaust survivor group Fagan purported to represent and imposed sanctions that Fagan could not pay.
Earlier this year, Fagan sued the Czech Republic and two of its museums on behalf of Victims of Holocaust Art Theft, a Boca Raton entity, seeking the recovery of Nazi-looted art valued at more than $50 million. Fagan claimed he co-owned the entity with several individuals who sought restitution in Eastern European countries, including Michal Klepetar, the great-nephew of prominent Czech-Jewish art collectors Richard and Regina Popper, who died in a Nazi ghetto in the early 1940s. The art collection the Nazis seized from the Poppers allegedly contained 125 Old Masters, including German, Dutch, French and Spanish works from the 16th to the 19th centuries, some of which found their way to Prague's National Gallery.
U.S. District Judge James Cohn dismissed the action in July after Fagan failed to get a licensed attorney to represent Victims of Holocaust Art Theft. Cohn ruled that Fagan could not represent the organization on a pro se basis because it was controlled by at least one other person.
Though Fagan had argued that Victims was not a separate legal entity, but rather a fictitious name that he was using to litigate his individual claims, the judge concluded that the ex-attorney was likely using the entity to represent other persons' interests in the litigation, despite his disbarment. The same day that the court dismissed the lawsuit, Fagan filed a second action, claiming to represent only his interest in the artwork, which he had allegedly acquired from Klepetar.
Cohn again concluded that Fagan's pro se lawsuit was a transparent attempt to litigate other people's claims without a license.
"Despite Fagan's cosmetic changes to the complaint, it remains clear that he is seeking to represent the interests of other persons in addition to his own interests," Cohn wrote.
The judge reiterated that Fagan may not represent any other person in federal court, especially after his disbarment.
In a letter submitted to the court, Klepetar confirmed that Fagan's attempts to recover the Popper collection affected his interests in the artwork, and that he hoped to benefit from a possible restitution, according to the order.
"For all these reasons, the court finds that this case is another improper attempt by Fagan to represent Klepetar and other persons with an interest in the Popper Art Collection," Cohn wrote in dismissing the lawsuit.
Fagan is no stranger to the tactic of acquiring a partial interest in Nazi-looted art for the sole purpose of pursuing restitution lawsuits, according to the ruling. This same behavior previously attracted sanctions from a Manhattan federal judge and led to his disbarment.
Cohn dismissed the complaint without prejudice, but warned Fagan that further inappropriate filings will result in dismissal and sanctions.