The Maine Attorney General’s Office says the estate of Robert Indiana paid several law firms too much money during its costly legal battle and wants the estate’s attorney to return $3.7 million to the late artist’s foundation.
The AG’s office filed the petition in Knox County Probate Court on Monday as part of an investigation into the legal fees paid and charged by the estate’s personal representative, Rockland attorney James Brannan, in ongoing legal matters since Indiana’s death at his home in Vinalhaven nearly three years ago.
Brannan last week asked the probate court to set a deadline for the attorney general’s office to serve notice to seven law firms in Maine and New York that it believes were overcompensated. The AG’s memo, written in response to Brannan’s request, did not explain why it believes Brannan, not those firms, is responsible for the overpayment. A spokesman for the AG’s office declined to comment beyond the filing.
“The (personal representative) should not be permitted to evade his own responsibility by requiring the firms he overpaid to defend to the Attorney General or to the Court the bills they submitted,” Assistant Attorneys General Linda J. Conti and Christina M. Moylan wrote in the memo.
If Brannan plans to recoup the money “that he improvidently paid to any firms,” he should do so himself and inform the court of his intent, the memo said. “The Attorney General’s Petition for Review of Compensation is focused solely on the Personal Representative’s actions,” and asks the court “to allow for immediate full discovery” and for the probe to continue.
Brannan’s attorney, Sigmund D. Schutz, filed a formal reply late Wednesday, rejecting the attorney general’s claims that Brannan is responsible for the fees in question. He said the attorney general is going after the wrong person, and cited a statute in Maine law that he says is explicit about who is responsible. “The problem with the Attorney General’s position is that (Maine law) provides for the return of money to an estate by ‘any person who received excessive compensation,’ not by the person who paid that compensation,” Schutz wrote, quoting the statue and using italics for emphasis.
In an email, he added: “Not really that complicated. If the AG thinks that anyone got paid too much, the AG has to give them formal notice. That’s not asking a lot. The AG has to follow the law, just like everyone else.”
The focus on attorney fees and who is responsible for them coincides with the emergence a signed settlement in the larger legal fight over Indiana’s legacy. The settlement, which is expected to remain sealed from public view, is scheduled to take effect May 17, ending the primary part of a bitter legal fight that has clouded Indiana since his death at age 89 in May 2018. Best known for creating the image “LOVE” with a tilted “O,” Indiana lived his final 40 years on Vinalhaven island in the Star of Hope Lodge, an old wooden structure on Main Street, where the work of his foundation will be based.
His longtime art dealer, the Morgan Art Foundation, filed a federal lawsuit against Indiana in the Southern District of New York on May 18, 2018, when it became concerned that another art dealer in his life, the New York-based art publisher Michael McKenzie, was making artwork under Indiana’s name in violation of Morgan’s contracts. Morgan further alleged Indiana’s island caretaker, Jamie Thomas, isolated Indiana from his art-world friends. Indiana died soon after the suit was filed, and Brannan became the estate’s personal representative a week later, on May 25, 2018.
Other lawsuits followed. Morgan sued the estate, the estate countersued Morgan, and Thomas sued the estate – all ending in sealed settlements. Even with the settlements, litigation involving McKenzie continues.
The attorney general’s office became concerned about mounting fees in November, when it learned Brannan had paid his attorneys and himself more than $6 million at that time. It petitioned the probate court for a review of those fees, which the court granted. As part of that review, the attorney general hired experts to examine attorney fees and personal representative fees. On April 1, the attorney general’s office shared its analysis of attorney fees with the estate and included “seven detailed spreadsheets, one for each firm paid by Personal Representative for legal services through Jan. 31, 2021.” They reviewed $8.43 million in legal invoices from seven firms, all already paid, and demanded that $3.73 million be returned.
The memo does not name the firms, and Brannan’s fees as personal representative are not included in those figures. It represents only the money paid by the estate to hired legal counsel.
On April 5, the attorney general’s office notified the estate it was still reviewing Brannan’s fees as personal representative fees and “further work was being done to arrive at a specific demand.” Previous legal filings suggested Brannan has charged $1.45 million to the estate for his services and paid nearly $1 million.
Brannan replied by filing a motion with the probate court April 14 seeking to require the attorney general to add the names of additional firms to the review proceeding.
But the attorney general has no intention of doing so. “The Estate misapprehends the nature of the relief sought by the Attorney General. The Attorney General does not intend to ask the Court to order any person who has received excessive compensation from the Estate to make an appropriate refund,” according to the memo. “Rather, the issue is whether the Personal Representative improperly overpaid for legal services, at the expense of its sole beneficiary, a Maine charity, and what if any action this court should take with respect to the (Personal Representative’s) fiduciary responsibility to the Estate and its sole beneficiary.”
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