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Law Firm Partner Testifies He Fulfilled Duty of Loyalty to Brooke Astor
New York Law Journal
May 29, 2009
Henry Christensen III, Brooke Astor's lawyer for more than 20 years, on his third day as a prosecution witness Thursday pointedly rejected suggestions that he had sacrificed his duty of loyalty to New York society's grand dame because he also represented her son, Anthony Marshall, who is on trial for looting her estate.
Christensen acknowledged that he had simultaneously represented both mother and son, but testified that when it came to matters relating to estate planning for Astor, he was "not representing Mr. Marshall."
Christensen, 64, a partner at McDermott Will & Emery, has not been accused of any crime. He was fired, allegedly at Marshall's instigation, as Astor's attorney in 2004.
Christensen's biography on McDermott Will's Web site describes him as "one of the most prominent private client attorneys in New York," saying he "represents some of the wealthiest individuals and families in the United States and around the world."
He has provided the prosecution with an insider's view of the relationships among the principal parties in the case.
Marshall and Francis X. Morrissey, a lawyer Marshall hired to deal with his mother's estate planning, are accused of conspiring to take advantage of Astor's Alzheimer's disease-weakened mental state to redirect millions of dollars that Astor wanted to leave to charity to Marshall instead. Marshall is also accused of stealing millions from his mother while she was alive.
Astor died in 2007 at age 105, leaving an estate that at the time was valued at $192 million.
Christensen, who was at Sullivan & Cromwell for 37 years until he joined McDermott Will in 2007, is free to testify widely in the case because Astor's client privilege has been waived.
Christensen is to begin a fourth day of direct examination on Monday.
During Thursday's testimony, he described how, starting in 2000, he was caught in an acrimonious conflict between Astor and Marshall over the disposition of her Cove End estate in Maine.
He related how during the summer of 2000 Astor had grown close to the wife and children of Marshall's son, Philip, during a visit to Cove End and had decided she wanted "to do something" for the family.
About six months later, Christensen testified, Astor decided, after he had sketched out various options, that she wanted to leave the entire Maine estate, valued at $5.5 million, to Philip but allow Marshall to possess it during his lifetime.
Christensen also described Marshall as being "strongly opposed" to the plan, recalling that on several occasions he had said he did not want his son "breathing down my neck, waiting for me to die."
The attorney also said Marshall pressed both "me and his mother" not to adopt the plan.
In fact, the plan was not adopted when Christensen drew up Astor's next will, which was executed on Jan. 30, 2002. Instead the will contained precatory language that Astor would like Marshall to give the property to Philip.
Christensen said he and the mother and son had gone "round and round" on the issues for months, and in order to bring "peace" to the family he suggested that Astor take up Marshall's assurance "to do right by Philip" in his will.
In explaining his recommendation, Christensen testified that over the years, as Astor had grown "older and more frail," she became increasingly emotionally dependent" on Marshall, looked to him for guidance and participation in her thought processes.
"She did not want to lose him and wanted to keep him happy," Christensen testified.
Marshall had managed Astor's assets under a power of attorney since the 1970s.
Christensen said that before Astor signed the will on Jan. 30, 2002, he explained to her that Marshall was not legally obligated to leave Cove End to Philip Marshall.
"She wasn't happy about it," Christensen said, but she said 'OK.'"
Assistant District Attorney Elizabeth Loewy questioned this account, asking Christensen whether he would do "what Anthony Marshall wished."
Christensen firmly responded that he would "do what Ms. Astor wanted."
Loewy, questioning the adequacy of Christensen's explanation to Astor, asked whether he had explained to his client that "Philip had no right" to the property "if there was trouble" with Philip.
When Christensen said he would not put it that "harshly," Loewy asked if, "in effect," he had said that Marshall had "promised" to give the property to Philip. Christensen accepted that characterization.
CAUGHT IN CONTRADICTION
With the prosecution contending that Christensen was catering to Marshall's interests, not Astor's, Loewy developed some chinks in his credibility.
Christensen stumbled Thursday when Loewy questioned him whether he was aware that 18 months before he explained the will change regarding Cove End to Astor, she had been diagnosed as having second stage Alzheimer's.
Christensen testified that he "didn't know it was serious."
Loewy immediately challenged him, saying that only the day before he had said that second stage was "serious." When Christensen said he did not recall saying that, Loewy showed him a page of the transcript from Wednesday's testimony.
With a shrug, Christensen acknowledged that the transcript reflected Loewy's recollection.
Also on Wednesday, Loewy closely examined Christensen about the Alzheimer's diagnosis by Astor's doctor in December 2000. The attorney was queried on whether he had learned of Astor's seriously compromised condition as described in the doctor's report and Marshall's letter to the doctor, Howard Fillit, a specialist in geriatrics.
At one point, Loewy referred to the term "delusional," which Marshall had used in his letter to Fillit.
Christensen responded that he could not recall the details of conversations with either Marshall or Fillit about Astor's condition.
Asked if he would have remembered that Marshall had used the word "delusional," Christensen said he would have.
