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Three months into the criminal trial of socialite Brooke Astor’s son, Anthony Marshall, and the lawyer he hired who allegedly helped him loot his mother’s estate, the presiding judge has cleared the way for a trusts and estate expert to testify for the prosecution. Alexander D. Forger, the former chairman of Milbank, Tweed, Hadley & McCloy, can give expert testimony on the “patterns” of Astor’s wills and codicils and the “professional practice standards” for trusts and estates attorneys, Acting Supreme Court Justice A. Kirke Bartley Jr. ruled Wednesday from the bench. However, the judge barred Forger from testifying on issues that could prove critical to the prosecution’s case: whether Henry Christensen III, who represented Astor for more than 20 years, and G. Warren Whitaker, the attorney who drafted a hotly disputed Jan. 12, 2004, codicil to the socialite’s 2002 will, violated ethical standards. Read the submissions of the prosecution and Marshall regarding Forger’s appearance. The January 2004 codicil gave Marshall control over a $60 million piece of his mother’s estate, which would have otherwise gone to charities. Bartley also said that Forger, a past president of the New York State Bar Association, could not opine on the conduct of lawyer Francis X. Morrissey, Marshall’s co-defendant, or testify as to whether the codicil was designed to “fool” Astor. In an interview, Forger, who will testify pro bono, said, “I think every lawyer has an obligation to respond when called upon to render public service.” He said the prosecution approached him about testifying in February, but he declined to comment on the potential impact of his testimony. A graduate of Yale Law School, Forger is known for his involvement in several high-profile will contests. He served as the co-executor of the estate of Jacqueline Kennedy Onassis and represented the children in the highly publicized battle over the estate of J. Seward Johnson Sr., son of the founder of Johnson & Johnson. Forger now works at Manhattan-based Oak Spring Farms, which manages the financial affairs and property of one of his former clients, Rachel Lambert Mellon, the widow of philanthropist and racehorse owner Paul Mellon. When Astor died in 2007 at the age of 105, she left behind an estate valued at $132 million and a residual estate worth $60 million. The prosecution claims Marshall, 85, and Morrissey, 66, took advantage of Astor’s deteriorated mental state to gain control of the residual estate. The government has called both Christensen, a former Sullivan & Cromwell lawyer who oversaw Astor’s execution of a December 2003 codicil, and Whitaker, who drafted the January 2004 codicil. Forger’s testimony may help the jury evaluate their testimony. The prosecution claims Christensen, who represented Marshall in his divorce from his second wife when he began representing Astor, labored under a conflict of interest. It also contends the codicil Whitaker oversaw was part of a conspiracy to defraud Astor. Neither lawyer has been charged with a crime. Last month, Marshall’s defense attorneys urged Justice Bartley to reject a bid by the prosecution to call Forger as an expert witness to testify on a number of issues, including the “patterns” reflected by Astor’s wills and codicils, whether Christensen and Whitaker violated professional ethics, and whether the drafting style of the second codicil was meant to dupe Astor. Astor’s wills and codicils are “written in plain English,” and “it is undisputed that Mr. Forger has no knowledge” of her testamentary thinking, the defense wrote in a memorandum to preclude Forger’s testimony. And if the prosecution identifies any ambiguity in a provision of a will or codicil, “either Mr. Christensen or Mr. Whitaker is perfectly capable of explicating it,” the memorandum states. But the prosecution, having “cloaked Mr. Forger with the mantle of ‘expert,’” nonetheless wants to “parade” him before the jury, according to the defense. And since neither Christensen nor Whitaker is on trial for malpractice, Forger’s testimony would be irrelevant, “confusing” and “highly prejudicial,” the defense argued. Moreover, if the language of the January 2004 codicil needs interpreting, its drafter, Whitaker, “is in the best position to do so,” Marshall’s lawyers wrote. ‘DISINTERESTED TESTIMONY’ But the prosecution shot back that Forger could “shed light on the professional standards of conduct for trusts and estates attorneys and the highly technical language” employed in Astor’s wills and codicils. By offering “disinterested testimony” on ethical obligations and professional standards, Forger will aid jurors in evaluating whether the “attorneys who (ostensibly) represented Brooke Astor in late 2003 and early 2004 failed to follow the generally accepted practices of their profession,” Manhattan Assistant District Attorney Sally Pritchard wrote in a June 24 letter to Bartley. In its opening statement, the prosecution wrote, the defense called Christensen and Whitaker “lions of the trusts and estate bar,” who had met their professional obligations to Astor. But now the defense seeks to block Forger “from giving the jury objective standards to assess” their performance, prosecutors argued. This “sword-and-shield approach should be rejected,” the prosecution urged. Marshall’s attorney, Kenneth P. Hafetz of Hafetz & Necheles, declined to comment. Christensen, of McDermott Will & Emery, was not available for comment. Whitaker, of Day Pitney, did not return a call for comment. Thomas P. Puccio of the Law Offices of Thomas P. Puccio, who represents Morrissey, did not return a call for comment. A spokeswoman for the Manhattan district attorney’s office declined to comment.

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