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Reflections on Estate of Rothko: the Role of the Legal Advisor in Relation to the Artist

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Reflections on Estate of Rothko: the Role of the Legal Advisor in Relation to the Artist Cleveland State Law Review Volume 26 Issue 4 Symposium: Art and Law Article 9 1977 Reflections on Estate of Rothko: The Role of the Legal Advisor in Relation to the Artist Gustave Harrow Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Entertainment, Arts, and Sports Law Commons, Estates and Trusts Commons, and the Legal Ethics and Professional Responsibility Commons How does access to this work benefit ou?y Let us know! Recommended Citation Gustave Harrow, Reflections on Estate of Rothko: The Role of the Legal Advisor in Relation ot the Artist, 26 Clev. St. L. Rev. 573 (1977) available at https://engagedscholarship.csuohio.edu/clevstlrev/vol26/iss4/9 This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. REFLECTIONS ON ESTATE OF ROTHKO: THE ROLE OF THE LEGAL ADVISOR IN RELATION TO THE ARTIST GUSTAVE HARROW* LONG PRIOR TO HIS TRAcIC end in 1970, Mark Rothko wrote: A picture lives by companionship, expanding and quickening in the eyes of the sensitive observer. It dies by the same token. It is, therefore, a risky and unfeeling act to send it out into the world. How often it must be permanently impaired by the eyes of the vulgar and cruelty of the impotent who would extend their affliction universally!1 Perhaps more than any acclaimed modern artist, Rothko was in- tensely concerned and preoccupied with the ultimate fate of his works. Despite artistic and monetary success, broad recognition, and affiliation with the world's then most flourishing modern art gallery, Rothko's ardent desires for his art were not honored following his death. Even during life his feelings of loss of control over his treasured oeuvre may well have contributed to his suicide. Rothko tried to keep his collection out of the "market-place," to maintain certain-important works in groups, and to have his art located ultimately in the environments in which it would be understood. But after his death docu- ments emerged which disclosed an absence of minimal legal safeguards which would ensure implementation of his artistic aspirations. Some of these basic legal documents, produced in the course of the extraordinarily compli- cated and protracted proceedings in Estate of Rothko,2 raise serious questions concerning relationships between legal advisors and artists. Rothko's intense concern about sending works "out into the world" reflects many artists' reluctance to enter into the business and legal "worlds" of their art. Yet without a basic understanding of legal and financial matters as they affect him, - B.S.S., 1951, City College of New York; M.A., 1953, New School for Social Research; J.D., 1957, Yale University; Member, New York Bar; Assistant Attorney General for the State of New York. Mr. Harrow conducted the litigation in Estate of Rothko, on behalf of the Attorney General for the State of New York. The opinions expressed are solely those of the author. The author has recently published a further analysis of the decision of the New York Court of Appeals in Estate of Rothko, discussing the court's treatment of the legal principles. Harrow, The FinalWord in the Rothko Case:Salient Legal Holdings of the Court of Appeals, 4 Art and the Law (1978). 1 M. ROTHKO, TIGER'S EYE, no. 2 (1947). 2 The disposition of the Rothko litigation began with the decision of a New York Surrogate's Court on December 18, 1975. Estate of Rothko, 84 Misc. 2d 830,379 N.Y.S.2d 923 (Sur. Ct. 1975). The Supreme Court, Appellate Division affirmed in March, 1977. Will of Rothko, 56 App. Div. 2d 499,392 N.Y.S.2d 870. The New York Court of Appeals, the State's highest court, affirmed on November 22, 1977. In re Estate of Rothko, 43 N.Y.2d 305, 401 N.Y.S.2d 449 (1977). The trial, which began on February 14, 1974, encompassed 89 days and resulted in approxi- mately 15,000 pages of trial transcript, 5,000 pages of pre-trial dispositions, and some 800 Published by documents.EngagedScholarship@CSU, 1977 1 CLEVELAND STATE LAW REVIEW [Vol. 26: 573 the artist may encounter not only unnecessary economic problems but the defeat of central aesthetic goals. Estate of Rothko reveals the type of responsibility a legal advisor to an artist ought to assume if he is to render a service designed to advance not only his client's monetary interests, but the integrity of his art and his artistic aspirations as well. The Issues in Estate of Rothko At the time of his death Rothko was one of the foremost exponents of American Abstract Expressionism, a leading school of art "then recognized as such throughout the art world."3 A statement attributed to Professor Meyer Schapiro, an expert witness at the trial who was regarded "as one of the foremost art historians in the field of modern art,"4 concluded that "at the time of his death, Rothko was regarded by many artists and critics as an old master, a painter who had established himself firmly as one of the three or four outstanding American artists, and perhaps one of the half dozen greatest 5 living artists anywhere in the world." The issues in Rothko involved allegations that a plan set in motion by friends of Rothko and his art dealer was designed to effectively acquire the vast valuable collection of art owned by the artist at his death. The petitioners in this proceeding, Rothko's daughter and the Attorney General of the State of New York, argued that this plan was conceived by Francis K. Lloyd, Rothko's international art dealer who controlled all operations of the commercially successful Marlborough companies, and Bernard J. Reis, who had been Rothko's accountant and advisor in legal matters and who became one of his three executors. 6 Reis, who had advised many artist: and owned hundreds of works of art, was director, secretary, and treasurer of Marlbo- 7 rough's New York gallery. When Rothko died he owned more than 800 of his own works," which consisted of the bulk of the paintings he had created during his lifetime. Within three months of his death his executors and Lloyd entered into contracts for the disposition of all of the works in the residue of his estate - 798 paintings. 9 In addition to Reis, the friends Rothko appointed as executors were Theodoros Stamos, an artist who shortly after the 1970 transactions entered into his own contract with Marlborough, and Morton Levine, a professor of anthropology. The daughter of the decedent, Kate Rothko, then not yet twenty-one years of age, caused a proceeding to be commenced in Surrogate's Court, New York County in November, 1971.10 Her petition sought a rescission of the 3 Estate of Rothko, 84 Misc. 2d 830, 834, 379 N.Y.S.2d 923, 932 (1975). 4 Id. at 861, 379 N.Y.S.2d at 955. 5 Id. at 862, 379 N.Y.S.2d at 956. 6 Id. at 836-37, 379 N.Y.S.2d at 932-33. See Attorney General's Answering Brief as Respond- ent in the New York Court of Appeals, at 4-5, Inre Estate of Rothko, 43 N.Y.2d 305,401 N.Y.S.2d 449(1975). 7 84 Misc. 2d at 832,379 N.Y.S.2d at 934. Id. at 834,379 N.Y.S.2d at 932. 9 Id. at 836, 379 N.Y.S.2d at 936. 10 See Record on Appeal at AI01, In re Estate of Rothko, 43 N.Y.2d 305, 401 N.Y.S.2d 449 https://engagedscholarship.csuohio.edu/clevstlrev/vol26/iss4/9(1975). 2 19771 REFLECTIONS ON ESTATE OF ROTHKO contracts disposing of Rothko's art, and removal of the executors on grounds of unfair terms in the contracts, conflicts of interests, disloyalty, and wasting of assets of the estate." Shortly after the petition on behalf of Kate Rothko was filed, the Attorney General of New York appeared in the proceeding on behalf of the public interest in charitable dispositions - "the ultimate charitable beneficiaries" of the principal beneficiary, the Mark Rothko Foundation. Thereafter, on June 5, 1972, the Attorney General filed his own separately stated cross-petition.12 He charged that the agreements constitut- ed "self-dealing and violations of fiduciary trust," a "fraud upon the estate" in that they realized "only a fraction of their value," and "a total disregard of the beneficiaries of the Foundation." The petitioners charged specifically that Lloyd and Reis contemplated the immediate outright sale of 100 works for a fraction of their value, and that they then planned to acquire the balance of the select works by placing the entire collection in Lloyd's and Reis' control 13 through a "consignment" to Marlborough. In May, 1970, the executors sold 100 canvases selected by Lloyd for $1,800,000, payable over twelve years without interest to Marlborough A. G., a Liechtenstein affiliate. They also consigned the balance of the works, 698 paintings, to Marlborough Gallery, Inc., the New York gallery. The execu- tors thereby retained title but gave Lloyd complete control over these consigned works for an irrevocable twelve year period, at a commission rate of fifty percent for Marlborough, or forty percent if Lloyd sold to another dealer. 4 As for the 100 sold outright, it was claimed that nothing in effect was to be paid since, as was manifest to Reis' and Lloyd's shrewd art acumen, this purchase price meant that payment could be made through sales of a relatively few of the paintings so acquired.' 5 In fact, after waiting four months from the time he acquired ownership in May, 1970, within a period of three months Lloyd proceeded to resell twelve of the 100 to collectors at six to ten times the amount he undertook to pay.' 6 As to the consigned paintings, the petitioners claimed that by failing to provide for itemized minimum resale prices for specific paintings in the consignment agreement, and thereafter avoiding presentation of inventories and accounts of resales, Reis and Lloyd with the anticipated continuing acquiescense of the other executors could furtively siphon off through Marlborough's international complex the best and most salable of the paint- ings remaining after sale of the 100.
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