Two of New York’s top art lawyers are leaving their large New York firm and creating a new boutique one, in the same offices. Larry Kaye and Howard Spiegler, who built the Art Law Group at Herrick Feinstein in New York, have created the firm Kaye Spiegler PLLC, which will represent clients in all aspects of art law. “We’re going to focus solely on art law matters,” says Kaye, who has practiced at Herrick for more than 30 years alongside his colleague Spiegler.
Kaye Spiegler will still operate out of Herrick’s Manhattan suites, at the same desks, with the larger firm providing administrative and technical support. And the two firms will serve as co-counsel for each other when needed, the lawyers add.
Then why the split? It is mostly about risk and independence, they say. “Particularly with respect to matters that we would take on contingency, we’re much less risk-averse than our previous firm would be,” Spiegler says. In contingency cases, a client will only pay legal fees if their suit is successful, with the lawyer or firm taking a percentage of any payout. “Nobody can assess art law matters better than us. And we can obtain litigation financing to take on more contingency cases than we would have been able to take on as part of the larger firm.”
Litigation finance firms fund claims which law firms are wary of representing on contingency. They share the rewards if a claim wins. Common in patent cases, litigation financing is now moving into art restitution cases where claimants often lack the funds to pay legal fees on disputes that can take many years to resolve.
That new approach “has been developing over the years,” Kaye says. “We’ve wanted to take on more contingencies that are high-risk, and Herrick’s been averse to that because they’re a big firm and they mainly work on a fee basis. We want to take on the risk, so it makes more sense for us to be independent.”
“It’s friendly break-out,” Spiegler stresses. “Herrick is a known quantity because of its art law group, which is us.”
Herrick's art law practice—led by Kaye and Spiegler, with their mentor Harry Rand—built its reputation on cases such as Kunstsammlungen zu Weimar v. Elicofon, in which the firm successfully represented a museum in what was then East Germany in recovering two paintings by Albrecht Dürer in Brooklyn. An American soldier bought the pictures in 1946, not knowing that they were stolen in Germany at the end of the Second World War. And in 2010, the firm, working with the US Attorney for the Southern District of New York, reached a $19m settlement with the Rudolf Leopold Foundation of Vienna, Austria, over Portrait of Wally, Egon Schiele’s 1912 painting of his red-haired girlfriend, which a Jewish art dealer handed over to the Nazi who seized control of her gallery in 1939. The picture was found in 1997 in New York, on loan to the Museum of Modern Art, and the Leopold Foundation settled after more than a decade of litigation.
Herrick has also represented Turkey and Egypt in recovery cases. In the Netherlands, Herrick helped the US-based heirs of the dealer Jacques Goudstikker recover 200 works that had been in the Dutch national collection, and the firm represented the heirs of the Russian painter Kazimir Malevich in claims against the Stedelijk Museum in Amsterdam and the Museum of Modern Art in New York.
Kaye and Spiegler acknowledge that art law is now a crowded field. “We think we need to be more competitive, and we’re going to be, through this smaller, more focused firm,” Kaye says. The new firm will have a total of four lawyers, all from Herrick.
Restitution of art looted during the Nazi Era will still be a mainstay for Kaye Spiegler, despite concern that this field may be shrinking. “Experts say there are still 100,000 pieces out there that were looted, and have not been recovered. We get calls all the time, so I think that area is going to continue,” Spiegler says.
Other potential clients are collectors who might be facing claims. “We’re getting calls from possessors [of art], who want to know what their rights and obligations are. We can advise them, there’s no conflict,” Kaye says.
“We have had a very strong practice, which wouldn’t be known to the public, in advising museums and others who may be interested in acquiring work, and seeking advice as to what the risks are. Often they turn to us because we know better than anybody, since we’ve been on the other side so much,” Spiegler notes, stressing that the new firm’s litigation work will still be on behalf of claimants.
Another growth area could be the belated prosecution of art crimes. “For many years, the art world has been lucky in that the IRS and other regulatory bodies haven’t focused on the problem of potential money laundering and other problems that might arise from the art market. There’s already legislation dealing with antiquities dealers. There’s definitely going to be more scrutiny in that area,” Spiegler says.
Kaye adds: “We’ve worked with Herrick’s white collar criminal department before, and that will continue.”