|Last Updated: Apr 26th, 2007 - 09:55:10
With so many jerks working as attorneys in New York City, you'd think there would be no way to determine who's the single biggest pain in the ass. You could be wrong. The winner (or loser) is arguably Kenneth Heller.
You can't count the number of crooks, shysters, or idiots among the city's 74,000 lawyers. But Kenny Heller was disbarred for simply being obnoxious. After 50 years of heaping abuse on everyone within earshot and hurling accusations of conspiracies, "favoritism," and "cronyism" at countless judges and lawyers, the 77-year-old Heller has earned this distinction: No other lawyer in the city but Heller, according to records of his disciplinary hearing, has been ousted for "obstructive and offensive behavior which did not involve fraud or deception."
Heller was disbarred for basically "being an asshole," as one adversary puts it. And in their profession, the rival adds, "that takes some doing."
But even though he lost his law license nearly three years ago, Heller continues to wreak havoc on the judiciary.
Just four weeks ago, for instance, he was tossed into the Baxter Street jail in Manhattan for a night for refusing to turn over his files from the negligent-death lawsuit of a Brooklyn Navy Yard worker. Heller had won a $25 million verdict for the worker's widow in 1999. It should have been his crowning achievement. Instead, the case was overturned on appeal, a new trial was ordered, and eventually the widow obtained new lawyers. But Heller won't give up the files to them.
Sitting in the back of the Bronx courtroom the next day, Heller looked like just another elderly trial buff, wearing high-waisted, suspendered khaki pants and sneakers with Velcro straps. He seemed to be only half-listening as his lawyer, Richard Reisch, advised him how to stay out of jail.
"Just be nice—'Yes, your honor. Thank you, your honor. Thank you, your honor.' Let me do the talking," Reisch told him.
Then the judge, Howard Silver, walked by. "Kiss my tuchis!" Heller spat at him. A few minutes later, Jacoby & Meyers lawyer Michael Feldman, who took over the negligent-death lawsuit from Heller, entered the courtroom. Heller's angry greeting? "Schmuck!"
During the hearing, Heller blurted out at one point, "I have an absolute right to intervene," before his lawyer shushed him. By "intervene," Heller meant re-try the case, his case, the last big one of his life. The only problem is that he's disbarred and can't try any case.
The judge wound up fining Heller $10,000 and sentencing him to 30 days in jail. Heller's free for now while he's appealing; a decision on his fate could come later this month. At his advanced age and with only one kidney, a bum hip, and what he says is asbestosis, Heller says a month in jail "might kill me." And true to his conspiratorial view of the world, he adds, "That's what they're hoping. But I won't shut my mouth."
OK, so he curses at judges and lawyers, and they punish him. But Heller doesn't shut his mouth even with his own staff. During a recent visit to his office, he introduced one worker as "Dum-dum." And he barked at Susan Harmon, an attorney who has been with him 26 years, "Get your brain working! The minute you walk in the door, your brain goes out to lunch." Heller himself is no fool. One Bronx jurist has described him as a "pre-eminent maritime attorney," and Heller estimates that over his career he has obtained verdicts totaling more than $70 million.
Gruffly funny and capable of great charm, Heller has a game face when it comes to the law and his work.
"Personally, I find him abrasive, angry, tough, fierce, and frightening," says attorney Ron Kuby. "You know, the qualities you usually want in a lawyer."
Kuby should know. His mentor was the legendarily fierce William Kunstler. Doing a dead-on imitation of Heller's gravelly growl, Kuby says, "You know what we used to call him? We used to call him Kenny Yeller!"
Kuby knows Heller as a "friend of Bill," though Heller is the polar opposite politically of the late civil-liberties advocate.
"Kenny Heller is very much an old- old-school lawyer," Kuby says. "He doesn't follow the Marquis de Queensbury rules. In fact, he doesn't follow any rules.
"All the things people cite as his faults are qualities that allowed him to be as successful as he was at a time when it was difficult for any plaintiffs' lawyer to win anything for their clients. Back then the system was totally corrupt. He grew up fighting a corrupt system and he was as tough and ferocious as he had to be to secure justice for his clients. Times have changed since then, but Kenny hasn't."
As the Departmental Disciplinary Committee decided his career fate, Heller remained defiant to the end, saying the judges, experts, and opposing counsels were the aggressors, not him.
"I agree I have a short fuse and I get aggravated," he told the committee. "We all do get aggravated at times. But I never stood for somebody threatening me with violence, I never stood. I mean somebody spat in my face, I knocked him cold. I think you'd do it too."
Told last week that people have described him as an "asshole," Heller says, "Who said that? He may be queer. Tell that person, 'Heller says you may be queer.' "
When Heller is asked to assess his combative style, he zooms in on another part of the anatomy. "Everyone wants to walk around without testicles," he says. "If you're going to give that up, what the hell are you worth? Should you go through life cowering and cringing and keeping your mouth shut? Then what are you?"
Go too far in the other direction, though, and you wind up as someone who won't let go of anything. And Heller has paid for that. After 50 years of unleashing his wrath verbally or by filing misconduct complaints or lawsuits against anyone who got in his way—judges, attorneys, expert witnesses, district attorneys, and even the governor—Heller was left pleading for mercy from those to whom he had never shown any. After claiming that people were out to get him, they finally did.
Don't think that Kenny Heller's disbarment has kept him out of court. Even though his law license was taken nearly three years ago, four full-time employees and attorney Harmon still work for Heller in his cluttered office on the second floor of 299 Broadway. Is he mean to his workers, mean enough that an opposing attorney once begged a judge to order Heller to stop screaming at his own associate during a court hearing? Heller brings up Harmon's name when asked about that and says, "She's working here 27 years. She retired once and she came back. I hate to say what I gave her when she retired, I gave her $250,000 for her retirement—cash. What do you call that? Am I a nice guy or what?"
Harmon, in turn, sticks up for her tough-talking boss: "He's disbarred because he stands up against these big corporations that stand to lose a lot of money if Mr. Heller wins these cases."
Never having had kids, not close to his sisters, and with his Brazilian wife spending much of the time in her home country, Heller has made his work his life. He boasts that he works seven days a week, 12 hours a day, though he hasn't taken on a new client in 10 years.
Now that he can't practice, he's—what else?—frustrated. "I didn't steal, I didn't desert any clients, I didn't do anything wrong," he says. "I got disbarred because I keep talking about how crooked they [the judges] are."
But the time he spends in court these days isn't just tilting at corporate windmills. It's all aftermath stuff: He's mostly trying to procure unpaid fees and judgments, and that consumes all his time, he claims. It's possible. Aside from the cases in which he represented others, Heller is listed as a plaintiff on more than 100 Supreme Court lawsuits just in Manhattan.
He's apparently been working hard his entire life. A balding, stocky man with a workingman's thick forearms and hands, Heller was born in Sheepshead Bay three days before the "Black Tuesday" stock market crash and grew up working on fishing trawlers.
His father, an immigrant from Austria-Hungary, owned bars and diners, including the now famous Empire Diner. His mother, an immigrant from Poland, lost 300 friends and relatives in the Holocaust, he says.
Heller paints a colorful picture of his life, very little of which is verifiable at this point. When the family moved to Chelsea, Heller helped out in his father's rough-and-tumble saloons. As he tells it, he used a fake identity at age 14 to join the Merchant Marines during World War II. Then he went to Palestine and worked for the militant Jewish group Irgun. "I collected explosives to blow up the British," he says. Heller was "chased out" of Palestine in 1947, he says, and came home and attended Brooklyn College and the University of Miami. In 1950, he says, he entered New York Law School.
After graduating from law school, Heller joined the Army. His first assignment, he says, was running a boat that retrieved shells test-fired into Chesapeake Bay from a short-lived weapon called the Atomic Cannon. Eventually, Heller served overseas during the Korean War but was discharged after shattering his left hip when he fell off a tanker.
On October 19, 1955, at the age of 25, he was admitted to the bar. He spent the following decades stalking New York's courtrooms. While working cases in South America, he says, he helped track down Nazis—Heller proudly shows off a letter from another attorney that says a general in the Israeli army called him "a bit of a folk hero in the state of Israel."
Here in the city, he has no such reputation in some quarters.
The written decision in his disbarment case is famous among the city's lawyers for its harshness. The disciplinary committee that investigated his behavior recommended a two-year suspension, but the Appellate Division went far beyond that, saying:
"In light of the cumulative evidence of respondent's 24-year history of sanctions, his perverse and persistent refusal to accept adverse rulings, reflective of an utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included screaming at, threatening and disparaging judges, adversaries and experts, intentionally defying court rulings, and disrupting and thwarting proper legal process through both physical and verbal aggression, we are of the opinion that the appropriate sanction here is disbarment."
This didn't come out of nowhere. Between 1984 and 1997 Heller had been sanctioned five times by courts. Here are few episodes from his hellacious career:
In one case, a judge ordered in 1996 that he forfeit nearly $600,000 in attorney fees because he had refused to hand over a $1.7 million settlement to a client whose husband was killed in a plane crash until she ponied up $121,000 for a disputed real estate loan he claimed to have made.
In 1993, an ex-girlfriend accused him of rape, but the Manhattan D.A. didn't pursue it after Heller had been arrested and initially charged with sexual abuse, according to court records. Heller turned around and twice sued the woman and her sister for false arrest, slander, libel (because the sister sent a note on a returned box of candy Heller sent, stating, "Due to the fact that you raped my sister, my mother will not be accepting gifts from you") and "conspiracy to defame and destroy [Heller's] reputation as an attorney." The first lawsuit sought $60 million from the ex-girlfriend and $40 million from her sister. The second lawsuit sought $400 million. The ex-girlfriend's attorney claimed the lawsuits were "designed solely to harass" and produced a letter Heller wrote to her stating that he would halt all legal action against her if she would agree to speak to him again. Years later, the cases were dropped.
Then there were the three cases that directly led to Heller's undoing. In one, Heller purposely dragged out, from November 1997 until February 1999, a lawsuit filed against him by an interior decorator. She had to appear in court 11 times before she finally collected the $1,700 he owed her.
In another, dating back to 1990, Heller slipped and fell, fracturing his elbow, when he stepped off an elevator in a Manhattan parking garage he says was owned by gangster Anthony "Tony Pro" Provenzano's famiy. During jury selection in May 1996, it was alleged, Heller inappropriately entered the juror pool room and spoke and joked with some of the potential jurors. While testifying, he gratuitously mentioned his Brazilian wife's ethnicity and spoke in Spanish, trying to curry favor with Hispanic jurors. When the jury awarded Heller $2.25 million, Provenzano's attorneys accused him of having told the jurors during his visits what their maximum insurance limit was, because the verdict, they said, matched it "to the penny." Despite denials from the jurors that this happened, the Appellate Division threw out the verdict and ordered a new trial.
Such tactics don't necessarily doom a lawyer. Behavior, however, can do it. Ed Hayes, the model for tough-guy lawyer Tommy Killian in The Bonfire of the Vanities, says of Heller, "If he was a little bit more affable, he could have been a major power in this city. . . . But he's not affable."
And that was proven in the aftermath of a 1971 helicopter crash during a Uruguayan air show. Eight people were killed, and many others were maimed. And that disaster caused numerous other collisions 30 years later in New York when Heller started defending victims and their relatives during depositions in what was known as the Stajano case. From the start, Heller was so pugnacious—he constantly objected, refused to allow his clients to answer questions, or answered them himself— that Judge Martin Schoenfeld eventually ordered him, "Keep quiet. I know it's difficult for you, but keep quiet. Walk out of the room, for Pete's sake." It didn't work. At the next deposition, Heller called the opposing attorney an "imbecile."
When Paul Nassar, a forensic psychiatrist hired by the opposition, tried to examine Heller's clients who were claiming post-traumatic stress disorder, Heller really lost it. Nassar says that at the first examination, he took Heller aside, as he does all attorneys, and told him, "You have the right to observe but I'd appreciate it if you'd be a fly on the wall."
He was more like a boil on Nassar's butt. Maybe it was Nassar's size (he's a big, burly ex–rugby pro), maybe Heller thought the shrink was an Arab, or maybe it was an act, but Heller went on the offensive. As Nassar recalls, "He said, 'You're not such a tough guy,' and he started to threaten me as if I challenged him . . . He said, 'Listen, I'm a tough Jew. I've taken bigger guys than you.' "
At subsequent examination dates, it only got worse. Heller called Nassar a "charlatan" six times in one session and then began calling him "Abdul Gamal," perhaps after former Egyptian president Gamal Abdel Nasser. The judge was forced to appoint a referee, Leslie Lowenstein, to oversee the remainder of the depositions. But Lowenstein could do little to control Heller. At one point, according to Lowenstein's own account, Heller picked up a chair and slammed it to the ground, causing a frightened Lowenstein to call for a court officer.
"It was just the most inappropriate behavior from an attorney that I ever experienced," says Nassar. "It's not even close."
In August 2001, with the depositions still ongoing, Lowenstein issued a report charging that Heller was intentionally trying to "delay and obfuscate discovery" and recommended that Schoenfeld sanction him for contempt and fine him $10,000. The judge agreed and advised Heller, "Put a handkerchief in your mouth."
Eventually, the Stajano case was dismissed by Justice Shirley Kornreich, earning her a spot high on Heller's conspiracy list.
"He's an Old Testament guy," says Ed Hayes. "He never forgets anything, never wants to give anything up."
One of Heller's attorneys, Steven Riker, puts it another way: "If he thinks the judge is stupid, he'll tell the judge he's stupid."
The case that finally grounded Kenny Heller in a city jail cell this year started with the grounding of an oil barge in December 1992. The ship, ST114, limped into the Brooklyn Navy Yard on December 16 of that year with a damaged hull.
The next morning, James Emanuel, a 47-year-old rigger, was told by his foreman to have a 50-foot-long, 6,000-pound gangway placed between the ship's deck and the dock.
As chemical engineer Thomas Gibson later testified, a crane lifted the gangway and began moving it toward the barge, with Emanuel riding on it. Gibson said that as one end of the gangway reached the barge's deck, he heard the captain, whose back was to the ship, yell out, "Tie up the gangway." But no one was on the barge to lash it off. The gangway bumped the barge's deck and shot out, sending a screaming Emanuel plummeting backward some 40 feet to the dock. Emanuel sustained massive injuries that left him a quadriplegic until his death on August 30, 1994.
After filing a lawsuit on August 1, 1995, on behalf of Emanuel's widow, Ruby, Heller turned down a $3 million settlement offer. He sued under maritime law, arguing that the barge was technically still in navigation. As such, the ship was supposed to be manned at all times by at least two crew members, which it was not. After a three-month trial in summer 1999, a jury awarded Emanuel's survivors a $25 million verdict. It was among Heller's greatest courtroom performances.
But the trial judge, Leland DeGrasse, found the amount excessive and reduced it to $7.6 million. Both sides appealed and the appellate court threw out even the reduced verdict in May 2004, ordering a new trial. The higher court ruled that the judge erred in allowing the jury to consider Heller's claim that maritime law governed the accident. After Heller was disbarred, Ruby Emanuel hired Jacoby & Meyers. "When we got the [first] verdict I was relieved and I was kind of glad it was over," she says. "I figured maybe now I can go on with my life and get some closure. That's mostly what I've been looking for. But since that time it's just delays and goes on and on and on. It's like an open wound."
Emanuel v. Sheridan Transportation Corp. et al. is heading into its third year in limbo, bouncing from judge to judge and from Manhattan to the Bronx. Everybody wants Heller to turn over the files. Any resolution of the case has also been delayed by Heller's attempt to get a judge to "fix," or guarantee, his past attorney fees and expenses at somewhere between $2 million and $12 million before he will hand over the 43 boxes of records.
Usually, a former attorney hands over his files to the new attorney and then both sign an agreement stating all attorney fees will be held in escrow until an agreement on fees is reached through either a judge or mediator.
In this case, Heller originally demanded $2 million for attorney fees and a third of any future award, plus reimbursement for $300,000 to $400,000 in expenses, even though he didn't provide receipts or other documentation. Later, Heller's fees increased sixfold to $12.1 million; he claimed he and his employees put in nine straight years of 40-hour weeks at what works out to $1,347 an hour. Michael Feldman, the Jacoby & Meyers attorney who is Heller's latest foil, says that in one instance Heller claimed to have put in for more than 24 hours in a single day. Feldman says another claim entailed Heller talking to James Emanuel on dates after the man had died. (Heller denies this and insists that he's done nothing wrong.)
In any event, says Feldman, it's impossible to fix attorney fees at this point because it's a contingency case that's worth "zero until it's retried."
The files, however, may be Heller's ace in the hole. Hill Betts & Nash, the law firm for the ship owners, had its offices in the World Trade Center, and the firm's case files were destroyed in the 9/11 attacks. Heller has the only complete set. Or does he?
Heller originally said he didn't want to give up his files because he didn't think Jacoby & Meyers was up to the task and will either lose at trial or settle for short money. "They're incompetent," Heller says. "I give them all my hard work to fuck it up?"
But in recent weeks, Heller has changed stories, claiming that the 43 boxes were destroyed when a friend's basement was flooded. A few weeks back, Jacoby & Meyers again tried to force the issue, petitioning Judge Silver for a search warrant of Heller's office. On March 20, nine deputies executed the warrant and "ripped from my office, Gestapo-style," Heller says, 12 boxes of files. But the boxes did not contain the right documents. Jacoby & Meyers came away "empty-handed," Feldman says.
There's nothing for the judge and attorneys in the Emanuel case to do now except see whether Heller will turn over the files or go back to jail for a longer term.
Don't count on seeing the files. When Heller emerged on February 27 from his night in jail, he looked none the worse for wear and proclaimed, "Didn't bother me. It was as good as some hotels I've stayed in."
And he doesn't seem likely to give up his tales of persecution. He's woven a history of his own life that revolves around age-old conspiracies sprinkled liberally throughout his flurry of court motions.
Back in law school more than 50 years ago, he says, he feuded with classmate Francis Timothy Murphy about the Jews' conversion of Palestine into Israel. The two almost came to blows, says Heller. (In one motion, he claimed to have punched Murphy.) As Heller tells it, it was his bad luck that Murphy was elected way back then to the Supreme Court and then spent two decades as a presiding appellate judge. Heller has claimed in motions that Murphy used his influence to sabotage Heller's big-money verdicts.
After Murphy, who declined to comment for this article, retired nearly a decade ago, Heller focused on new archenemies, including the state's chief judge, Judith Kaye, and Supreme Court judges Jacqueline Silbermann and Kornreich, who he insists in motions have acted with "favoritism and cronyism for the clients of my adversary or of Proskauer Rose LLP." Proskauer Rose, one of the biggest law firms in the city, has represented some of the companies Heller has sued over the years. Kaye's deceased husband was a partner there and Kornreich's husband is a current partner. In Heller's mind it all fits together.
Ed Hayes admits that in Heller's heyday, "the place was for sale," but thinks his friend is off base now. "Basically, right now," says Hayes, "we have an honest, competent judiciary."
Heller says that's bull, adding, "They're just better at hiding it now."
You won't convince Kenny Heller of that. He calls his current dispute over the files a "railroad job." His is the one true path. "Mr. Heller views his practice as a 'crusade' against corporations that would seek to take advantage of the poverty and illiteracy of many of his clients, who have all suffered severe injuries at sea or in airplane catastrophes," wrote his attorney Robert Sokolski in Heller's failed appeal of his disbarment. "Mr. Heller considers himself a sword and a shield."
Or maybe it's just a cloak. Nassar, the psychiatrist, believes Heller took on these types of cases and presented himself as a crusader as "a way to justify doing anything he wants to do."
Heller recently tried to persuade Ed Hayes to get involved in the Emanuel case on his behalf. But Hayes says he told him, "There's two things that you have to do for me to be your lawyer: Pay and do what I say. You're not going to do either, so find someone else."
And he says he also gave Heller some advice: "I said, 'Kenny, look, you're an older man, you've got money. If you have the records you've got to turn them over . . . they'll put you in jail and you won't survive it.' I told him, 'This is a death case for you. You're going to die for contempt.'"