(The American Lawyer)
"At thirteen she inherited a $100 million tobacco fortune," exclaims the breathless back cover copy of The Richest Girl in the World, Stephanie Mansfield’s 1992 biography of Duke. "By the time she was thirty, she’d lavished millions on her lovers and husbands, ranging from a gold-digging sexual athlete to a member of British Parliament, from Hawaiian beachboys to Hollywood starts."
Duke, the notoriously eccentric daughter of American Tobacco Company tycoon J.B. Duke, led the life of the fabulously rich. And depending on her mood or the season, she spent her time shuttling among Beverly Hills, Newport, Rhode Island; and Shangri-La" and "Duke Farms," her Hawaiian and New Jersey estates.
The twice-divorced, childless Duke displayed some wandering spirit in choosing a caretaker for her fortune. After 1987, when she discarded her previous will to name her soon-to-be adopted daughter – the then-33-year-old Chandi Heffner – as her primary executor, there came a quick succession of codicils and wills. In March 1991, after a bitter falling-out with Duke, Heffner was replaced as executor by Duke physician and vitamin guru Harry Demopoulos. Demopoulos was ousted eight months later by Duke’s then-accountant, who in turn was bumped by three new co-executors – Duke’s butler, Lafferty; her half-nephew Walker Inman, Jr.; and The Bank of New York – in early 1992.
The dizzying changes in Duke’s wills were a high stakes game of musical chairs, given the hundreds of thousands of dollars in fees her executors would earn, not to mention the enormous power they would have in naming trustees to Duke’s foundations and in meting out her fortune.
The game, however, finally ended on April 5, 1993, with what would become Duke’s final will, drafted by Katten Muchin partner William Doyle. Both the bank and Duke’s half-nephew Inman were dumped as co-executors. Bernard Lafferty, Duke’s ponytailed Irish-born butler, walked away with nearly absolute control over her legacy.
Did Duke’s attending physician, for instance, increase her dose of morphine even though he now admits she wasn’t in pain? Why was Duke’s lawyer, Katten Muchin trusts and estate partner Doyle, at her bedside when she died? Did Doyle, as a former Duke nurse has alleged, disappear with Duke’s medical records shortly after her death?
Demopoulos has been relentlessly pursuing these and other questions related to Duke’s October 1993 demise. He has hired three law firms – New York’s Simpson Thacher & Bartlett, Newark’s McCarter & English and Los Angeles’ Howarth & Smith – and a private investigative agency in his fight to prove Duke’s will was a sham.
Katten Muchin has responded in kind, bringing in New York’s Wilkie Farr & Gallagher; Roseland, New Jersey’s Stern & Greenberg; New York’s Carter, Ledyard & Milburn; Rochester’s Nixon, Hargrave, Devans & Doyle. "They’re trying to hire every lawyer in America with estate money," declares Manhatten solo practitioner Raymond Dowd, who is representing the former chef and housekeeper in their contracts claim. "This is the lawyers’ full employment act."
There is no denying, however, that Katten Muchin, as both counsel and a defendant, may have the most to lose of any of the law firms involved in the snarl of Duke litigation. As Demopoulos lawyer Don Howarth puts it, Katten Muchin "is up to their hips" in trouble.
Doyle’s partner Croll, who was present when Duke signed the two March codicils, says he also remembers thinking that Duke was "very much with it."
"She was sharp and had a sense of humor," Croll now says. A distinctly different impression, however, comes across in medical records obtained by lawyers for former Duke executor Demopoulos. A March 12 report by pulmonologist Dr. Robert Wolfe, for instance, notes that Duke on admission to Cedars-Sinai February 25 "had poor mental status with confusion and lethargy." The report goes on to state that an MRI brain scan "showed evidence of cortical atrophy" (degeneration of a portion of the brain) and notes that Duke neurologist Dr. Charles Espy "felt that her abnormal mental status was possibly related to a toxic metabolic encephalopathy" (blood poisoning that damages the brain).
One explanation for the discrepancy in the signatures is that Duke, at least according to a July 1993 letter from physical therapist Ketty Lawrence to Kivowitz, had suffered several strokes during March, the very time she was executing the will documents. Demopoulos lawyer Howarth contends that this letter and other medical reports prove that Duke could not have been of "sound mind and memory" – as Katten Muchin’s Doyle swore in a 1994 affidavit.
Moreover, in papers filed by Howarth in New York surrogate’s court, Demopoulos alleges that "Lafferty and his accomplices" tried to hide this fact by attempting to "sanitize" Duke’s medical records. As proof, they point out that Kivowitz, Duke’s attending physician and witness to her April 1993 will, has admitted in depositions that he was aware that Glassman, Duke’s plastic surgeon, had temporarily removed – and later returned – part of her neurologist’s reports.
"It was clear to everyone that this was a dying person," stated Kivowitz in a January deposition with Howarth, the lawyer for former Duke executor Demopoulos, "and dying because of ... a long hospitalization that was – was punctuated by an extended period of respiratory failure."
Howarth, in questioning Kivowitz, though, drove home the point that Duke’s discharge records from Cedars-Sinai make no explicit reference to any "terminal" prognosis. That discharge summary, written by Kivowitz, states: "After this very long hospital course, the patient was felt to be reasonably suited for transfer and home care, and essentially a hospital situation was established at the home."
Howarth: Does it indicate that she was terminal or being sent home to die?
Kivowitz: It does not specify that she was being sent home to die.
Howarth: Does it say that she was terminal or was in critical condition when she was being sent home?
Kivowitz: I think it [implies] quite clearly that she was in a critical situation . . . and this is again a – certainly an understatement of her situation . . .
Howarth: I am asking you now a question about what the records that were made at the time say, Dr. Kivowitz. They don’t say "critical condition" or "terminal," do they?
Kivowitz: There is no reference to "critical condition" or "terminal." However, critical condition is inferred . . . [and] it is my contention and my testimony that she was in critical condition at the time she was sent home.
Howarth notes that that testimony doesn’t square with a report written by two pulmonary specialists after a September 15 consultation with Duke. Among their recommendations was a note to "continue aggressive measures to get patient out of bed, increasing activity level for rehabilitation."
When investigators "interview all the necessary people" they will "conclude that no crime was committed," claims Katten Muchin’s Weitzman. He dismisses the allegations as nothing more that "a straight squeeze to try to get money out of [Duke’s] estate. Ultimately, this is all going to go away."
Demopoulos lawyer Rodney Houghton of McCarter & English counters that Katten Muchin’s efforts to appeal the surrogate’s court’s investigation are a sure sign that the firm is worried. And if he and other Demopoulos lawyers hope for a fat settlement, they aren’t letting on. "I would be reluctant to crawl in bed with them," asserts Demopoulos lawyer Howarth.