Why Did the Attorney General Cave in Berkshire Museum Case? My Q&A with the Rockwells’ Lawyer

Those, like me, who were caught off-guard by the astonishing deal (now awaiting court validation) cut last month by the Berkshire Museum and Massachusetts Attorney General Maura Healey feel justifiably blindsided by the AG’s about-face. With scant explanation, she pivoted from a seemingly adversarial stance towards the museum’s deaccessions of the cream of its collection to acceptance of the shameful sell-offs, notwithstanding the fact that they would run afoul of professional standards and would violate what the AG had deemed to be restrictions prohibiting sales of about half of the 40 deaccessioned works.

One possible interpretation of the AG’s seemingly inexplicable change of heart, is suggested in an article by the indispensable Larry Parnass, posted late yesterday on the Berkshire Eagle‘s website.

Parnass reported that law firm representing the Berkshire Museum, WilmerHale, had “over several years donated more than six times as much to her political campaign, on average, than any other top Boston firm, according to a review of public documents by The Eagle.”

In a Q&A with Parnass, Healey, who had previously worked for WilmerHale, denied any conflict of interest, repeatedly asserting that “we followed the rules. We didn’t have any conflict here, and the results speak for themselves.”

Not really: In the absence of any detailed discussion as to why her office’s detailed investigation had led her to conclude that the sales should be permitted, Healey’s falling in line with her former colleagues-turned-campaign donors fails the smell test.

A less sinister reading of the Attorney General’s flip-flop was offered to me today (see Q&A, below) by attorney Michael Keating, who spoke at yesterday’s court hearing before Justice David Lowy of Massachusetts Supreme Judicial Court. He had argued there that if the Berkshire Museum were granted the right to sell up to $55 million in art (as envisioned in the deal with the AG), the court should at least appoint a “special master” or expert in museum management to monitor how the money would be spent.

Keating’s clients included the heirs of Norman Rockwell. That artist’s “Shuffleton’s Barbershop” is the star of the works that shuffled off to Sotheby’s in anticipation of monetization.

Below is a lightly edited transcript of Keating’s candid, informed analysis of this vexing case. In our phone conversation yesterday, which took place shortly after the court hearing, he at first dismissed the AG’s action as “completely baffling.” But he then went on to offer a possible explanation that gave her the benefit of the doubt:

Rosenbaum: What’s your take on what happened in court today?

Keating: I thought the judge was quite interested in our contention that the extent of this sale may not be necessary and, furthermore, the museum didn’t seem to have any specific budgets or other plans as to how they were going to implement the New Vision [my link, not his].

I had made the suggestion in our papers that the judge appoint a special master or an expert in museum management to advise him, because he [the judge] has the power to lift the cy près restrictions [restrictions that would make it impossible or impracticable for the museum to fulfill its mission] and he also has the power to impose conditions on how that’s going to work.

He didn’t say he was going to do it, but at least he understood the point. He raised concerns when he was talking to the museum’s counsel and to the Attorney General about this that I thought were fairly encouraging.

Rosenbaum: The AG’s Office, though, said it didn’t think a special master was necessary.

Keating: I think when the judge looks at the agreement that they entered into with the museum, he can see that it would be extraordinary, in a situation like this, to turn this kind of money over to the museum and not have some sort of monitoring, supervision or reporting requirements.

Rosenbaum: Are your clients, the Rockwells, satisfied with the agreement between the museum and the Attorney General?

Keating: The Rockwells were satisfied when “Shuffleton’s Barbershop” was guaranteed to always remain in the public domain through the proposed sale [to an as yet undisclosed nonprofit museum], so they didn’t want to pursue the litigation further. But I represent several other Berkshire County residents who are still concerned about the sale and what happens to the money if the art is sold.

Rosenbaum: Don’t they and Nicholas O’Donnell’s clients need to have legal standing? Have they ever been granted standing?

Keating: In the normal course, you’d need legal standing to be a party to this litigation. But in a cy près proceeding, the judge is entitled to loosen these standards up. If people like our clients have legitimate concerns about this, even though they may not technically have legal standing to be a party in the case, oftentimes the judges will listen to what they have to say. The fact that the judge was willing to let us speak to the court was encouraging.

Rosenbaum: One thing that I thought was peculiar in the deal with the Attorney General is that “Shuffleton’s Barbershop” can go anywhere. Maura Healey is the Attorney General of Massachusetts. I would have thought there was some obligation to keep the art in Massachusetts.

Keating: That’s what we think too. The Attorney General really, I think, threw in the towel on this. For months, they were concerned about these things as much as we were and they said so in their briefs. Then all of a sudden, they just decided just to capitulate.

Rosenbaum: Why?

Keating: I don’t know why. It was completely baffling to me that they did. And then to capitulate and not require the museum to make reasonable reporting or supervisory kinds of things made a bad situation even worse.

Rosenbaum: What’s your speculation as to why this happened?

Keating: Why did the Attorney General collapse? I think they were concerned that they might not win the case if it went to trial—the cy près thing. And I would concede that it wasn’t a walk for them to win it. I would also say that we lawyers always face a situation where we have to make an assessment about whether we might win or we might lose. If we think we might lose, then we try to negotiate a reasonable resolution. We don’t just say, “Okay, we give up,” which is essentially is what the Attorney General has said here.

Rosenbaum: How did the judge receive O’Donnell’s arguments?

Keating: Nick and I talked ahead of time. I knew he was going to attack the whole sale issue. Then I attacked what would happen if the judge let the sale go through. We divided it that way. There was no point in my repeating what he said.

Rosenbaum: Did the judge show any receptivity to O’Donnell’s argument, which was much more sweeping?

Keating: It’s hard to say. I think the judge is worried about some of the economics that the museum confronts, in terms of the condition of the building. I think he worried that the museum may really need an infusion of money. Our point was, “Yeah, but not $55 million.”

Rosenbaum: What do you think is going to happen next?

Keating: I don’t really know. I think the judge is going to take several days to make a decision here. My hope is that if he decides that any of the sales can go through, he might restrict it to the “Shuffleton’s Barbershop” and require further evidence that other sales are necessary to achieve the objectives of the museum.

The only analysis that really counts will be a ruling soon to be issued by this inscrutable notable:

Speaking of inscrutability, I did ask the AG’s office for details on how and why its research led to the conclusion that it would be impossible and/or impracticable for the Berkshire Museum to continue to fulfill its mission without raising $55 million from deaccessions.

On Mar. 9, I got this answer from the AG’s spokesperson:

Let me see if there’s some additional info we can help provide to answer your question about our investigation.

That was the last I heard. The public is owed a better explanation.

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