Since Manhattan District Attorney Robert M. Morgenthau unsealed indictments on the "swindling" of the late Brooke Astor, grand dame of New York society and Gotham's first lady of philanthropy, the press accounts have focused on the two men charged: Anthony D. Marshall, Astor's 83-year-old son, who appeared ashen, his shock of white hair kicked up by the downtown wind, at his Nov. 27, 2007, arraignment, and Francis X. Morrissey Jr., a ruddy 65-year-old lawyer. Marshall and Morrissey are charged with engaging in a scheme, beginning about Dec. 1, 2001, and continuing until about Sept. 11, 2007, in which they "exploited Brooke Astor's diminished mental capacity . . . in order to unjustly enrich themselves." There's also a third man referred to, although unidentified, in the indictment. This lawyer figures in the first "overt act" in the alleged conspiracy carried out by Marshall and Morrissey. All indications are that he's blameless. But he probably will be called as a key witness in the criminal trial. That man apparently is G. Warren Whitaker, a respected trusts-and-estates lawyer from the New York office of Day Pitney LLP. In January 2004, Marshall and Morrissey "hired a trusts and estates attorney known to the Grand Jury, ostensibly to represent Brooke Astor," according to the indictment. That lawyer drafted a second codicil to Astor's 2002 will, which left to Marshall her residuary estate outright. "On or about January 12, 2004 defendant FRANCIS MORRISSEY and said trusts and estates attorney had Brooke Astor execute the second codicil to her 2002 will in Brooke Astor's residence in New York County." Once executed, the second codicil, as drafted by Whitaker, had the effect of "thereby changing her long-established plan that her residuary estate would ultimately go to charity," according to the indictment.(1)

Morgenthau refused to identify the indictment's mystery man when questioned by reporters at a Nov. 27, 2007, press conference. His office remains mum: "Unfortunately, there's not a lot that can be said this early on," says Barbara Thompson, Morgenthau's long-time spokeswoman. She points out that the lawyer is not named as an unindicted co-conspirator. In fact, the DA's press release states that this lawyer "has not been charged with a crime."

But this lawyer has to figure proceedings in that civil dispute reveal the indictment's mystery man to be Whitaker, whose firm was then called Day, Berry & Howard LLP. During the fall of 2006, the court-appointed lawyer for Brooke raised questions about her competency when she signed documents that changed her will. At a hearing on Sept. 14, 2006, Whitaker said, "Mrs. Astor read the second codicil and power of attorney and asked me questions about them, which I answered to her satisfaction," according to an account in The New York Times. "She told me clearly they expressed her wishes," Whitaker told the court. Whitaker's credentials are impeccable. A former chair of the Trusts and Estates Law Section of the New York State Bar Association, Whitaker was selected for Worth magazine's "Top 100 Attorneys" for affluent Americans and has written for many publications, including Trusts & Estates.

A spokeswoman at Day Pitney LLP returned a call to Whitaker's office, but did not answer questions about whether Whittaker is the lawyer referenced in the indictment, whether he appeared before the grand jury, or whether Whitaker had charged Brooke Astor $89,000 in fees, which were challenged as unjustified by Brooke Astor's court-appointed lawyer back in September of 2006. The Times reported Whitaker as indicating that the fees were for the preparation of draft probate and estate tax returns in the event of Brooke's death. At the time, Whitaker told the court that he was still owed $27,000 in legal fees. Whitaker was not in attendance when Marshall and Morrissey cast the last die in their alleged plot; when, according to the indictment, Morrissey forged Brooke's signature on a third codicil to her will in March of 2004. The document, which directed her real property be sold following her death, resulted in higher executor fees paid to Marshall and others. Readers of the tabloids may soak up news of the indictment, but it's the fact that a surrogate court proceeding is under way to determine whether the second and third codicils were properly executed that rivets trusts and estates lawyers. "The criminal case is going to go first," says John D. Dadakis of the New York office of Schiff Hardin LLP. "It's an unusual situation, but it becomes a two-track issue." Adds Robert Sitkoff, a trusts and estates professor at Harvard Law School, the Astor case highlights an "ongoing troublesome issue" of unregulated powers of attorney. "It's a vexing issue. On the one hand, you want the agent to have the freedom to operate without checks so they can act swiftly. By definition, you are not monitoring them." Marshall and Morrissey, both of whom pleaded not guilty at their arraignments, are scheduled to appear in court again Jan. 30, 2008, when the plot will surely thicken.

Endnote

1. The first codicil, signed in December of 2003, was prepared by Brooke Astor's long-time lawyer, Henry Christensen III, then of Sullivan & Cromwell LLP, who was fired by Anthony D. Marshall and replaced by Francis X. Morrissey Jr. LLP.rominently if the cases go to trial and a jury must weigh the evidence of Brooke's state of mind when she altered her long-standing testamentary wishes. The indictment states: "During the period of conspiracy, Brooke Astor had diminished mental capacity." Morgenthau got involved in the battle over Brook Astor's estate after a high-profile courtroom battle last year between Marshall and his son Philip. Brooke was still alive then, but 104-years-old. Philip accused his father of neglecting her care while spending her money.