CHICAGO (Legal Newsline) - A lawyer who persisted with a lawsuit accusing the famous Scottish artist Peter Doig of refusing to acknowledge one of his early works is now on the hook for more than $2.5 million in sanctions.
A federal judge in Illinois awarded nearly all of the $2.7 million in legal defense fees requested by Doig, an artist in the primitive style whose works have sold for more than $10 million at auction. Doig was dragged into the litigation in 2013 by Robert Fletcher, who accused him of lying about creating a painting Fletcher purchased for $100 when Doig was living in Canada in the 1970s. (The painting can be seen in this chicagomag.org article.)
Sanctions were justified against Fletcher, his lawyer William Frederick Zieske and Chicago gallery owner Peter Bartlow because they persisted with the lawsuit long after Doig provided overwhelming evidence another man with a similar name created the work, U.S. District Judge Gary Feinerman ruled in a Dec. 30 decision. The judge rejected Zieske’s arguments he should be spared sanctions because he is a solo practitioner with a family to raise and because a trial judge had allowed the case to proceed before eventually ruling against his client.
Fletcher said he attended Lakehead University in Canada in the mid-1970s and worked as a guard at the nearby Thunder Bay Correctional Center, where he met an inmate who was a talented artist. Fletcher said he helped the inmate find a job after he was released and purchased his painting, signed by “Peter Doige,” for $100.
Years later, a friend told Fletcher the painting had actually been created by Peter Doig, by then a world-renowned artist whose painting “White Canoe” set a record for a living European artist of $11.3 million at auction in 2013. Fletcher contracted with the Bartlow Gallery in Chicago to sell the work, which the gallery estimated could be worth as much as $12 million. He also contacted Sotheby’s, which praised his “wonderful early painting by Peter Doig.”
Gallery owner Peter Bartlow emailed Doig, asking him to authenticate the painting “done in Thunder Bay while in school” and identifying Fletcher as a classmate. A Doig associate responded: “Mr. Doig never lived/attended school in Thunder Bay, Ontario. Additionally he does not believe he knows or did know a Mr. Bob Fletcher.”
In a series of emails, Bartlow demanded Doig reveal his whereabouts from 1976 to 1978 or he would reveal his time at Thunder Bay, possibly jeopardizing Doig’s ability to enter the U.S. He also emailed the Michael Werner gallery, which represented Doig, and said “Mr. Fletcher is only interested in receiving a fair price for the painting, and does not wish to bring up anything which Mr. Doig would wish to remain private.”
Gordon VeneKlasen of the Werner gallery emailed back with a threat of litigation and possible criminal prosecution for extortion if he persisted. “We are not interested in any further communication related to this. Good luck in finding the real artist for this,” he said.
Bartlow then emailed Fletcher, saying: “The dealer denied it again, so I may have to turn up the heat a notch.” He also contacted Doig’s father several times, suggesting “we can still work this out like gentlemen,” and stating “this is not anything close to extortion.”
Finally, Fletcher and Bartlow sued in April 2013, claiming in the public court filing that Doig was convicted of LSD possession and incarcerated at Thunder Bay, where he met Fletcher and Fletcher watched the painting being made. The complaint cited “several uncanny convergences” with Doig’s known biography, including the fact he lived in Canada as a teenager and later created paintings with LSD themes.
Doig’s lawyer Matthew Dontzin fired back with a demand to withdraw the complaint under threat of Rule 11 sanctions. He submitted a declaration from a woman named Marilyn Doige Bovard, who said she was the sister of the late Peter Doige. She said her brother had attended Lakehead and was later convicted of a crime and incarcerated at TBCC, where he painted pictures like the one Fletcher owned.
Zieske refused to drop the lawsuit, saying Bovard hadn’t submitted an “official death certificate” for her brother and that was just “the tip of the iceberg” of evidence she was lying. At a hearing, the trial judge asked Zieske whether it “would be in your interests to put the brakes on this case” and reminded him that while he might have had a reasonable basis for filing suit, that basis could evaporate if the defendants turned out to be right.
Even so, the judge refused to dismiss the case, citing U.S. rules requiring judges to accept a plaintiff’s claims as true in a motion for summary judgment. Doig won after a bench trial in August 2016, however, where it emerged that Zieske had failed to contact any of more than 20 witnesses Doig disclosed to confirm he wasn’t in jail in the 1970s.
Doig then moved for sanctions against Fletcher and his lawyer, saying they sued Doig even though the painting was signed “Doige” and they had failed to properly investigate his claims. He sought sanctions under Rule 11, which prohibits lawyers from signing court filings without properly investigating the facts behind them; and Section 1927 of the U.S. Code, which prohibits lawyers from unreasonably extending litigation.
Apologizing for the years it took to resolve this case, Judge Feinerman awarded Doig most of what he requested.
“While the court agrees that Plaintiffs and Zieske could have investigated further before filing suit, it cannot say with the requisite level of confidence that they initiated the suit without an objectively reasonable basis,” the judge wrote. Doig had spent some time in his teens in Canada, the judge said, but after he discovered the real artist’s sister in 2014, “at the latest, it should have become indisputably clear to plaintiffs and Zieske that their claims stood no chance of success and, in fact, that the claims were factually meritless.”
Zieske complained that Doig’s lawyer had submitted an inflated bill with rates as high as $1,050 an hour. The judge trimmed the $2.7 million bill by 20% to reflect inconsistencies including one lawyer who reported working 70 hours in a single day but didn’t quibble with the hourly rates.
“This case required expertise in art law and demanded resources and legwork to identify persons who could shed light on Doig’s whereabouts and activities four decades ago,” the judge wrote. “The nature of the case was therefore not ordinary, and above-average rates are wholly justified.”
Zieske also asked the judge to exercise his equitable powers to reduce the sanctions. Unfortunately, the judge said, while he could reduce the sanctions under Rule 11, he didn’t have that discretion under Section 1927 of the federal law.