The Battle for the Buck : It Was Called the Super Bowl of Probate. For Nearly Three Years, Dozens of Lawyers Fought a Bitter, Expensive Contest to Decide the Fate of an Oil Heiress’s Estate. All in the Name of Charity.

“I give, devise and bequeath the entire residue of my estate to the San Francisco Foundation for the exclusively nonprofit, charitable, religious or educational uses and purposes below stated: . . . Everything so left to it including all rents, issues and profits thereof shall be known and administered as the Leonard and Beryl Buck Foundation, and shall always be held and used for exclusively nonprofit, charitable, religious or educational purposes in providing care for the needy in Marin County, Calif., and for other nonprofit charitable, religious or educational purposes in that county.”

ASIDE FROM REMINDING US OF OUR MORTALITY, the act of making a will normally bestows certain guarantees upon the maker: first, that it is a very private document, and second, that its terms shall remain inviolate. But in the case of the late Marin County oil heiress whose attorney committed the above paragraph to paper, neither was the case. Last fall, a judge awarded $8.8 million of the fortune she left for charity to three San Francisco law firms.

Called “the Super Bowl of probate,” the fight over the sanctity of Mrs. Buck’s will put about 110 attorneys and legal aides to work--some for nearly three years. Yet the lawyers may have lost more in good will than the millions they reaped at the expense of her “hope chest for the needy.”

While the case was spotlighted in the national media, little has been said by or about those who had the biggest hand in its outcome--the lawyers themselves. Theirs is a story of alleged deceit, of concealment of documents, and of opposing sides each convinced that it was in the right. And it is the story of a small-time country lawyer whose style of courtroom guerrilla warfare overcame the full legal might of one of San Francisco’s leading law firms.

When Beryl Hamilton Buck died in 1975, her estate was valued at about $10 million. In 1979, when Shell Oil bought Kern County’s Belridge Oil reserves, in which Mrs. Buck owned a 7% stake, her wellspring of good will overnight became a gusher of philanthropy worth $260 million. Today it is valued at $430 million.

Charged with spending the annual proceeds of this largess was the San Francisco Foundation. A charitable organization founded in the 1940s, it serves the five counties in the Bay Area and receives its funding from a variety of sources, including bequests and corporate gifts.

With the Buck trust windfall, the San Francisco Foundation suddenly found itself propelled into the stratosphere of philanthropy, alongside such mega-givers as the Ford Foundation and the Rockefeller Brothers Fund. It also found itself saddled with an embarrassment of riches to bestow annually in the nation’s second-wealthiest county.

Foundation Director Martin Paley couldn’t have stated it better when he asked San Francisco’s Commonwealth Club in June, “Could we in conscience see the unmet needs of residents in the other counties we serve, in contrast to their better-off neighbors in Marin, and not ask . . . whether a broader distribution of some of the Buck funds was right and just?”

In 1984, the foundation invited Marin leaders and the heads of county agencies and charities to a private Sunday brunch. Without warning, Paley announced that the foundation would go to court the following morning to break the trust so it could spend the money throughout the Bay Area.

The Marin crowd was stunned. County Supervisor Al Aramburu told Paley, “We’ll see you in court.” But public opinion seemed to favor the move. Charities in the other counties applauded. Public Advocates, a nonprofit law firm representing about two dozen Bay Area charities, was in complete agreement. Other foundations, exhilarated at the prospect of shedding the chains of their dead benefactors, gave their support. The press, which had hitherto poked fun at the foundation’s awkward attempts to spend all that money in the “hot-tub capital of America,” gave its approval. “Better that the grip of the past be loosened and the money flow to people who need it,” wrote The Nation magazine. Finally, the foundation had the influential backing of the California attorney general. The message was clear: The foundation was in the right.

So it seemed to Stephen Bomse. A graduate of Yale Law School with 19 years’ experience with Heller, Ehrman, White & McAuliffe, one of San Francisco’s top law firms, Bomse was chosen to lead the foundation’s charge in court. A chunky 41-year- old, Bomse holds the distinction of having been made the youngest partner (at age 27) in the firm’s history.

He lives in a large brick-and-stucco, Tudor-style home high in the hills of Berkeley. Beyond the green Jaguar sedan parked in the driveway, the view of the bay from his living and dining rooms is obscured today by fog. Heller, Ehrman, he explains, has represented the San Francisco Foundation since the latter’s inception. For this case, his firm pulled out the stops, assigning seven lawyers and as many as four paralegals working full time under Bomse’s direction.

The decision to alter the trust came as a result of what Bomse calls an “evolution” on the part of the foundation’s distribution committee. “These people think the object of philanthropy ought to be to take money and make it work to get the most out of it for the needy,” Bomse says. “The problem to them was not simply ‘Can you use the money in Marin?’ but ‘What do you get for your charity dollar?’ The majority felt the return in Marin was not what it should be.”

But there were other reasons. Confides foundation board member Peter Behr, who voted against breaking the trust, “The foundation felt about Marin County the same way the Romans felt about Gaul. While they wanted to conquer Gaul, they really wanted to return to Rome. The foundation had little understanding of Marin, and certainly no affection for it.”

Marin is hardly a poor county by California or U.S. standards. Last year it led the state in both per capita income ($23,932) and household income ($57,810). The median home price in 1985 was $200,557. The median rental was $715. Marin’s unemployment rate in 1986 was the lowest of all Bay Area counties at 3.29%.

But the rich tend to hide the existence of the poor. An estimated 20,000 to 30,000 people in Marin County live below the poverty level (less than $11,000 a year for a family of four). One thousand families receive federal aid to families with dependent children. Three thousand people receive food stamps. Three hundred families are on general relief. Twenty-six-hundred people receive supplemental security income. Six out of 10 Marin women who have children work, and there is a wait of six months or longer at child-care centers. A third of the women who have children earn less than $10,000. In San Rafael’s heavily Asian and Latino Canal area, nine out of 10 families rent, and 22% receive public aid.

DOUG MALONEY HAS BEEN COUNTY counsel for Marin for 25 years. “I’ve always liked the job very much,” he says, “although being a government attorney, you don’t get to become a charter member of the country club.”

At about six feet, Maloney, 53, has a touch of bearishness about him, accentuated by a full beard and the way he walks, which is more of an amble than a stride.

With his crepe-soled shoes propped on his desk, his beige wool slacks and his tweed jacket, Maloney looks every bit the country lawyer. But don’t be fooled. Behind the beard and plastic-rimmed spectacles beats the heart of a fiercely competitive, street-smart barrister. This was the man assigned the dubious task of keeping a $400-million community chest in Marin.

Maloney is the first to agree that some of the Buck money was wasted. “Look at the money they gave to a bunch of hippies in Bolinas so they could plant a French-intensive garden. I mean, you had these people growing some of the greatest sinsemilla on the West Coast in their little hydroponic garden in West Marin.”

Nonetheless, there are other ways of looking at need in the Bay Area, he contends. “If there’s such a dire need in Oakland, then why did the City of Oakland spend millions of dollars to try to get the Oakland Raiders back? Why did they offer to spend millions more to build new luxury boxes in the Oakland Coliseum for Al Davis and his pals?”

PUBLIC ADVOCATES LAWYER ROBERT L. Gnaizda’s office is on the second floor of a run-down block of buildings on San Francisco’s Mission Street. Gnaizda is an affable 50-year-old who still possesses the heavy Brooklyn accent he acquired growing up in Bedford-Stuyvesant. Although he didn’t get a penny from the Buck case, Gnaizda and his partner, Sid Wolinsky, started the whole fracas.

In 1980, they wrote to the San Francisco Foundation “because we thought that, due to the enormous affluence of Marin County and the limited needs of the people there, and the scarcity of charitable resources elsewhere in the Bay Area, the cy pres doctrine was applicable,” Gnaizda says. Cy pres comme possible , a Norman French phrase, is the legal loophole that allows a court to break a trust if the original will can no longer be carried out. “The foundation was kind enough to send a letter that said basically, ‘Thanks for your interest, goodby,’ ” Gnaizda says.

Public Advocates’ goal, of course, was to spread the Buck money to its clients, 27 charities. “Our belief was and still is that keeping the money in Marin would promote the greed that exists in every human being. This is the largest community trust in America. Why should it be kept by one small, wealthy community?” Gnaizda asks.

Public Advocates refused to let the issue die. They brought it to the attention of Carole Kornblum, assistant attorney general in charge of charitable trusts. The state attorney general’s office oversees all charitable trusts to ensure that they are managed according to law and used as intended by the donor.

Yeoryios Apallas, a Greek-born American, was the deputy attorney general assigned to the Buck trial. Well built, with thinning black hair and a heavy black mustache, he likes to pace a 10-foot space in his office while he “pleads his case” before whoever’s listening. He speaks with a thick accent, and he keeps an old shoe brush on his desk to remind him of his youth in Los Angeles, where he shined shoes to help his parents make ends meet.

At first, the attorney general’s office, concerned that Marin County might suffer “charitable saturation,” seemed to be on the foundation’s side. “We filed a petition to determine if the (Buck) funds were meeting the charitable needs of Marin County and to determine whether continued funding of Marin charities was wasteful,” Apallas says.

He contends, however, that the foundation kept the attorney general in the dark about the merits of its case. “In the discovery process,” Apallas says, “we learned that they not only didn’t have the studies we asked for, but a memorandum came to light for the first time. To borrow a term from Watergate, this memo was the ‘smoking gun’ of the Buck case.”

The memo in question was Paley’s Jan. 4, 1983, communication to the board. In it, he stated that “future possibilities of bold grant making” existed in Marin. “The level of acceptable and appropriate grant applications . . . substantially exceeds the spendable income generated by the Buck Trust,” Paley wrote. “I do not foresee any change in that condition . . . within at least the next five years.”

The memo was important for two reasons. One, it showed that Paley himself believed that all the Buck trust’s income could be spent on the needy in Marin. And it also led to the discovery of 60 other documents that sullied the foundation’s credibility in court. “They have a kind of Watergate aspect to them,” says attorney Kathy Fisher of Morrison & Foerster, which represented about 130 Marin charities. “And they talk about how the foundation wanted to ‘cultivate’ the attorney general.” The foundation had claimed that the memos were privileged because they were correspondence with its lawyers.

As a result of the memorandum, the attorney general, on the eve of the trial, did an about-face and joined the other side.

THE SOCKETS AROUND GARY GIACOMINI’s eyes have a greenish cast that can only be the residue of too much work and too little rest. But the energy of the Marin County Board of Supervisors chairman never seems to flag. You could say that Giacomini, 47, was the chief pot stirrer in the Buck case. For instance, he referred to the mannerly, reserved Martin Paley and the foundation’s board--which Paley calls a “Who’s Who of San Francisco”--as grave robbers and necrophiliacs.

Giacomini’s office is tight and disheveled, bordering on claustrophobic. His faded pink shirt is wrinkled. His mustache hints of an un-supervisorly Fu Manchu. “I’m usually the most outspoken person you’ll ever interview,” he boasts. Giacomini is a legend in Marin for his brash style, his sailor’s tongue and his machine-gun-rapid speech. In short, he’s not the kind of guy you’d expect to play by Marquess of Queensberry rules.

“When the case started, before we went to trial,” he says, “I’ll never forget going in the courtroom and seeing the attorney general’s people on the side of this sleaze-ball foundation. Fortunately, the attorney general deserted them.

“Paley was absolutely shocked that the attorney general would turn around and stab the foundation in the back like that,” Giacomini says. “I think what happened was, Apallas went up to Sacramento and said, ‘John (Atty. Gen. Van de Kamp), you want to be governor and President and all that--well, you better do something quick. We’re all out here dangling on a limb in this Buck thing.’ So they switched sides.”

WHAT PETER BEHR’S SLIGHTLY BOWED, 71-year-old form lacks in uprightness he makes up for in wit, intellect and strength of character. His has been forged throughout two decades of holding public office in Marin and more than 40 years as a practicing attorney.

Behr lives with his wife, Sally, in a large, airy house high in the hilly woodlands above the Marin hamlet of Inverness. He was a member of the San Francisco Foundation distribution committee throughout the Buck affair. He and the only other Marin board member, Richard Madden, argued and voted against breaking the trust. “They were some of the finest arguments I ever lost,” Behr says.

As he speaks, Behr’s smoke-blue eyes wander about the room until he is ready to make a point. Then, all at once the eyes alight on you. “I think we had a very high batting average with the grants we made,” he says. As an example, he cites the $5 million the foundation gave to the county and local governments after the devastating floods of 1982. “But for every grant we made, there were two we had to reject. It was like Sisyphus rolling the rock up the hill. The disappointed would-be grantees gained on us.”

He disagreed with a foundation rule that board members shouldn’t let themselves be lobbied by grant applicants. Later, when some of these applicants were turned down, Behr says, the foundation turned a deaf ear. “These people wanted catharsis. They wanted a friend in court--someone to talk to--if only to know why they were turned down. The program executives were overworked and often weren’t able to answer calls. There was no communication with the community. The more important people in the county--including the county supervisors--didn’t like it.”

Behr says the foundation was like the two Englishmen in the famous cartoon: They’re in the jungle at night, seated around a campfire. They are surrounded by the silhouettes of hundreds of shields and spears. The caption reads, “The drums are louder tonight, don’t you think?” Says Behr: “The natives were closing in on us.”

REPRESENTING THE BUCK family’s interest at the trial was Ronald Hayes Malone, 39, a former federal prosecutor whose background includes the Watergate case and the trial of United Mine Workers President W. A. (Tony) Boyle. Malone now works for Orrick, Herrington & Sutcliffe in San Francisco. Six-foot-three and built like a pro football defensive back, Malone drives a Mercedes Benz, wears monogrammed shirts, likes to hunt big game and lives in Piedmont, the East Bay’s most elite community.

Malone, one of the top lawyers in San Francisco, served as a backup to Maloney. He brought in people who had known Mrs. Buck and could testify about her charitable thinking.

Mrs. Buck’s nephew, for example, testified that it was his aunt’s belief that the government will take care of the poor, and that the rich can take care of themselves, but that the middle class is often neglected in times of hardship. “One thing that she always stressed with me was charity for the middle-class people that had catastrophic diseases and disorders and accidents,” said Lee Hamilton, who was raised by Mrs. Buck. “A man would be making good money, but for some reason someone in the family had high medical bills, and they would have to slowly sell off his assets, and he might end up on welfare.”

“YOU CAN’T BEAT A BIG LAW FIRM BY trying to out-sandbag them,” Maloney says. “They’ll just snow you with a blizzard of legal briefs and motions. You’ve got to go lean and mean. Hit them with guerrilla warfare. Use unconventional tactics that stymie them. Keep them guessing.”

A classic example of Maloney’s cunning was his clever reference to the “Buck fly.” It seems that the San Francisco Foundation gave some money to acquire and preserve some land on the east side of U.S. 101 between Mill Valley and Tiburon. In court, the foundation’s attorneys, attempting to show how Buck funds were spent frivolously, called the purchase wasteful.

Maloney agreed, but turned their own weapon on them. He says a professor at the California Academy of Sciences studied a rare species of fly that lives on that land. “This professor, he names the fly Thaumalea Buckae . See, they named the fly after Mrs. Buck. So I told the court, here the foundation has spent over $140 million of this lady’s money in Marin County, and the only thing that bears her name is this humble fly.”

At one point, Maloney got Paley to testify that not even 10 times the Buck fund’s income would be sufficient to meet the charitable, religious and educational needs of the people of Marin County.

Maloney also took care not to let the foundation’s attorneys one-up him in the expert-testimony department. For instance, a key requirement for the foundation to squeeze through the cy pres loophole was to prove that spending the money in Marin was “impracticable.” So Maloney hired a philologist, a word expert. “He checked the word out for us and found the origins go back to Dr. Samuel Johnson’s dictionary. Basically, impracticable means the same as impossible. “

Maloney also used publicity to his advantage, and the heat of public opinion began to sear his opponents.

Paley, for one, was badly burned. He lashed out at his tormentors in a speech to the Commonwealth Club. “To borrow a phrase from a popular movie, ‘I’m mad as hell, and I’m not going to take it anymore,’ ” he said. He added that the foundation had exercised legal restraint and expected a dignified legal proceeding. “Our reward for this has been continued demagogic attacks, most recently as being a ‘Dickensian villain who takes his little ward and kicks him down and throws him in the snow.’ Well, if there is any snow involved, it is the snow job done on us by the skillful and duplicitous manipulation of public opinion by our opposition.”

Marin Supervisor Giacomini, of course, thinks Paley’s preference for a “dignified legal proceeding” means something entirely different: “The foundation figured the county would hire some big Montgomery Street law firm that was a buddy of theirs,” he says, “and one day they’d all go down to the Bohemian Club and cut a deal over a case of champagne.”

Some observers say that Stephen Bomse was too dry in court. In his statements and briefs, he displayed a fondness for quoting people like John Stuart Mill.

In contrast, the legal briefs crafted by Maloney, an amateur playwright, had a literary flair that attracted press coverage. “No tyrant has ever endangered the probity of the law more than the foundation’s hordes of implacable lawyers brandishing flattering word processors, flashing computers, omniscient lasers, and cascades of vacuous rhetoric, all financed by the largess of the very trust they propose to expunge,” he wrote. The statement was duly quoted in the San Francisco Chronicle.

Although it was not a jury trial, the differing legal styles of Bomse and Maloney were not lost on the public. Some say this is one reason the weight of public opinion shifted to Maloney’s favor. “The legal question the foundation was trying to pose never caught fire with the public,” Fisher says. “What was passionate was the question Doug Maloney posed: Is it legal to take away the money of a woman who is no longer here to defend herself?”

Others think Bomse lacked what one lawyer called “that rug-merchant quality that every attorney needs to win a case.” Another points to Bomse’s cross-examination of John Elliott Cook, the 82-year-old lawyer who wrote Mrs. Buck’s will. “He examined that guy as if he were an ax murderer,” one attorney says. “He went after him with hammer and tongs.”

Bomse’s strategy was simple. To prove that Buck grants in Marin were “inefficient” and would be better spent elsewhere, he tried to show how Marin groups wasted the money. To do so, Bomse put San Francisco Foundation program directors on the stand to criticize Marin County charities that were receiving Buck grants. In Buck trial parlance, this became the famous “hit list.” It was the turning point of the trial.

“For years the foundation had told these people (the heads of charities) they were doing a good job,” Apallas says. “Then all of a sudden they get handed a report card with failing grades.” The hit list galvanized the normally mild-mannered human-services counselors into a hard-bitten brigade of angry fighters on the witness stand.

COUPLE OF BURNED-OUT AUTOMOBILE hulks lie down the street, but by and large the neighborhood where Betty Times lives in Marin City is working class at worst, middle class at best. Times is Marin City’s spokeswoman, and has been for the past 15 years--ever since, she says, “my son came home from fifth grade and could not read or write.” His teacher told Times that her boy was doing OK. “ ‘And after all,’ his teacher told me, ‘he’s such a magnificent athlete.’ Athlete, my foot. I want my boy to read and write first.” So, she says, she ran for the school board and won.

And how about her son: Did he learn to read and write?

“He certainly did. We hired a tutor.” Times, 47, wasn’t always so active in the community. She married soon after high school and raised five children. She returned to school at 35 and earned a bachelor’s degree at the University of San Francisco. Today she is director of a county umbrella agency. Her responsibilities include veteran affairs, nursing-home ombudsman, affirmative action, human rights and the youth commission.

Times disagrees with those who say that Marin City is a ghetto. “Marin City doesn’t have an adequate tax base to get much done,” she admits. As chairwoman of the Marin City Community Development Corp., she’s trying to do something about it. A retail or commercial development is planned for land purchased by the development corporation with Buck money.

“I think the San Francisco Foundation thought it was doing a good job here,” Times says. “Unfortunately, they saw it as their money. They wanted you to bow gracefully and kiss their feet like the poor nephew every time his rich uncle comes over. This county has some serious problems. Child care. Affordable housing. A large proportion of single mothers. All of these things--drugs, the high suicide rate, high divorce rate, care for the elderly--touch all of us. They need more than the hit-or-miss funding of the San Francisco Foundation. They were interested in starting new things, but they were stingy when it came to funding ongoing programs.”

IF THE SAN FRANCISCO FOUNDATION was stingy, then Martin Paley counters that the community was too demanding. Paley, 56, a gray-haired man whose small stature belies an athletic build, carries his head tilted slightly back of plumb. He says the “sense of entitlement” of many Marinites made his job more difficult.

“It was very difficult to deal with. One group asked for $220,000, and we gave them $180,000. They were so incensed they complained to the newspapers.”

Judith Mallory, executive director of the Marin Educational Foundation, one of the largest programs supported by the Buck fund, agrees that Marin people can be bold in claiming a share of the Buck millions. “Yesterday an attorney making $200,000 a year came in my office. He asked us to pay his full tuition to medical school. I gulped three times, and then I told him: ‘You’re the type of person that’s giving this trust a bad reputation.’ He was upset.”

The net result is that people are less likely to give of their time and money, Paley says. “The Buck fund has a dulling effect on volunteerism.”

Maybe. Maybe not. To the contrary, the court found that the number of volunteers in Marin had increased significantly since 1980. Examples aren’t hard to find. Wayne Wechsler, who runs an emergency housing shelter in San Rafael, got a new shelter built in September using half donated labor and half grants and contributions. “This new building is going to vastly improve the quality of life for the people we serve,” says Wechsler, 34. “These people have been trying to wash themselves and their clothing out of bathroom sinks in churches. Now they’ll have washing machines, dryers, showers.” Local carpenters, electricians and painters donated their time. Cash came from the Junior League, the Firemen’s Fund Foundation and the Buck trust.

In mid-July, a settlement was reached.

The foundation lost its cy pres petition. In return for attorneys’ fees of $3.9 million and an additional $3 million in “transition” fees, it agreed to turn over the responsibility for distribution of the Buck trust on Jan. 1, 1987, to a new community-based foundation in Marin County. Three law firms received $8.8 million in lawyers’ fees and costs. The County of Marin got court costs of $1 million. The judge appointed a “special master” to oversee the new foundation. He also is an attorney and will be paid $95,000 per year.

Martin Paley resigned from his $150,000-a-year job on Sept. 10. Less than a week later, San Francisco Chronicle columnist Herb Caen reported that Paley was fired. Whatever the reason for Paley’s leaving, his pride in the foundation remains unshaken. “This foundation has a reputation for honoring people’s trusts, carefully managing their money and scrupulously administering the funds according to the terms of the original agreement,” he says.

But the San Francisco Foundation was not the only loser. The attorneys, despite their $8.8-million windfall--or perhaps because of it--were big losers. The county’s leading newspaper, the Marin Independent Journal, published an editorial suggesting that some of the lawyers rebate their fees to charity: “Every lawyer does jobs known by the Latin phrase pro bono --for the good of the public. The public good would immeasurably benefit by a donation here.” The editorial mentioned Heller, Ehrman, saying that a rebate of its $3.9-million fee would raise the firm’s esteem in the eyes of Marin. It also suggested that Orrick, Herrington & Sutcliffe, Ron Malone’s firm, give back its $3.9 million. Malone terms that idea “absurd.”

“Look at it this way,” he says. “For roughly four months’ income on the trust, we were able to preserve this trust for Marin County in perpetuity.”

Public Advocates refused to be a party to the settlement and did not ask for legal fees. Gnaizda figures it cost his firm $1 million, or one year’s budget. “I personally think it is dishonorable to accept a fee from your clients if you lose,” he says.

The gentlemanly Behr, the foundation board member who opposed the filing of the lawsuit in the first place, is direct: “I think the legal profession is pretty greedy,” he says. “Certainly, none of the big law firms gave any consideration to the fact that (the trust) was not General Motors or Du Pont.”

The judge should share in the blame, Behr thinks. “He didn’t have to give Heller, Ehrman $3.9 million. He could have reduced it to, say, $2 million. But not just give them what they ask. What a lawyer asks in a fee is like a prayer to God.”

After a moment’s pause, he adds, “I imagine the attorneys were surprised when they looked up and God nodded his head.”