Brooklyn Surrogate's Court 2005

Keep up to date with the latest Newspaper and Internet articles on this year's Brooklyn Surrogate Court race

Monday, February 28, 2005

Attorney Rosenthal a Major Contributor

Crain's New York Business - Feb. 28, 2005

Attorney Louis Rosenthal, whose bloated fees led to the suspension last week of Brooklyn Surrogate Michael Feinberg, donates heavily to political campaigns.

Mr. Rosenthal's donations oiled the Democratic machine that in 1996 helped elect Mr. Feinberg, who approved $9 million in legal fees for Mr. Rosenthal from 1997 to 2002. Of that, $2 million was ruled excessive by a state commission.

Beneficiaries of Mr. Rosenthal's largesse include the Brooklyn Democrats' political action committee ($2,450); county Assemblyman Clarence Norman, the Democratic Party leader ($1,525); and state Sen. Carl Andrews and Councilwoman Tish James ($1,000 each). Mr. Rosenthal even gave $500 each to candidates who ran against each other for Brooklyn borough president. His largest contribution, $7,500, went to Attorney General Eliot Spitzer's 2002 campaign.

Sunday, February 27, 2005

Friends of the Court

New York Times - Editorial

FRIENDS OF THE COURT

February 27, 2005

The problem of courthouse patronage is practically hard-wired into New York State's system of electing judges. Party leaders have disproportionate influence over who gets to be a judge. Judges, in turn, dispense lucrative legal assignments - even, in egregious cases, favorable verdicts - to party leaders and to the well-connected lawyers who helped elect them.

New York's chief judge, Judith Kaye, has struggled heroically to control favoritism through administrative reforms. These reforms have been useful, and there is room for more. But the main responsibility for breaking the clubhouse-courthouse nexus, and giving New Yorkers the impartial judicial system they deserve, belongs to the State Legislature in Albany, which should replace the existing patronage-based system of electing judges with a system of appointing them by merit. That, in turn, will require a constitutional amendment.

Two continuing investigations into judicial and political corruption in Brooklyn demonstrate how important it is for Albany to move forward. In one case, a State Supreme Court justice, Gerald Garson, has been suspended from the bench and is awaiting trial on bribery charges. A key witness in that case admitted last week to passing thousands of dollars to a politically connected lawyer to arrange preferential treatment in cases before Justice Garson. The investigation into the judge's rulings is also seeking to establish links between him and the Brooklyn Democratic machine.

The other case involves allegations by the State Commission on Judicial Conduct that a Surrogate's Court in Brooklyn may have fleeced widows and other heirs out of millions of dollars. On Feb. 14, the commission found that Michael Feinberg, a Kings County surrogate judge, had named a friend and law school classmate, Louis Rosenthal, to handle the legal matters of people who died without wills and then rubber-stamped Mr. Rosenthal's legal fees of $9 million. The commission described $2 million of these charges as "excessive."

Judge Feinberg, who has also been suspended, had been supported in his campaign for the surrogate judgeship by the local political boss, Clarence Norman Jr., as well as by Mr. Rosenthal. Shortly after becoming a surrogate, Judge Feinberg gave Mr. Rosenthal the responsibility to wind down the estates of people who die without wills. This is a lucrative business - in Kings County alone last year, there were some 1,200 such estates, with a total worth of more than $57 million.

Earlier this month a special commission appointed by Judge Kaye recommended a series of reforms dealing in particular with the lawyers who, like Mr. Rosenthal, handle these estates. The reforms would apply the same rules that now prevent the court from awarding fiduciary appointments - like guardianships - to relatives, friends and others with questionable ties and would require a cap on fees. Judge Kaye is also seeking broader, systemic reforms that among other things would blend Surrogates' Courts into the rest of the system. But nothing would better serve the judicial system than minimizing the clubby relationship among judges, politicians and lawyers by basing judicial selections on merit alone.

In recent months, of course, Albany has been preoccupied - and properly so - with reforming its own institutions. But as legislators fix their own house, they should not ignore the needs of this other ailing branch of government.

Wednesday, February 23, 2005

Scandal-plagued Brooklyn Judge Benched

NY POST February 23, 2005
SCANDAL-PLAGUED BROOKLYN JUDGE BENCHED

Brooklyn Judge Michael Feinberg was ordered off the bench yesterday by the state's highest court.

The Surrogate Court judge, long accused of rewarding political pals with lucrative court appointments, was suspended by the Court of Appeals.

The judges said the suspension will be in effect pending "disposition of his request for review . . . by the state's Commission on Judicial Conduct."

Feinberg had appointed a lawyer named Louis Rosenthal guardian of estates of several people who died without leaving wills.

The 61-year-old judge is accused of allowing Rosenthal to collect $2 million more from the estates that he was entitled to.

Rosenthal was permited by law to award himself up to 6 percent of an estate, but Feinberg allegedly would allow him to take up to 8 percent.

Brooklyn Judge Suspended

NY Times - Metro briefs
ALBANY: BROOKLYN JUDGE SUSPENDED
The New York State Court of Appeals yesterday suspended Michael H. Feinberg, the Surrogate Court judge in Brooklyn, until it can review whether he should be permanently removed from the bench. Last week, the state's Commission on Judicial Conduct voted to remove Judge Feinberg, contending that he had improperly awarded millions of dollars in fees to a longtime friend. The judge, who was suspended with pay, asked the appeals court to review that decision, which it is not expected to do before September. In the meantime, a replacement for Judge Feinberg may be named by the chief administrative judge, Jonathan Lippman; the acting surrogate judge is Justice Ira B. Harkavy of the State Supreme Court.

Monday, February 21, 2005

Excavation Time at Brooklyn's Surrogate Court

Footnotes (www.FootnotesNY.com)

EXCAVATION TIME AT BROOKLYN SURROGATE’S COURT
by Maurice Gumbs
February 21, 2005

And now it looks very much like the end of a judicial career, or any career for Brooklyn Surrogate’s Court Judge Michael Feinberg.

There is a lesson in this story which we place here at the very beginning. Several persons have already proposed themselves as replacements for Judge Feinberg. Some of them have resumes which guarantee that the sleaziness, the patronage, and predatory nature of the Surrogate’s Court will continue. Footnotes believes that no sitting judge, and no attorney who is identified as part of, or a supporter of, the current County Leadership should be considered as either a temporary or permanent replacement as Judge of the Surrogate’s Court. The opportunity for cheating and self-enrichment is too great to be put into the hands of individuals of this caliber. There is a likelihood of temporary appointment from Governor Pataki. This scandal should prompt the Governor to appoint someone who has a demonstrated history of fearless independence, integrity, and willingness to be an advocate for those who are not empowered by politics and wealth. The Governor’s record of past appointments does not encourage optimism, and voters may have to wait until there is an election to have the right thing done.

Meanwhile, Judge Feinberg has appealed for mercy to the Court of Appeals. The judge’s attorney, Harvey Greenberg, has tearfully admitted to the State Court of Appeals that his client was guilty of serious errors in his conduct. But Harvey pleads that Feinberg should not be removed from the bench because none of his actions were out of greed or the desire to enrich himself.

We know some very righteous people who agree with Harvey that Michael Feinberg is a basically fair, decent and honest guy. But this does not alter the fact that people who depended on the Surrogate’s Court to protect their rights were cheated and harmed under his watch, and that wrong cannot be set aside.

Before the Judicial Panel, Feinberg admitted that the $2,000,000 overpayment to his close friend, the Surrogate’s counsel, had occurred because he (Judge Feinberg) had merely “skimmed through” the rules governing the fees to be paid. In other words, Feinberg had been given the duty of protecting the rights of the heirs of deceased individuals, but really didn’t give a damn about how much was taken out of their estates illegally.

In proposing the “no venial wrong” alibi for his client, Mr. Greenberg ignores the fact that the primary basis for firing most employees, including police officers, teachers, transit workers, nurses, plumbers, and even lawyers, is not venial conduct, but always because of failure to perform their jobs adequately. It is absurd to propose that Judges, who have in their hands the power to destroy the lives of citizens by their incompetence should be held to a lesser standard. Moreover, had Mr. Feinberg’s actions been clearly identified as “venial” by the Judicial Commission, he would already be facing not merely dismissal but criminal charges leading to imprisonment. And the truth is that the judge who served as referee found that Mike Feinberg’s testimony was evasive, and not credible. And so did the 9 panel members who reviewed the referee’s report and listened to Feinberg’s responses. Put bluntly…everybody concluded that Feinberg was lying, and was trying to cover up what he had done. And contrary to Mr. Greenberg’s theory, that finding carries the serious implication of venial behavior.

Judge Feinberg, like many other Brooklyn judges, surely underestimated the fearful responsibility and consequences of violating the posted assurance in Courtrooms which indicates that judges stand in the place of God. Too many of Brooklyn’s shabby so-called “judges” on a daily basis make a mockery of their role as they dispense “bribe-justice,” and ignorant, sloppy decisions to citizens who come before them in good faith, trusting their carefulness, righteousness, and wisdom. In the days of the Old Testament these rogues would be thrown out the windows of their courtrooms and their carcasses left on the sidewalk for dogs and vultures to feed upon or to rot in their stinking black robes. Upon review it is not surprising that this attitude informs the thinking and behavior of Brooklyn’s judges when we see them running for office with sponsors who exhibit the qualities of God’s counterpart.

The immutable rule in this life for all human beings is that when we rob or cheat or harm or hurt children, widows, orphans, the poor, the sick, the disabled, the unempowered, and the innocent, we will not escape ultimate and severe punishment.

There is sometimes the perception among judges, elected officials, and other powerful men that they may commit these deeds with impunity. That is no more than an illusion. The infinite symmetry and justice of the Universe will not allow it. And in the end it may be better off for those who perpetrate or condone injustice to receive the prompt, harsh strokes on their own backs rather than have the fierce punishment fall heavily on the bodies of their innocent children or grandchildren who are guilty only by virtue of their kinship. So, for Mike Feinberg, being dumped from the bench may be a blessing to his family and loved ones which he should accept with humility and without protest.

A Footnotes article reflected on all of this several years ago when the seamy side of the Surrogate’s Court first appeared. We knew that State Senator Carl Andrews had spent most of his political career as nothing more than a puppet of Clarence Norman. In fact, Carl cannot deny that this writer warned him on many occasions of the consequence of this relationship. And in 1997, when we saw that Carl had been appointed auctioneer of the Surrogate’s Court we knew exactly what was about to happen. We also reminded Brooklynites of the importance of making a will if they did not want their estates to fall into the hands of ambitious and predatory politicians

Later on, we believe that it was Jack Newfield (or was it Jimmy Breslin) who told one story of how shabbily the Brooklyn Surrogate’s Court Administration had dealt with money due to the poor family of a deceased Mexican immigrant. The anecdote described how, in spite of a federal judge’s order, funds belonging to the dead man’s family had been callously tied up in the Brooklyn Surrogate’s Court possibly with the intent of churning more fees and adding more charges. Newfield recounted his frustrating and fruitless attempts to get the Public Administrator and her counsel to move on the matter. It appeared to be the norm rather than the exception in Surrogat’se Court. And we understood that such stories were legion.

It took a painfully long 3 years for the referee and the Judicial Panel to determine that Michael Feinberg was guilty of serious dereliction of duty. The Judicial Panel of the Universe also proceeds at its own leisurely pace. But the outcome is far more certain, and infinitely more severe in its punishment. And besides, there will be no connected appointees from Governor Pataki or Speaker Sheldon Silver on that panel to intervene on behalf of the guilty or make excuses for their misconduct.

We believe that the New York Court of Appeals will have no choice but to sustain the decision to bounce Feinberg. The stench of corruption in Brooklyn’s Courts is too nauseating to be tolerated any longer. The filth has risen to mouth-level. For several years Chief Justice Kaye’s face has gagged impotently on this diet of dishonor. Moreover, the Court of Appeals cannot in good conscience give Judge Feinberg a reprieve and keep him on the bench when the fact-finders who reviewed the records over 3 years and listened to his testimony determined that he was not only incompetent, and irresponsible, but evasive, not credible, unreliable, and unconvincing. They pretty much called him a “damn liar.” For its own sake, and as a small step towards restoring the integrity and credibility of the New York State Judiciary system, the Court of Appeals will feel obliged to sustain the recommendation to dismiss Mr. Feinberg.

The removal of Marietta Smalls, the Surrogate Court Public Administrator, and of course Louis Rosenthal, her counsel, will automatically follow. In fact, these two are likely to be dismissed long before the final ruling on Judge Feinberg…if they have not been fired already. Moreover, Rosenthal is likely to be required to refund to the estates of heirs over 2 million dollars improperly paid to him from Surrogate’s accounts. Shed no tears for Lou Rosenthal. He gets to keep 8 million dollars and probably much more. Not bad for 5 years of work. We should all be that lucky.

But Footnotes suspects that the decision of the Judicial Commission has exposed only the bare tip of a massive larcenous iceberg. It takes little more than a quick look at the Lou Rosenthal get-rich-quick story to smell something fishy going on, and to realize that the money trail needs to be followed.
A quick summary. In 5 years Lou Rosenthal made an easy $10,000,000 as counsel to the Public Administrator of the Brooklyn Surrogate’s Court. That’s United States dollars. Not Confederate money or Guyanese dollars or Mexican pesos.
Most of Lou’s fortune came from money that belonged to orphans, widows, and people who were desperately in need of every penny of the money Lou was handling. The Surrogate’s Counsel made his money by getting a cut of all the estates and money of people who had died without a will. 6% of the money left to these poor people was enough to make him a multi-millionaire in a few years. But in addition Lou finessed Justice Feinberg into adding on an extra 2% for friendship and for old-time’s sake. The Judicial Panel found no other just reason for this generosity from Mike Feinberg. So no matter how little time Lou spent on a case he got 8% on them all. It was estimated that this gave Lou a bonus of at least $2,000,000 over 5 years. That’s what buddies do for each other.
On top of this, Lou routinely collected extra fees for handling real estate closings on Surrogate’s property and was known to get as much as $33,000 just for referring a wrongful death matter to another attorney. This means that the final income of the Surrogate’s counsel in those 5 years was probably a lot more than the $10,000,000 estimate mentioned above. Keep in mind that the position of counsel to the Public Administrator was just a part-time job for Mr. Rosenthal. Oh Yes. Lou Rosenthal had his own private practice, thank you.

The fact that attorney Lou Rosenthal could make about $10,000,000 on a part time job in five years is very, very strange. In fact it’s awesome. In a New York minute you could have 10,000 topnotch, qualified lawyers willing to wait in line for days to apply for such a job. In freezing rain. But Lou Rosenthal was on Feinberg’s short list of One.

So even stranger and more awesome is the fact that a certain logical question hasn’t been raised as yet by the District Attorney and the State Attorney General.

Is it really possible that an attorney in a position of political patronage could earn 10 million bucks from a part-time job without sharing some of this bonanza with the bosses who made it possible for him to get it? Especially when these political bosses were quite aware that part of this income was being enhanced with at least 2 million bucks more than he was entitled to.

Frankly, we believe that there is not even a question about whether or not Lou Rosenthal shared his bankroll. We take that for granted. Here, the only question is how much of his wealth he shared, what the mechanism was for sharing, and who the individuals were with whom he shared?

Even if the Brooklyn Democratic Party leadership had a reputation for impeccable honesty, it would still be difficult to believe that lucky Lou would get to keep all that cash for himself. No way! No how! But here we’re looking at a situation where both County leader Clarence Norman and his executive director Jeff Feldman have been indicted and are being tried on several charges including Grand Larceny, Bribery, Extortion and Fraud. Let’s face it. We’re not dealing with Mother Teresa. We’re dealing with people who are currently on trial because of greed.

What are we supposed to think? That Clarence and Jeff would put the arm on former Judges Karen Yellen and Marcia Sikowitz for a few thousand dollars and let Lou Rosenthal walk away with 10 million? Never in a million years could we be convinced that these characters would let this goose with 10 million golden eggs escape from their hands untouched.

Let’s back up and put this entire story into some perspective. Mike Feinberg had been a Civil Court judge from 1981 to 1990. He became a State Supreme Court judge in 1991. Generally, only loyal, obedient soldiers of the Democratic Party get to be the Party’s nominees for State Supreme Court. Ask Margarita Lopez Torres. So it’s fair to assume that Mike was a company man who knew the rules of engagement.

In 1996, Mike went to the County bosses Clarence Norman, Jeff Feldman and others for endorsement, just like candidates Karen Yellen and Marcia Sikowitz did when they were running for Civil Court judgeships in 2002. All of them were willing to pay a certain price with the expectation of getting an edge over their opponents.
In the past, County candidates could expect substantial benefits from this endorsement. There was the promise of support in collecting and submitting signatures. They looked forward to the County’s legal hacks knocking off other candidates from the ballot. (Desmond Green and Fern Goldstein were knocked off in 1996. County knocked off 2 candidates in 2002, putting a third Garson (Robin) on the bench with a free ride.) County candidates anticipated sympathetic treatment by “contract” judges in Election Court. They trusted that County employees at the Brooklyn Board of Elections would pass information on to the County’s legal hacks. They felt confident that loyal County employees at the polling sites and machines would be aware that they were “part of the team” and would do what was needed to assist them.

Why else would judges like Karen Yellen and Marcia Sikowitz have gone to Clarence Norman and Jeff Feldman when they were aware of the sleaze factor, and saw the red sign flashing: CAVEAT EMPTOR.
Feinberg’s problems today can probably be traced back to his compliance with what County bosses Norman and Feldman refer to as Party Discipline.

To begin with, we were hearing during that 1996 campaign that candidate Feinberg was being squeezed like a squeegee. We have no idea how much money he put out, but we are assured that it was an all-time record for a Surrogate Court race. The candidate’s supporters complained at the time that the County bosses were using Feinberg like an ATM machine, and that much of the cash was going to Clarence’s inner circle and the Thurgood Marshall Democratic Club.

(As a side note, Judge Martin Marcus was in error when he dated this club’s existence at 2001. That may be the official date of registration with the State Board of Elections, but Thurgood Marshall operated as an “occasional club” receiving money from candidates and other contributors maybe as early as 1988).

One friend of Feinberg described to us recently how the candidate was told 3 days before election day that he had to come up with $80,000 for a Thurgood Marshall club “bring-out-the-vote” operation. When Feinberg protested that he was “tapped out,” he was pushed to borrow the money with a promise that it would be refunded to him immediately after the election. Feinberg reportedly borrowed the money from relatives and friends, and the word is that he is still waiting for that refund check to come to him in the mail.

Once elected, Judge Feinberg, again the loyal soldier, evidently complied with what we think of as paragraph #2 of the unwritten, but time-honored County contract (referred to as the MLT clause). Paragraph # 2 apparently gives the County leader and/or a District leader the option of putting one or two key appointees on a judge’s staff. In this case, Clarence’s best friend, Carl Andrews was selected as the auctioneer for property in the Feinberg Surrogate Court. Marietta Smalls, one of Carl’s dearest friends and a member of Clarence’s inner circle since 1984 was selected as Feinberg’s Public Administrator of the Surrogate’s Court.

For sure, Marietta’s promotion from some humble job was shocking, and we imagine she got a 25 or 35 thousand increase in salary. But $25,000 a year was hardly the reason why County leader Clarence wanted his friend Marietta in what was potentially the most powerful position in the Brooklyn Surrogate Court. There were bigger fish to fry.
In testimony given to the Judicial Panel, Judge Feinberg claimed that attorney Rosenthal was entitled to a 2% increase over the regular Surrogate counsel fee because he was doing the work which the government-funded Public Administrator’s office should have been doing but was not. We interpret this statement to mean that Judge Feinberg considered the office of the Public Administrator under Marietta Smalls to be a sham and that Marietta and maybe others in that office were being paid a salary out of government funds while not doing the job for which they were paid. In giving this testimony, Judge Feinberg has surely invited District Attorney Hynes and State Attorney General Elliot Spitzer to begin an investigation.
But while her counsel, Lou Rosenthal, may have picked up the actual work tab of her office, Marietta Smalls as the official public administrator of record was privy to all business matters and records in the Surrogate’s Court. She was positioned to report back to the County leadership every transaction that were took place. Marietta would know exactly how much money was passing through the hands of her counsel, Lou Rosenthal. She would know what receiverships were available, when lawyers were needed to handle lucrative cases, which estates required administrators, and what real estate properties were to be auctioned or sold. She also knew that Michael Feinberg was giving his pal Lou the extra 2% (2 million bucks) without even requiring paper work. Finally Marietta was in a position to project for the County leadership that by the end of Mike Feinberg’s first term in office, Lou Rosenthal would have make over 30 million dollars in his part time job as her counsel.

We recall at that time that people from the Ed Towns and Genovese camps complained that Clarence had first hijacked Feinberg, and had then hogged all the patronage in the Surrogate’s Court for themselves. But it was a done deed, and their grumbling was of no consequence. Clarence had got his fingers deep into the sweetest pie in New York City and had a broad smile on his face.

Marietta Smalls and Lou Rosenthal have some questions to answer, and it would be truly shocking if they have not had friendly conversations with the District Attorney’s office already. State Senator Carl Andrews should also be able to share some information about how he developed the skills, and where he found the time to become the Surrogate’s Court auctioneer in addition to handling his job working with State Senator Marty Connor in Albany. The list of receivers, administrators and lawyers who worked for the Surrogate’s Court in the years that Lou Rosenthal made his 10 million bucks should also be of interest.

If Brooklyn District Attorney Hynes truly wanted to provide an example of the manipulation of Brooklyn’s courts, the Feinberg situation could be the quintessential example. State Attorney General Elliot Spitzer also has a vested interest in this case, sine the State could have been robbed of substantial amounts accruing from unclaimed estates. But considering the presence of Carl Andrews among the Surrogate’s Court players, and his strange relationship with Spitzer, this is unlikely to be on Elliot’s front-burner.

We may be looking at another job for the guys who were digging up the Mafia graves on Ruby Street. It looks like they have shut down the operation where they were recently keeping an eye on the entire class of Brooklyn State Supreme Court judges having meals at the Torah Club for Judges and Lawyers under the patronage of a lawyer being investigated for bribery. They could be ready to start excavation in Brooklyn’s Surrogate Court.

We did predict several months ago that the Feds would soon move from digging up the mafia corpses in East New York to digging up the mobsters on Court Street. It already looks like we’ve called it correctly, and we have a hunch that the downtown excavation has only just begun.

Friday, February 18, 2005

Embattled judge begs for mercy

New York Daily News -
Friday, February 18th, 2005

by Nancie L. Katz

An embattled Brooklyn judge has asked New York's highest court not to suspend him while he appeals a recommendation to boot him from the bench.

On Monday, the state Commission on Judicial Conduct called for the ouster of Brooklyn Surrogate Judge Michael Feinberg, who routinely approved excessive fees given to a lawyer pal.

In a letter to the Court of Appeals, Feinberg challenged the commission's findings, which backed a Daily News probe that found he gave oversize estate fees to his buddy Louis Rosenthal.

Rosenthal was the counsel to the public administrator who handles the assets of Brooklyn residents who die without a will.

"There is not and never has been the slightest intimation that anything he has been charged with involved corruption or venality," Feinberg's lawyer, Harvey Greenberg, wrote the appeals court. "It is clear that [Feinberg] has mended his ways."

Thursday, February 17, 2005

Judges Line up for Brooklyn Surrogate Post

Crains Insider 2-17-05

JUDGES LINE UP FOR B'KLYN SURROGATE POST

Anticipating the removal of Michael Feinberg as Brooklyn's surrogate judge, several judges are pondering an effort to run for the post, which awards millions of dollars worth of legal work annually.

Civil Court Judge Margarita Lopez Torres is interested, and believes that her independence from the Brooklyn political establishment gives her the inside trackt for endorsements from newspaper editorial boards and political reformers. Supreme Court Judge Theodore Jones, Jr. is being mentioned as well. If he declines, another African-American judge would run. Supreme Court Judges Bruce Balter and Lawrence Knipel also may be candidates.

The New York State Commission on Judicial Conduct said Monday that Feinberg should be removed for approving a friend's excessive fees. Feinberg will appeal, but he will likely be suspended soon. Gov George Pataki would then name an interim surrogate, perhaps Supreme Court Judge Ira Harkavy, who is over 70 and thus not eligible to run for the seat.

Tuesday, February 15, 2005

Fiduciary System Remedies Proposed;

New York Law Journal - Feb. 9, 2005

By Daniel Wise

Sunshine is the best antidote to counter the "great concern" that "politically connected lawyers" are reaping hundreds of thousands of dollars to handle estates of those who die without wills, a blue-ribbon commission appointed by Chief Judge Judith S. Kaye said in a report issued Monday.

The 14-member commission, headed by Sheila Birnbaum of Skadden, Arps, Slate, Meagher & Flom, also called for legislation that would make mandatory existing guidelines for compensating counsel to public administrators. The administrators have overall responsibility for winding down the affairs of those who die without wills.

The spur to the commission's recommendations was a disciplinary proceeding against Brooklyn Surrogate Michael H. Feinberg for routinely awarding the counsel to the Brooklyn public administrator, Louis R. Rosenthal, fees that equal 8 percent of the estates he handled, an amount two percentage points higher than the ceiling in the guidelines.

The Commission on Fiduciary Appointments also noted that several surrogates had "candidly admitted to political and personal ties with appointees they had selected." That testimony "gives rise to a public perception of an opaque system that operates on the basis of connections and cronyism," the report said.

Oral argument in the state Commission on Judicial Conduct case against Surrogate Feinberg took place in September [NYLJ, Sept. 24], and a decision is pending. The judicial conduct commission also charged Surrogate Feinberg with approving Mr. Rosenthal's fees without required documentation.

The Birnbaum commission also proposed remedies for a problem that surfaced since its first report was issued in December 2001.

In April 2004, a Queens grand jury reported on its investigation into systemic weaknesses that allowed a guardian to steal $272,000 from his ward. The grand jury found a key problem was a lack of oversight of the guardian, lawyer Robert B. Kress, who has been disbarred.

The remedy proposed by the Birnbaum commission was greater supervision of court examiners, who are appointed by judges to oversee the work of guardians. Judges are also responsible for appointing guardians to handle the affairs of persons unable to care for themselves.

As a result of the Birnbaum commission's earlier report, any fiduciary appointed by a judge was barred from receiving additional appointments for a year after earning $50,000 within a 12-month period. State and county leaders also were prohibited from accepting appointment as were members of their law firms.

The earnings disqualification could not be applied to counsel for public administrators whose fees varied, depending on the county, from a low of $87,000 to a high of $1 million. To do so, the commission concluded, would impair the surrogates' statutory authority to appoint a sole counsel to the public administrator in their county. The statute also gives the surrogate authority to appoint more than one counsel.

Instead, the commission recommended counsel to public administrators be brought within a court system rule requiring judges to file a report of any fee awarded in excess of $500. Those reports should be made available on the Internet, the commission urged.

Chief Administrative Judge Jonathan Lippman said that the court system would move to make the rule changes recommended by the commission.

He praised the commission for "focusing on the remaining vulnerabilities in the fiduciary system" and producing recommendations that will insure that "all appointments are what they should be, a public trust."

Finding that employing court staff or outside groups to act as court examiners would be too expensive, the Birnbaum commission urged courts to assign staff to supervise the existing court examiners.

The commission, though, encouraged more projects like one under way in Westchester and another planned for Brooklyn, where non-profit groups are being appointed to act as court examiners.

The commission also noted that many examiners depend on a high volume of assignments because the fees in individual cases are low. In the Appellate Division, Second Department, for instance, an examiner overseeing a situation involving assets of $175,000 would receive a $600 fee.

To prevent the disqualification of talented examiners, the commission recommended that the $50,000 restriction on yearly earnings be raised to $75,000 for court examiners.

The commission recognized that since the system for the appointment of counsel to public administrators is not uniform statewide, achieving legislative changes is a daunting prospect. In New York City, the surrogates appoint counsel, but elsewhere the public administrators appoint their counsel with the surrogate's approval.

Nonetheless, the commission urged the passage of legislation that would make mandatory a 6 percent guideline adopted by the Administrative Board of the Public Administrator, a body created by statute, in 2002.

The board's guidelines do not have the force of law, and the commission noted that several surrogates have continued "to deviate from the schedule" and that one such instance "even led to judicial disciplinary proceedings."

The commission also urged that public administrators' counsel be subject to the same restriction as other fiduciaries barring the appointments of judges' relatives, political leaders and members of their firms.

The extension of those rules would lead to the disqualification of "several current [public administrators'] counsel," the commission said.

Bench Judge: Panel

NY POST - February 15, 2005

By Zach Haberman and Dareh Gregorian

A Brooklyn judge who lined his buddy's pockets with millions in dead people's money should be booted from the bench, a state disciplinary panel has ruled.

Surrogate Court Judge Michael Feinberg "irredeemably damaged public confidence in the integrity of his court" and "engaged in misconduct that cannot be countenanced," the state Commission on Judicial Conduct found in a decision made public yesterday.

"A public sanction less than removal for such egregious misconduct would be wholly inadequate," it said.

The commission recommended the removal after finding Feinberg, 61, had awarded "excessive and overly generous" fees — more than $2 million — to longtime friend and former judge, Louis Rosenthal.

The action comes seven years after The Post first reported that Feinberg was rewarding political pals with lucrative court appointments.

Rosenthal had worked on and given money to Feinberg's campaign, The Post reported.

After getting that donation, Feinberg appointed Rosenthal as counsel to the public administrator, a post that does legal work for estates of people who died without wills or heirs.


As counsel, Rosenthal was legally entitled to collect up to 6 percent of the gross value of a person's estate, but the commission found Feinberg routinely allowed Rosenthal to collect 8 percent.

"These excessive fees came from the pockets of beneficiaries of estates that [Feinberg] had a duty to protect," said the report, which also blasted his "incredible, evasive and unreliable" testimony before the commission last year.

Feinberg maintained he wasn't familiar with the rules over Rosenthal's pay because he'd just "skimmed" the judicial guidelines. The commission called his account "unconvincing and, if true, inexcusable."

Feinberg's lawyer refused comment.

Neither Feinberg nor Rosenthal has been charged criminally and the Brooklyn DA's office refused comment.

Oust judge in fee flap: watchdog

Daily News - February 15th, 2005
By Nancie L. Katz

The state's top judicial watchdog recommended yesterday booting a Brooklyn judge who routinely approved excessive fees to a lawyer pal.

In a scathing report, the Commission on Judicial Conduct said Brooklyn Surrogate Judge Michael Feinberg effectively deprived the heirs of Brooklyn residents who died without wills of $2 million.

The money was diverted to Louis Rosenthal, the counsel for Public Administrator Marietta Small, in the form of sky-high fees, said the panel.

A Daily News probe revealed the arrangement between Feinberg and Rosenthal.

Feinberg could be suspended by the state's highest court as early as Friday pending an appeal.

Rosenthal, a former law school buddy appointed by Feinberg, raked in about $9 million in legal fees between January 1997 and May 2002. The panel found that at least $2 million of that was excessive, and also found that Rosenthal never filed the required documents showing what he did to earn his fee.

"For a surrogate, entrusted with enormous power over the lives and fortunes of many, the ethical transgressions revealed ... are simply intolerable," it said. "A public sanction less than removal for such egregious conduct would be wholly inadequate."

The commission noted its two-year inquiry was sparked by a 2002 News' exposé that found Feinberg routinely gave Rosenthal 8% or more of an estate's worth. That was despite a 6% cap Feinberg's predecessors had agreed to under pressure from the state attorney general's office.

It said Feinberg's excuse that he was unaware of the limits as "not credible ... and evasive."

The commission's findings could shape how much Attorney General Eliot Spitzer, who is conducting a separate probe, would demand Rosenthal pay back.

Neither Feinberg, his lawyer nor Rosenthal returned calls yesterday. Rosenthal's lawyer declined to comment.

Surrogate Feinberg, RIP

Daily News - Editorial
February 15, 2005

Brooklyn Surrogate Judge Michael Feinberg allowed an old pal to engage in court-sanctioned graverobbing, the state Commission on Judicial Conduct concluded yesterday in calling on the state's highest court to bounce Feinberg from the bench. We concur.

Feinberg's unfitness for office has been clear since Daily News reporters Larry Cohler-Esses and Nancie Katz disclosed in 2002 that he had allowed lawyer Louis Rosenthal to charge exorbitant fees for overseeing the estates of Brooklynites who died without wills. The commission tallied the ripoff at $2 million.

For clubhouse pols, being named surrogate is like dying and going to patronage heaven. Surrogates preside over the disposition of estates and get to hand out thousands of assignments to lawyers. Feinberg did such a favor for Rosenthal, with whom he's been chummy since law school, and then let him take 8% out of estates, rather than the 6% legal max - without even filing the required paperwork.

According to the commission, Feinberg defended himself by pleading ignorance of the law (which should be a firing offense) and was otherwise "incredible, evasive and unreliable." Which means the Court of Appeals should also render him unemployed.

Monday, February 14, 2005

Panel: B'klyn judge should be booted

Newsday - February 14, 2005

By Anthony M. Destefano

A state judicial oversight body has recommended that Brooklyn Surrogate Judge Michael Feinberg be removed from the bench because he gave overly generous fees to a longtime friend without having the proper documentation filed.

Nine members of the State Commission on Judicial Conduct found that Feinberg, who was elected Brooklyn surrogate judge in 1996, committed misconduct in awarding millions of dollars in fees to attorney Louis R. Rosenthal.

Six members voted for his removal while three dissented and argued the appropriate sanction was public censure.

The commission has 11 members chosen by a combination of legislative, gubernatorial and judicial appointments. Two members didn't take part in the Feinberg matter.

The commission's ruling will likely be appealed by Feinberg to the Court of Appeals, which has the final say. The state's high court will also decide if Feinberg should be suspended without pay if he appeals the commission ruling.

According to evidence presented during seven days of hearings before a referee, Feinberg allowed Rosenthal, a longtime friend whom he appointed as counsel to the public administrator in 1997, to submit fee requests without required affidavits detailing the work done and why the fees were justified.

Public administrators handle estates of people who die without wills and they require assistance by a counsel appointed by the Brooklyn surrogate.

From January 1997 to May 2002, Feinberg awared fees to Rosenthal totaling about $9 million which were paid from estate being handled by the Public Administrator.

"In awarding fees to his long-time friend whom he had appointed to the lucrative position of Counsel to the Public Administrator (Feinberg) had a responsibility to make sure that the fees were appropriate and untainted by the appearance of favoritism," the commission said. "By violating those duties, respondent committed a gross dereliction of his duties to be faithful to the law and maintain professional competence in it."

By his actions, Feinberg conveyed the appearance that his actions were affected by favoritism and friendship, the commission stated.

The commission said about $ 2 million in fees paid to Rosenthal were excessive, often amounting to 8 percent of the assets of a large estate. That percentage was two points above the normal maximum allowed, the commission stated.

Feinberg had told the commission that he had been unfamiliar when he took his job that he had to require detailed fee affidavits, an explantion the commission rejected as "incredible and unconvincing."

The commission was also troubled by what they claimed was Feinberg's "lack of candor" during his testimony. Commissioner Lawrence Goldman agreed that Feinberg committed misconduct by not requiring Rosenthal to file the required documentation.

But he said that he disagreed that the evidence showed Feinberg committed misconduct with excessive fees. Goldman voted to censure Feinberg, as did commissioners Raoul Felder and Justice Daniel F. Luciano.

Neither Feinberg's attorney Harvey L. Greenberg nor Rosenthal returned telephone calls for comment.