Brooklyn Surrogate's Court 2005

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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.

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