Brooklyn Surrogate's Court 2005

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

Thursday, May 26, 2005

Brooklyn Court's Routines Play Role in Feinberg Case

Brooklyn Court's Routines Play Role in Feinberg Case

New York Law Journal May 26-2005
John Caher


ALBANY — The battle over Michael H. Feinberg's judicial career hinges on whether the Brooklyn surrogate did anything wrong in awarding millions of dollars in fees to a close friend and, if so, the magnitude of the alleged offense.

Briefs filed at the Court of Appeals reveal significant factual discrepancies over what Surrogate Feinberg did and to what extent, if any, he overpaid Louis R. Rosenthal, the former counsel to the public administrator. They also reveal a bird's-eye view of questionable Surrogate's Court practices in Brooklyn that have apparently gone on for decades.

To a large extent, the briefs deal with a fundamental issue of judicial discretion, and whether the Commission on Judicial Conduct should be second-guessing a judge's discretionary actions. But they also delve into simple arithmetic, and whether Surrogate Feinberg awarded anywhere near the "millions" in excess fees alleged by the commission.

The commission claims Surrogate Feinberg ignored both the law and the bounds of propriety in enriching Mr. Rosenthal, and that the surrogate's behavior was so egregious that no discipline short of removal would send the right message to the judiciary and the public.

But Surrogate Feinberg insists he did nothing other than follow longstanding Brooklyn practice in awarding the fees. And while he admits overlooking a "ministerial" chore in granting fee requests without mandatory affidavits, he claims the payments to Mr. Rosenthal were justifiable and only a fraction of the amount alleged by the commission.

On June 9, the Court of Appeals will attempt to sort it all out when it hears Surrogate Feinberg's appeal of a commission determination that he should be ousted from the judiciary. The matter promises to be hotly contested on both a legal and factual basis, as the Court is called upon for a relatively rare exercise of its fact-finding power in a judicial misconduct case.

The case centers largely on how lawyers who administer the estates of those who die without valid wills are paid in Brooklyn.

Records show that in the borough, the counsel to the public administrator — the office charged with managing intestate affairs — has historically received as compensation a share of the estate.

In the early 1970s, Surrogate Nathan Sobel began awarding then-counsel Hesterberg & Keller of Brooklyn a 7 percent share of the smaller estates and an 8 percent cut of those over $60,000. Surrogate Sobel's successor, Bernard M. Bloom, continued that practice, as did Surrogate Feinberg.

Traditionally, attorneys were allowed to draw off the larger estates to make up for their meager earnings on the smaller estates — a practice Surrogate Feinberg justified in his brief as the "Robin Hood effect."

Hesterberg & Keller, which held the counsel position for about 40 years, was twice asked by the attorney general to reduce its fees to 6 percent. Under compromise agreements in 1988 and 1994, the firm agreed to restructure its fee requests. Typically, the firm would initially request 6 percent of the gross estate up to the time of the accounting, and then ask for another 2 percent through a Post-It note for work done between the accounting and the final decree. It routinely — but not always — got 8 percent, according to court records.

When Surrogate Feinberg was elected in 1996, Hesterberg & Keller's procedures had been harshly criticized in a report by the New York City comptroller, according to court records. Surrogate Feinberg dismissed Hesterberg & Keller and gave the business to Mr. Rosenthal, a longtime friend from Brooklyn Law School.

Surrogate Feinberg and Mr. Rosenthal celebrated holidays and family milestones together, served together on the bench when both were Civil Court judges and were political allies, records show.

Between 1997 and 2002, Mr. Rosenthal handled hundreds of estates for Surrogate Feinberg. Like Hesterberg & Keller, Mr. Rosenthal normally requested 6 percent at the outset and then put in for the additional 2 percent on a Post-It note on the final decree. And, like Hesterberg & Keller, Mr. Rosenthal's requests were routinely approved.

A potentially critical difference, however, is that Hesterberg & Keller was required by the court to submit the mandatory affidavits. Mr. Rosenthal, who collected roughly $8.6 million in fees, was not.

List of Allegations

The case against Surrogate Feinberg rests on several allegations. The commission contends that he:

• Fired the well-qualified firm of Hesterberg & Keller in order to give the work to Mr. Rosenthal, who, according to the commission, got a position for which he was unqualified because he and Surrogate Feinberg had been friends since the early 1960s. That, according to the commission, conveyed the impression that the surrogate was favoring a friend.

• Persistently violated the Surrogate's Court Procedure Act, which requires filing an affidavit of legal services justifying the appointment of counsel and fees to be paid. Mr. Rosenthal was never required to filed such an affidavit in the 5-1/2 years at issue and Surrogate Feinberg made no effort to determine if the work and billings were justified, according to the commission.

• Ignored the 6 percent cap negotiated by the attorney general and Surrogate Bloom as well as a 5 percent cap on estates over $300,000.

• Ultimately permitted Mr. Rosenthal to divert more than $2 million in excessive fees — funds the court should have protected for the heirs or, where there were no heirs, the state.

Distilled to their essence, there are basically two broad questions before the Court of Appeals. One deals with Surrogate Feinberg's practice in awarding fees; the other deals with the strongly disputed computation of the alleged overpayments to Mr. Rosenthal.

On the first issue, the commission portrays Surrogate Feinberg as a judge who "unceremoniously and summarily" dropped Hesterberg & Keller to give a "plum appointment" to a friend and political ally, "with no search, no interview and no semblance of merit selection."

Commission Administrator and Counsel Robert H. Tembeckjian, in a brief filed last week, dismisses as "preposterous" Surrogate Feinberg's argument that his award of an 8 percent flat fee was a legitimate exercise of judicial discretion. He suggests there was no exercise of discretion, just a rubber-stamp approval of whatever Mr. Rosenthal requested.

"In petitioner's court, a simple calculator, not an independent judge, was all that was necessary to dispense millions of dollars," Mr. Tembeckjian argues.

Mr. Tembeckjian also suggests that Surrogate Feinberg's awarding of those fees without the required affidavit effectively concealed his generosity and made it difficult for the attorney general, which is served with all estate fee requests, to fulfill its watchdog role.

"Petitioner's argument that the affidavit requirement is 'ministerial' completely misses the point," Mr. Tembeckjian said. "Without affidavits, there would be no reliable way to determine what legal work Counsel had done and whether a fee was earned or deserved. . . . That the Attorney General did not put a stop to it may be explained by the limited nature of the Attorney General's role in these estates, and the manner in which the records were sent to the Attorney General by Rosenthal."

Amount of Fees

The commission's allegation that Mr. Rosenthal collected about $2 million more than he was due is based on the charge that Mr. Rosenthal received an 8 percent commission on all 475 cases at issue. Repeatedly, the commission — which split 6-3 in deciding Surrogate Feinberg should be removed rather than censured — referred to the "millions" it contends were wrongly paid to Mr. Rosenthal as justification for the surrogate's removal.

Since then, however, the attorney general has sent a letter to Mr. Rosenthal stating that "we are not adopting the $2 million figure that appeared in the [Commission on Judicial Conduct] Opinion" and instead are willing to settle for restitution of $729,800.

After the Law Journal reported on that letter (NYLJ, May 18), the attorney general's press aide wrote a letter to the newspaper (NYLJ, May 20) explaining that the figure cited in the letter was based on some "subset" and was not necessarily reflective of the entire alleged overpayment.

Mr. Tembeckjian stands by his calculation, but says in his brief that the exact amount of the alleged overpayment is not the heart of the issue — despite the commission's emphasis on the $2 million figure in its call for removal.

"Any judge who would dispense millions of dollars in funds entrusted to the court, without regard to explicit statutory criteria and on the basis of Post-It notes in lieu of affidavits, is guilty of egregious misconduct and should be removed from office, without regard to whether the total overpayment to a particular person was $2 million or $1 million or half a million," Mr. Tembeckjian wrote.

Surrogate Feinberg's attorney, Henry M. Greenberg of Greenberg Traurig, counters that the amount is vitally important, especially since the commission seemingly relied on what he contends is a wildly inflated number in calling for the judge's removal.

Mr. Greenberg suggests that Mr. Tembeckjian is guilty of the same offense he accuses Surrogate Feinberg of: making a judgment on the propriety of fees without any determination of whether they were justified in any particular case.

"Not once was a question raised about the Counsel's fees by the New York State Attorney General, whose office knew precisely how much Surrogate Feinberg awarded in every case," Mr. Greenberg wrote in his brief. "Not once was a complaint uttered by the New York City comptroller, whose office twice issued audit reports on the operations of the Kings County [public administrator]."

According to Mr. Greenberg, the commission's assumption that Mr. Rosenthal collected an 8 percent commission in all 475 cases is factually and demonstrably wrong.

Mr. Greenberg notes that during the early years, Mr. Rosenthal split his fee with Hesterberg & Keller. Also, Mr. Greenberg contends, an 8 percent commission was not awarded in all cases. And, the attorney claims, after the Administrative Board of the Courts in October 2002 adopted a sliding fee scale for Surrogate's Court matters — before Surrogate Feinberg was targeted by the commission — Surrogate Feinberg applied that new scale not only prospectively, but retroactively. The attorney said Surrogate Feinberg recognizes he erred in failing to demand affidavits of legal service and regrets what amounts to oversight but not misconduct.

Additionally, Mr. Greenberg accused the commission of attempting to "destroy" the "distinguished career" of a judge because it thinks 8 percent is excessive, notwithstanding the fact that "no statute, court rule, regulation or appellate decision precluded an 8 percent fee." He added that since Surrogate Feinberg indisputably had the discretion to award higher fees in appropriate cases, it is not up to the commission to decide if those fees were appropriate.

Claims of Overreach

Surrogate Feinberg's case has attracted the attention of judges who complain that the commission has strayed too far into the realm of judicial discretion.

In recent years, some members of the commission, several judges and even some Court of Appeals judges have expressed concern over the panel's reach. Last year, for instance, when a 4-3 Court removed Troy City Judge Henry Bauer for setting excessive bails, a dissenter said a review of a judge's bail decisions was well "outside the commission's scope of authority."

A surrogates' group makes a similar argument with regard to the awarding of counsel fees in estate matters.

"The implications of the Commission sanctioning a judge on errors allegedly committed solely in discharging the responsibilities of his judicial office are . . . both far reaching and ominous," wrote retired Court of Appeals Judge Howard A. Levine, now of Whiteman Osterman & Hanna in Albany and counsel to the Surrogate's Association, which is supporting Surrogate Feinberg in an amicus brief.

"Calling a judge to answer for purely legal error to a non-judicial commission having the power to prosecute, determine and enforce even the ultimate sanction of removal inevitably will have a chilling effect on the independence of the entire judiciary as they make rulings in the cases before them," argued Mr. Levine and James B. Ayers, also of the Whiteman firm.

Feinberg v. State Commission on Judicial Conduct is first on the June 9 calendar, slated for argument at 2 p.m. in Albany. The Court of Appeals is likely to decide the case by early July.

Saturday, May 21, 2005

Surrrogate Court Judges Rush in to Protect a Brother

Footnotes (www.footnotesny.com)
SURRROGATE COURT JUDGES RUSH IN TO PROTECT A BROTHER
By Maurice Gumbs. May 21,2005

From time to time we have commented on the extreme loyalty that Brooklyn judges have to each other. The Brooklyn Judiciary Wall of Silence is more solid and impenetrable than that of the Police. We do not recall even the hint of any sitting judge who has broken that Wall and volunteered information about the wrongdoing of another judge.

In fact, apart from Judge Margarita Lopez Torres, not a single Brooklyn judge has had the courage to reject the sleazy, corrupt actions of Brooklyn’s County bosses. Former Judges Yellen and Sikowitz have now accused County Bosses Norman and Feldman of criminal extortion.. But we find no honor or courage in the protest of these ladies. They made their allegations only after their deal with the Bosses went sour.

The attitude of these Judges is bothersome. If there is any citizen who should shine the light on the dark corners of corruption we expect it would be the judge who stands in the place of God.

But even long after they have retired from the bench, so-called “righteous” oldtimers like Comptroller Billy Thompson’s father maintain a prosperous silence and decline to comment on sordid transactions which they should have been in a position to observe. So far, only Judge Jones, now preparing to be confronted by the celestial video-tapes, has suggested that judgeships were being bought and sold as a matter of custom. However, even Judge Jones has mentioned no names, and may be sitting on a best-selling auto-biography...JUDGE JONES AND THE DEVIL.

In keeping with the shabby fraternity rules, suspended Surrogate Court Judge Mike Feinberg now has powerful and wealthy friends coming to his rescue. The May 9 edition of the Brooklyn Law Journal announced that the State Association of Surrogate Court Judges had filed an “Amicus” brief in defense of their brother, Mike.

The image of judges brazenly banding together to support one of their number who has been found guilty of misconduct is a disturbing one. It is reflective of the depth to which New York State’s judiciary system has sunk(or stunk) during Chief Justice Kaye’s watch. And it may be a signal for her to increase scrutiny of the state's Surrogate Courts. Better yet..get out and let someone else try to clean up the shameful obscenity that has developed under her watch.

Surrogate Judges are the “blue bloods” and the princes of the New York State Judicial system. Their Courts control more money than any other Courts. So Feinberg’s brother judges will be able to provide him with the best legal expertise that money and status can buy..

Howard Levine, the attorney who presented the Amicus brief in Feinberg’s support, was once a Court of Appeals Judge. Levine is now the distinguished senior counsel at one of the nation’s most prestigious law firms, Whiteman, Osterman, and Hanna. His Law firm does lobbying for companies like Johnson and Johnson, American Express, Hertz, MCI and a bunch of other major corporation. Get the picture of the $$$$ involved here.

Having a former Court of Appeals judge on their staff must be a great asset for firms which specialize in lobbying. And if you have a case before the Court of Appeals it sure doesn’t hurt, to have a member of the Old Boys Club working with you, does it? And who knows whether Howie might be willing or able to pull a few strings for his low-paid brothers and sisters when they leave the bench.

The Commission on Judicial Conduct voted to remove Feinberg from office after finding that he had given his close friend Lou Rosenthal excessive commissions which amounted to millions of dollars within just a few years. We estimate that Rosenthal collected as much as $10,000,000 in fees and payments within the space of 4 or 5 years. And Lucky Lou seemed on track to rake in maybe $40,000,000 by the time Judge Feinberg’s term in office ended.

Attorney Howard Levine’s brief now offers two major arguments in defense of Feinberg:

1. That the action of the Judicial Commission was illegal since only the Court of Appeals had the right to review “judicial decisions” made by Feinberg.

2. That the office of the Attorney General Elliott Spitzer was “party to the proceedings” and Spitzer never appealed.. Suggesting that the Attorney General essentially approved of the excessive fees that Feinberg was giving to Rosenthal. In effect, Levine claims that the Attorney General’s Office had determined Feinberg’s actions to be legal.

The written rules mandate that the Surrogate Court comply with the established schedule of fees and the requisite reporting mechanism. . Lou Rosenthal was required to submit an affidavit of legal services. Judge Feinberg was required to review Rosenthal’s reports before he signed off on payments. In addition, fees were restricted to a maximum of 6% of the Surrogate estate unless extraordinary services had been substantiated. And of course, Judge Feinberg was required to demand the proof of this extraordinary service rendered before authorizing payment.

None of Judge Feinberg’s required duties in these matters constituted protected “judicial decisions.” Judge Feinberg did not have the discretionary power to ignore the limitation on fees or the requirement for submission of affidavits of service. Feinberg did not have the prerogative to sign checks for whatever amount Rosenthal instructed him to pay….without even asking what they were for, or reviewing the documents submitted.

The Judicial Commission is empowered to conduct Hearings to determine whether judges have violated the Rules Governing Judicial Conduct. The investigation which took about 3 years resulted in a finding that Feinberg was guilty of gross violation of these rules. The Commission confirmed that Rosenthal automatically billed Surrogate estates the 6% maximum no matter how little work he did. They cited at least one example of Rosenthal getting paid more than the heirs of an estate actually collected for themselves.

The report suggests that in many of these cases Rosenthal actually had very little work to do. Yet he still extorted the maximum percentage from the estates of many poor people who needed every penny that was left to them.. In addition, Rosenthal automatically added 2% to each bill suggesting that he had done extraordinary work on every one of his cases. The Judicial Commission found that for several years Rosenthal never submitted affidavits of work done and Feinberg never asked for them. The testimony indicated that Rosenthal simply submitted bills with post-its on them for Feinberg’s signature, and Feinberg just rubber-stamped away millions of dollars.

Feinberg was found to be grossly derelict in his duty as Surrogate Judge. But even worse, most, if not all members of the panel condemned the judge as being “evasive, unreliable and incredible.” That language appears to be just a euphemism for the more serious crime of perjury. And Feinberg should consider himself fortunate not to be facing criminal charges in these days when a guy can be convicted and face a jail sentence for voting from the wrong address.

This whole situation smelled of corruption and “rip-off” from the very beginning.

Lou Rosenthal had been Feinberg’s personal friend and “family” since college. When Feinberg was elected to Surrogate Judge in 1997, Rosenthal promptly requested the position of Surrogate Counsel. Feinberg immediately dumped the incumbent counsel and gave Rosenthal that job. And it is easy to imagine that this was a plot created by Feinberg’s sponsors even before he took office.

It seems impossible to believe that the County Leaders who are now on trial for shaking down judges would allow Lou Rosenthal to walk away with unshared millions of Surrogate dollars when they were responsible for putting his boss, Surrogate Court Judge Feinberg in office.

Sunday, May 15, 2005

Getting Rid of Bad Judges

NY TIMES
Editorials
May 15, 2005

GETTING RID OF BAD JUDGES

While there are many good judges in New York State, there are a few bad judges, and getting rid of them is not easy. Very rarely does the Commission on Judicial Conduct decide to remove a jurist from the bench.

One of those rare cases involved Michael Feinberg, a Surrogate's Court judge in Brooklyn, who was suspended earlier this year. Now, because of a strange quirk in the law, the choice of Mr. Feinberg's successor could be left to the same Brooklyn Democratic Party boss who picked Judge Feinberg to run for the post in the first place, Assemblyman Clarence Norman Jr.

The commission held that Judge Feinberg awarded millions of dollars in "excessive" legal fees to a friend he had appointed to deal with the estates of those who died without leaving a will. Judge Feinberg has appealed, and the New York Court of Appeals has agreed to hear arguments on June 9.

The timing of the court's decision is important, especially because this is an election year. If it rules against Judge Feinberg, but does so between July 7 and Aug. 8, the power to choose his successor essentially remains with Brooklyn's party leaders. During that one month, Mr. Norman's party can pick a candidate to run for the surrogate's seat in November as a Democrat, and because it is a Democratic area, that person will almost certainly be elected.

If the decision comes before midnight July 7, there would be time to organize a primary with, conceivably, more than one candidate. After Aug. 8, the governor chooses the successor, who would serve until elections next year.

The commission's decision to remove Judge Feinberg sent the right message to patronage judges in Brooklyn and elsewhere: you can no longer hire your friends and cheat the system and expect the political powers to shield you.

But if the appeals court turns around and hands the power to choose a judge back to the very people who appointed Judge Feinberg in the first place, it will send exactly the opposite message: that politics, once again, trumps justice in New York State.