Brooklyn Surrogate's Court 2005

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Thursday, June 30, 2005

Judge Ousted. Voters Excluded.


New York Civic (
By Henry J. Stern
June 30, 2005

Two major events have occurred in the last week relating to one of the city's most disturbing centers of official and unofficial misconduct -- the Brooklyn judiciary.

On Friday, June 24, in the waning hours of the session, the Governor and Legislature rushed through a bill creating a second surrogate for Brooklyn. They timed the effective date of the law to guarantee that the new judge will be chosen by the Brooklyn Democratic machine. Assemblyman Joseph Lentol is presumed to be the designee, which will create a vacant assembly seat. Nature abhors a vacuum.

On Monday, June 27 the Court of Appeals unanimously affirmed the decision of the State Commission on Judicial Conduct to remove Judge Michael Feinberg from the position of Kings County Surrogate (the judge who oversees estates of the dead). The Court of Appeals decided the case twenty days after the oral argument, and may have acted promptly in order to allow an open primary to select a successor to Judge Feinberg.



It is not yet widely known, but the New York State Legislature, as it rushed to adjourn, passed a bill drafted in concert with Governor Pataki, creating twenty-one additional judgeships in New York State, including a second Surrogate for Kings County. Of the 62 counties in the State of New York, only one (New York County) has two surrogates. All the others have one surrogate. Unless there has been a sudden increase in morbidity in Brooklyn, we see no justification for a new surrogate, except greed.

The new and superfluous position of second Surrogate, will pay $136,700 for the judge (likely to rise next year), with clerks, support staff, etc., It will cost taxpayers between $500,000 and a million dollars. Sweeter still, there will be an additional source of patronage for Brooklyn politicians and their favorites. This will provide more opportunities for jobholders to express their gratitude to those who have been helpful to them.

However, as if the waste of tax funds were not sufficiently egregious, the new law was precisely drafted to take effect August 1, 2005, which will preclude a primary election to fill the position..

Al Baker, in an article on the legislature in the June 25 Times, wrote: "Indeed, with little discussion or chance for debate, a last-minute bill was passed to create several new judgeships, including adding a second surrogate's court in Brooklyn. Critics said that the timing of the measure meant that the political parties and their leaders, including Assemblyman Clarence Norman Jr., the Brooklyn Democratic leader, would have great sway in picking the nominees."

August 1 may be a busy day for Mr. Norman, because the Post reports today, in a short piece by Zach Haberman on p21, DEM BOSS READY FOR DAY IN COURT, that jury selection is supposed to begin that day in his trial for failing to report campaign expenses paid for by a political-action committee. But even people who believe that Norman is dishonest believe that District Attorney Charles J. Hynes' case against him is weak, and he may gain strength from an acquittal, or the dismissal of the charges against him by a grateful judge, who may even be right on the merits.

The August 1 effective date prevents lawyers who would like to run for surrogate in the September 13 primary from circulating petitions. Under the 2005 political calendar, petitions are due July 7, and on that day there will be no vacancy other than the one caused by the removal of Judge Friedman. The machine will most likely have its own candidate for that position as well. The winner will serve a 14-year term, unless he turns 70 sooner.

The Albany Times Union's James M. Odato wrote last Saturday that "Pataki will be able to fill 14 new Court of Claims posts, likely rewarding loyalists in his administration and other GOP benefactors... Four new state Supreme Court posts for the greater New York City region, three new family court posts in Orange County, and a new surrogate's court job in Kings County. Brooklyn Democrat Joseph Lentol, a veteran assemblyman, already said he'll run."

Lentol was first elected in 1972 to represent Flatbush, East Flatbush, and Canarsie, in central Brooklyn, and has represented Williamsburg, in north Brooklyn, since 1983. His father, Edward, was an assemblyman and later a state senator. His grandfather, Joseph, a barber, was an assemblyman from 1919 to 1920. In those days, legislators had other occupations which were not related to politics or public relations.

Today's Joe Lentol, now in his 33rd year, is a friendly, well-liked legislator, regarded as a faithful ally of Speaker Silver, who made him chair of the Codes Committee because he knew he could count on him. Since he was born in 1943, he will only be able to serve through 2013, which will mean an eight-year term. He will no longer be required to travel to Albany to shiver in the cold or swelter in the heat.. Driving to the Capitol is time-consuming and burdensome for many legislators, although it is a source of income for a few.



The second story was the unanimous affirmation by the Court of Appeals, the state's highest court, of the removal of Kings County Surrogate Michael Feinberg for awarding a close personal friend since their Brooklyn Law School days, Louis Rosenthal, nearly $9 million in fees as counsel for the public administrator, at the rate of 8% of the estate, not the customary 6%.
These awards were made without the supporting affidavits which are required to be submitted by the attorney to show how much work he did on the matter.

The Court of Appeals cited a Daily News exposé in its opinion, which led the News to headline its story on the decision, NEWS HELPS GET DIRTY B'KLYN JUDGE AXED. The article, written by Nancie L. Katz, appeared at the bottom of page 14, which is not the most visible spot in the paper. But The News was the best of the five dailies in its coverage.

The Daily News had denounced Judge Feinberg in a June 8 editorial, with the colloquial but apt headline: BENCH THIS JUDGE PRONTO. Last year, the News ran a series on corrupt judges in Brooklyn. One went to jail, but kept his pension. Three others are embroiled with the law in one way or another outside of the fact that they hear cases.

Newsday covered the story on p18, in an article by Anthony M. DeStefano, HIGH COURT OUSTS B'KLYN JURIST OVER STATUTORY FEES. "One Brooklyn attorney ...said he believed the Court of Appeals acted quickly on the Feinberg matter -- just 20 days after oral arguments -- to make sure that primary election petitions can be filed in time. Otherwise, embattled Brooklyn Democratic party boss Clarence Norman would be able to pick the nominee..."

The Post gave the matter three long sentences at the bottom of p11, headlined B'KLYN JUDGE AXED IN $CHEME. Kenneth Lovett quoted the Court of Appeals: "The record reflects not mere lapses or errors in judgment but a wholesale failure of [Feinberg's] duty, reflecting an indifference if not cynicism toward his judicial office."

The Sun ran an Associated Press dispatch, COURT UPHOLDS BROOKLYN JUDGE'S REMOVAL FROM BENCH, under Albany in its New York Desk column on p4. "From January 1997 to May 2002, Mr. Rosenthal received more than $2 million in excessive fees despite never filing any affidavit of legal services that would have supported the fee requests, the Commission [on Judicial Conduct] said."

The Times ran the story as the fifth Metro Brief on pB6. The one-paragraph story, under Michael Cooper's byline, is headed: ALBANY: APPEALS COURT UPHOLDS JUDGE'S REMOVAL. Cooper quoted a powerful line in the court's opinion that Judge Feinberg had "debased his office and eroded public confidence" in the judiciary.

For the full story, read the opinion of the Court of Appeals.

One aspect of this case is that Judge Feinberg was not accused of taking money personally. He may or may not have received some financial reward from Rosenthal, the beneficiary of his largesse at the expense of the estates of people who had the misfortune to die in Brooklyn without leaving a will.

Judge Feinberg had been on the bench since 1982, and was elected Surrogate Judge in 1996. At the time, Rosenthal was regarded as a potential candidate for Surrogate. In the end, he actively supported Feinberg's nomination by the Democratic Party. Feinberg's chief backer was County Leader Clarence Norman, and Feinberg's victory in a sharply contested primary solidified Norman's hold on the Brooklyn Democracy (as the party organization was quaintly described years ago).

Before he was enrobed, Feinberg was a Democratic district leader in central Brooklyn. His predecessor as Surrogate, Bernard Bloom, had been district leader of the same club. Dynastic issues arise occasionally in the succession to political jobs and offices in Brooklyn.

The Democratic nomination is tantamount to election in Brooklyn, just as sixty years ago it was tantamount to election in Mississippi. That is no longer the case in Mississippi, where state offices are now largely held by Republicans. After Feinberg took office in Brooklyn, he appointed his buddy Rosenthal as Counsel to the Public Administrator, a position whose fees far exceed a judge's salary, although not necessarily his entire income.

The removal of a sitting judge is a milestone in the pursuit of judicial corruption. It is widely known that the Brooklyn judiciary, largely chosen with the concurrence of Clarence Norman, does not consist of pillars of rectitude.

Some are reported to have paid large sums to assure their nomination, ostensibly for the expenses of their campaign. They may well seek opportunities to recoup their investment in the robe. The situation clearly requires further investigation. It was the United States Attorney for the Eastern District whose office caught Councilman Angel Rodriguez as a bribe taker. He was convicted of a felony, removed from office and sent to federal prison. Our first articles, written on March 30 and April 5, 2002 were written about this case. See how the columns have evolved since then.

Rodriguez, BTW, was Clarence Norman's candidate for City Council Speaker against Gifford Miller, the Bronx-Queens leaders' candidate. Fortunately, Miller won, and the city was spared the spectacle of its Council Speaker being arrested and convicted of bribery.

The Augean stables of Brooklyn have not yet been cleaned. Will it require a Hercules to perform the labors necessary to secure equal justice and fair treatment for litigants, free and open primaries, judges chosen on merit and competence rather than clubhouse connections? Manhattan has benefited from the reform activities of the last thirty years. In Brooklyn, although reform judges have been elected, e.g., the late Ted Diamond and the late Bernard Fuchs, the battered and disreputable county organization is still a major, often controlling influence in the selection of judges.

The struggle for honest government has gone on for hundreds of years, and will continue longer than we will be here. There have been victories and defeats, and there will be many more.
This is not a conflict between the left and the right, or capitalism against socialism. It is the effort to secure integrity and transparency in public affairs, and to promote the public welfare as opposed to the personal benefit of office holders, their relatives and their bosom buddies.

Entrenched power, however, is strong and highly organized, that is how it became entrenched. There is a disciplined cadre of those who live off the system and await preferment from those whose orders they follow, cheerfully or grudgingly. Reform movements wax and wane, because when reformers get power and jobs, they often morph into regulars, although they retain a greater degree of righteousness and indignation at the sins of others. When the sinners overreach, the public will replace them. No matter what schemes are employed to perpetuate political power (gerrymandering, the complex election law, arbitrary disqualification), we maintain a possibly primitive faith in the voters' desire to do the right thing, if they only knew.

Feinberg Loses Fight to Remain on Bench

New York Law Journal - June 30, 2005
by John Caher

ALBANY - In a harshly worded opinion, the Court of Appeals yesterday ended Brooklyn Surrogate Michael H. Feinberg's judicial career. It held that his awarding of millions of dollars in attorney's fees to a friend without demanding the affidavits required by law constituted removable misconduct.

The Court said in a unanimous per curiam opinion that in rubber-stamping - with no oversight - some $8.5 million in estate commissions, to attorney Louis R. Rosenthal, Surrogate Feinberg "demonstrate[d] a shocking disregard for the very law that imbued him with judicial authority." It rejected with apparent disdain Surrogate Feinberg's defense that he had neglected to read the Surrogate's Court Procedure Act (SCPA) and was simply ignorant of his judicial responsibilities.

"Petitioner disregarded the clear statutory mandates of his office repeatedly over the course of more than five years and 475 proceedings, educating himself on the SCPA requirements only in response to a newspaper's investigatory series," the Court said. "Petitioner's consistent disregard for fundamental statutory requirements of office demonstrates an unacceptable incompetence in the law."

Yesterday's ruling was a major victory for the state Commission on Judicial Conduct, which has increasingly invoked its power to punish judges for legal error and professional incompetence. There was never an allegation that Surrogate Feinberg in any way personally benefited from his conduct, only that he had chronically ignored legal requirements in approving millions of dollars in commission for a close personal and political friend.

A key question was whether the commission overstepped its bounds in pursuing a judge for legal errors. Yesterday, the Court said it did not with a key finding that legal error and misconduct are "not necessarily mutually exclusive." The decision seemingly gives the commission license to continue its pursuit of judges whose incompetence or legal neglect crosses the line into judicial misconduct.

Matter of Feinberg v. New York State Commission on Judicial Conduct
, 125, is rooted in a newspaper expose.

The commission launched its inquiry, after the New York Daily News reported on Surrogate Feinberg's awarding of millions of dollars in commissions to Mr. Rosenthal, a law school friend and political contributor whom the judge had appointed counsel to the public administrator.

The commission found that Surrogate Feinberg appointed a marginally qualified friend to a lucrative post, signing off on about $8.5 million in commissions without ever requesting the mandatory affidavit of legal services and virtually always awarding 8 percent of the estate. That is 2 percent more than the norm in New York City's other four boroughs, and 2 percent more than the amount agreed to by the state attorney general and the predecessors of Surrogate Feinberg and Mr. Rosenthal. That extra 2 percent garnered Mr. Rosenthal about $2 million in excessive fees, according to the commission's calculations.

Typically, Mr. Rosenthal requested the extra 2 percent with nothing more than a Post-It note stuck to the final decree, court records show. In every case, the commission alleged, Surrogate Feinberg awarded the excess fee, insinuating that he directed a windfall profit to a chum while ignoring his judicial oversight responsibilities.

Surrogate's Law Skirted

Surrogate Feinberg admitted he had failed to require affidavits as mandated under the Surrogate's Court Procedure Act and, once his neglect was discovered, apologized profusely.

The surrogate claimed he was oblivious of the provision and noted that he ordered affidavits - prospectively and retroactively - as soon as the Daily News probe made him aware of the law. Additionally, Surrogate Feinberg pointed out that his manner of awarding fees was consistent with longtime Brooklyn practice.

Court records show that the firm that preceded Mr. Rosenthal as counsel to the public administrator, Hesterberg & Keller of Brooklyn, also requested the excess fee via Post-It notes and also had that request routinely honored by then-Surrogate Bernard M. Bloom. However, Surrogate Bloom required affidavits of legal service, abiding by the Surrogate's Act and making the transactions with Hesterberg & Keller more transparent.

At the Court of Appeals, the case distilled to whether Surrogate Feinberg committed misconduct and, if so, the gravity of the offense. The Court found grave misconduct, rejecting every defense advanced by the surrogate.

It criticized Surrogate Feinberg for neglecting to read the law, for funneling lucrative commissions to a friend and for neglecting to give individualized attention to the intestate matters over which, as the elected Kings County surrogate, he had assumed responsibility by looking out for the interests of potential heirs and, where there were no heirs, the state.

Strong 'Taint of Favoritism'

The Court also rejected Surrogate Feinberg's argument that the Commission on Judicial Conduct had grossly inflated the total of the alleged overpayments, observing in a footnote that the commission's calculation of an 8 percent award in most cases was on target. By that calculation, Mr. Rosenthal was overpaid by roughly $2 million.

"Petitioner's failure was made all the more egregious by his appointment, without considering other candidates, of a close personal friend and political supporter," the Court said. "While appointment of a friend does not itself convey an appearance of impropriety, when, as here, that appointment is coupled with the unsubstantiated award of several million dollars in fees from estates that, by definition, lack adversarial parties to challenge the practice, the taint of favoritism is strong."

This case, the Court said, "reflects not mere lapses or errors in judgment but a wholesale failure of petitioner's duty, reflecting an indifference if not cynicism toward his judicial office."

It added that Surrogate Feinberg's "failure to abide by the legal requirements of his office, in a manner that conveyed the appearance of impropriety and favoritism, debased his office and eroded public confidence in the integrity of the judiciary."

Attorney General Eliot Spitzer's office has offered to settle any dispute with Mr. Rosenthal for $729,800, an amount the office has described as a "subset" of the overpayment.

The state Surrogate's Association supported Surrogate Feinberg as amicus curiae. It insisted the commission has no business second-guessing the discretionary actions of a judge. But in yesterday's opinion, the Court said a judge does not have discretion to ignore the law.

Commission Administrator and Counsel Robert H. Tembeckjian prosecuted the case. Henry M. Greenberg of Greenberg Traurig in Albany argued for Surrogate Feinberg.

Mr. Tembeckjian said that while "it is never pleasant or easy to remove a judge," it is occasionally necessary.

"I am gratified the Court forcefully affirmed a fundamental principle in this case - that public confidence in the integrity and competence of the judiciary is essential to the rule of law," Mr. Tembeckjian said. "One who routinely violates that principle is unworthy of being a judge."

Mr. Greenberg declined comment.

Choosing a Successor

By deciding the case yesterday, the Court ensured that Surrogate Feinberg's successor will be chosen through a Sept. 13 primary. A ruling after July 7 would have permitted Brooklyn Democratic leaders to choose the successor.

Three candidates had their hats in the ring yesterday for the Democratic nomination to fill the vacancy: Brooklyn Supreme Court Justices Diana A. Johnson and Lawrence S. Knipel, and Civil Court Judge Margarita Lopez Torres.

Aides to all three judges confirmed that they will begin the process of gathering the 4,000 petition signatures needed to qualify for the primary. The trio face a truncated petitioning period because primary candidates for other offices were legally permitted to begin circulating petitions on June 7.

Meanwhile, Brooklyn voters for the first time this November will choose two surrogates. Last week, the state Legislature created a second surrogate's position in the borough as a part of a package of 21 new judgeships enacted in the closing hours of its session (NYLJ, June 28).

The new law, if signed as expected by Governor George E. Pataki, will become effective Aug. 1, which is too late in the political calendar for a primary. Instead, the leadership of the Brooklyn Democratic Party will select the candidate.

The party is expected to select Brooklyn Assemblyman Joseph R. Lentol, who heads the Assembly's Codes Committee, according to sources.

B'klyn Judge Axed in $cheme

New York Post - June 30, 2005
by Kenneth Lovett
The state's top court yesterday kicked Brooklyn Surrogate Judge Michael Feinberg off the bench for rewarding a political crony with millions of dollars in court fees.

"The record reflects not mere lapses or errors in judgment but a wholesale failure of [Feinberg's] duty, reflecting an indifference if not cynicism toward his judicial office," the Court of Appeals ruled in a unanimous 14-page decision.

Feinberg's actions not only "conveyed the appearance of impropriety and favoritism," but also "debased his office and eroded public confidence in the integrity of the judiciary," the Court of Appeals ruled.

Appeals Court Upholds Judge's Removal

New York Times
June 30, 2005
by Michael Cooper
The state's highest court upheld yesterday the removal of Judge Michael H. Feinberg, the Brooklyn surrogate judge, for awarding $8.6 million in legal fees to a longtime friend to handle the legal matters of people who died with no wills. The court said the judge had "debased his office and eroded public confidence" in the judiciary. The State Commission on Judicial Conduct recommended the judge's removal in February, and yesterday the appeals court unanimously upheld it, noting that he had demonstrated "a shocking disregard for the very law that imbued him with judicial authority." An intense campaign for succession is likely.

Brooklyn judge removed from office

Newsday - June 30, 2005
By Anthony M. Destefano

The state's highest court officially booted Brooklyn Surrogate Michael Feinberg from his job Wednesday, finding that he debased his office by awarding undocumented fees in connection with certain estates.

In kicking Feinberg out of his job immediately, the Court of Appeals confirmed a February recommendation by the Commission on Judicial Conduct that he be removed from office. The jurist was already under suspension without pay.

At that time, the judicial watchdog agency found that Feinberg's action in giving the fees to public administrator Louis Rosenthal, a friend, without proper documentation tarnished the image of the judiciary. The public administrator handles estates of people who die without wills.

If a judge challenges the commission's recommendation for removal, as Feinberg did in his case, it is up to the Court of Appeals to decide whether that extreme penalty is proper. The state's highest court has backed the commission recommendation for removal more than 87 percent of the time since 1978.

By removing Feinberg, the appeals court set the stage for a September primary fight over his successor. Feinberg had been Brooklyn surrogate since his election in 1996.

One Brooklyn attorney who asked not to be identified but who is familiar with Democratic party judicial nominating proceedings said he believed the Court of Appeals ruled quickly on the Feinberg matter -- just 20 days after oral arguments -- to make sure that primary election petitions can be filed in time. Otherwise, embattled Brooklyn Democratic party boss Clarence Norman would be able to pick the nominee, the attorney said.

In its decision Wednesday, the Court of Appeals repeated how Feinberg did not for about five years require Rosenthal to file affidavits describing the work he did on the various estates. Feinberg sometimes gave Rosenthal the maximum 8 percent statutory fee. Rosenthal, who was appointed without Feinberg considering other candidates, got more than $8.5 million in fees.

Neither Rosenthal nor Henry M. Greenberg, an Albany attorney who represented Feinberg before the Court of Appeals, could be reached for comment Wednesday.

"It is never pleasant or easy to remove a judge from office, but sometimes it is necessary," said Robert Tembeckjian, administrator of the Commission on Judicial Conduct, in a statement.

News helps get dirty B'klyn judge axed

New York Daily News - June 30, 2005
News helps get dirty B'klyn judge axed
By Nancie L. Katz

Citing a Daily News exposé, the state's highest court yesterday booted Brooklyn's most powerful judge for lining a pal's pockets.

The Court of Appeals, in a 15-page unanimous decision, slammed Surrogate Michael Feinberg for routinely awarding a former law school buddy and personal friend nearly $9 million in fees as counsel for the public administrator.

The lawyer, Louis Rosenthal, never filed the required affidavits showing what he did to earn the money.

In February, the state Commission on Judicial Conduct demanded Feinberg be removed for granting Rosenthal nearly $2 million in excessive fees between 1997 and 2002. Feinberg was suspended at that time.

The commission probe was sparked by a 2002 Daily News exposé that found Feinberg routinely gave Rosenthal 8% or more of the estates of people who died without a will, ignoring 1988 and 1994 accords that capped fees at 6% or less.

The Court of Appeals noted Feinberg appointed Rosenthal to the "lucrative" counsel position in 1996 without "any search or interview process."

"In the spring of 2002, [Feinberg] learned that the New York Daily News was about to run an exposé of the Kings County Surrogate, revealing his practice of approving [Rosenthal's] fee requests without affidavits or individualized review of the cases," the judges wrote. Only then, they said, did Feinberg start collecting the affidavits.

The court scoffed at Feinberg's assertions that he did no wrong because he had acted in ignorance after only skimming through the Surrogate Courts Procedure Act.

Neither Feinberg, his lawyers nor Rosenthal responded to calls yesterday.

Candidates were already lining up yesterday to replace Feinberg. Rebel Democratic Judge Margarita Lopez Torres announced her candidacy. Other potential contenders for the November ballot include Brooklyn Supreme Court Justices Lawrence Knipel and Diana Johnson, sources said.

Friday, June 10, 2005

Counsel in Feinberg Case Spar Hard Before Judges

New York Law Journal - June 10, 2005
Counsel in Feinberg Case Spar Hard Before Judges
by John Caher

ALBANY -- Attorneys for the Commission on Judicial Conduct and Brooklyn Surrogate Michael H. Feinberg battled ferociously at the Court of Appeals yesterday, engaging in an invigorating debate over whether a judge who awarded millions of dollars in fees to a close friend and political ally is fit to wear robes.

Commission Administrator and Counsel Robert H. Tembeckjian pushed hard for removal, claiming that Surrogate Feinberg ignored the law and ethical constraints to such an extent that nothing short of expulsion will do.

But Surrogate Feinberg's counsel, Henry M. Greenberg of Greenberg Traurig, accused the commission of misrepresenting the facts, misleading the Court and "shameless[ly]" exploiting the media to tar a judge that he said has a distinguished 24-year career on the bench.

Mr. Greenberg said the surrogate should not be punished for making honest legal errors, and if the Court insists on a sanction, it should be no more punitive than a censure.

The dispute over Surrogate Feinberg's fate drew a capacity crowd at Court of Appeals Hall, where the judges heard a solid hour of arguments that will ultimately determine whether the jurist remains in office or is barred from the judiciary. Among others, representatives of the state Surrogate's Association were present in support of Surrogate Feinberg. The Surrogate's Association appeared amicus curiae, arguing that the commission has no business second-guessing the discretionary actions of a judge.

Matter of Feinberg v. New York State Commission on Judicial Conduct, 125, began when the New York Daily News reported that the judge had awarded millions of dollars in fees to a political and personal friend he had named counsel to the public administrator, Louis R. Rosenthal.

A subsequent investigation by the Commission on Judicial Conduct showed that Surrogate Feinberg had approved about $9 million in commissions for Mr. Rosenthal over a 5-1/2-year period, never requiring the attorney to file the mandatory affidavit of legal services. Routinely, records show, Surrogate Feinberg awarded Mr. Rosenthal a commission of 8 percent rather than the 6 percent customarily awarded in the other boroughs.

Evidence in the record suggests that Brooklyn judges traditionally permitted court-appointed estate attorneys to take a larger percentage because the estates there tended to be smaller than those in, say, Manhattan, yet the work and effort required was similar. The awarding of a higher commission was apparently designed to equalize compensation so that similar amounts of legal work would result in similar earnings, records suggest.

Charges of Excess

But Surrogate Feinberg went well beyond the bounds of propriety, the commission contends, by persistently ignoring the Surrogate's Court Procedure Act, which requires the filing of an affidavit to justify the appointment of and fees awarded to the counsel to the public administrator; ignoring a 6 percent cap negotiated by the attorney general and Surrogate Feinberg's predecessor; and by allowing Mr. Rosenthal to pocket at least hundreds of thousands of dollars and perhaps more than $2 million in excessive fees that the court should have protected for the heirs or the state. There is no allegation that Surrogate Feinberg personally profited.

"In awarding fees to his long-time friend whom he had appointed to the lucrative position of Counsel to the Public Administrator, [Surrogate Feinberg] had a responsibility to make sure that the fees were appropriate and untainted by an appearance of favoritism," the Commission said in calling for the judge's removal.

The position of counsel to the public administrator has long been a plum assignment in Brooklyn, court records show.

For decades, Hesterberg & Keller of Brooklyn had a lock on the position, and records indicate the firm was well compensated for its work representing the estates of people who died without wills.

Even after the compromises secured by the attorney general and general agreement to limit commissions to 6 percent, Hesterberg & Keller routinely put in for and usually received an additional 2 percent, records show. According to the briefs, the firm would bill 6 percent for its work done before the accounting, and then request via a Post-It note an additional 2 percent on the final decree. Hesterberg & Keller routinely, but not always, received the extra 2 percent.

Similar Arrangement

Mr. Rosenthal had a similar arrangement, with two main differences, according to the commission.

First, while Hesterberg & Keller was required to file the affidavit of legal service so the attorney general could monitor whether the work was necessary and appropriately billed, Mr. Rosenthal was never asked to account for his work or his billings.

Additionally, the commission says, Mr. Rosenthal virtually always received the extra 2 percent, suggesting that the bonus was automatic and had nothing to do with whether the estate required extra amounts of time or effort.

The total of the alleged overbillings is also at issue.

Initially, the commission contended that Mr. Rosenthal had received over $2 million more than he was entitled to, an amount that figured prominently in a split decision calling for Surrogate Feinberg's removal. Since then, the attorney general has written to Mr. Rosenthal indicating that its calculation of the overpayments and the amount it seeks in restitution is about $730,000.

Further, Surrogate Feinberg denies that 8 percent commissions were approved in every case and notes that in the early years Mr. Rosenthal was splitting fees with Hesterberg & Keller. The commission, while standing by its initial calculation, now says that it makes no difference if the amount is $2 million or a fraction of that since the issue is whether Surrogate Feinberg rewarded Mr. Rosenthal at the expense of the estates he is legally bound to guard.

Yesterday, Mr. Tembeckjian and Mr. Greenberg made a final and at times fervent attempt to persuade the Court. Both were peppered with questions from the bench that seemed to center on the point at which legal error becomes a matter for the Commission on Judicial Conduct rather than an appellate court.

In a number of cases in recent years--most notably Matter of Bauerlast year--the commission has taken the position that repeated legal errors can constitute misconduct. The Court has generally, albeit with some hesitation, agreed.

'I'm Sorry'

Mr. Greenberg began his presentation humbly and the first words uttered on behalf of his client were: "I'm sorry." He stressed that the surrogate erred egregiously in failing to demand affidavits of legal service, and profoundly regrets overlooking the provision in the Surrogate's Court Procedure Act requiring such documentation.

In Bauer, a judge accused of using excessive bail to coerce guilty pleas was removed in a 4-3 decision that suggested contrition would have gone a long way toward salvaging his judicial career. Mr. Greenberg was not about to make the same mistake.

"I would like to begin, as Surrogate Feinberg asked me to, with two words from him: 'I'm sorry,'" Mr. Greenberg said. "Surrogate Feinberg apologizes to this Court, to the commission and most of all to the residents of Kings County, who elected him to be their surrogate. He is sorry for having failed for several years--too long--to obtain affidavits of legal services before awarding attorneys fees to the counsel to the Kings County public administrator."

But from there on, Mr. Greenberg was on the offensive.

The Albany attorney stressed that when Surrogate Feinberg was made aware of the requirement, he not only ordered affidavits prospectively, but retroactively--requiring Mr. Rosenthal to present affidavits for every case he had handled in the past. He accused the commission of intruding in an area of judicial discretion, and of inflating the alleged overpayments to inflame public sentiment.

Mr. Greenberg told the Court that no party in any of the 475 cases at issue challenged the award of fees, and that those fees were reviewed without comment by both the New York City comptroller and the attorney general. He said that in 52 of the cases cited by the commission, the award was 6 percent or less, and in 28 cases there was no fee award.

Ignorance of Law

Mr. Greenberg stressed that Surrogate Feinberg's repeated violation of §1108(2)(c) resulted from ignorance and not willful misconduct.

"He was not aware of §1108(2)(c) of the Surrogate's Court Procedure Act?" Chief Judge Judith S. Kaye incredulously asked Mr. Greenberg, her onetime clerk.

"Chief Judge Kaye, I am sorry to say he wasn't aware of it," Mr. Greenberg said.

Mr. Tembeckjian said it is "absurd" to believe that Surrogate Feinberg was simply unaware of a "fundamental provision of the very law that he is supposed to enforce."

He said, however, that Surrogate Feinberg would deserve removal even if he was ignorant of the law because the impact of his supposed ignorance was to undermine public trust and confidence in the judiciary.

"It is absurd to suggest that any judge would hand out millions of dollars in fees...without requiring affidavits of legal services," Mr. Tembeckjian said. "It is not conceivable that the public could have confidence in a judge who awarded millions of dollars on the basis of a rubber stamp."

Wednesday, June 08, 2005

Bench this judge pronto


NY Daily News -- Editorial
June 8, 2005

The state Court of Appeals tomorrow considers the removal from office of
Brooklyn Surrogate Judge Michael Feinberg, a Democratic Party loyalist
who allowed a lawyer pal to bilk $2 million from the estates of people
who died without wills. Feinberg must go, but the court must pay close
attention to when it lowers the ax.

Feinberg's betrayal of trust has been well documented by the Commission
on Judicial Conduct, which is seeking to have him fired. The Court of
Appeals has two choices: summarily fire Feinberg - this week - or grind
the wheels of justice for a couple of months.

The court must put the case on a super fast or a super slow track
because of the election calendar. If it were to decide the matter
routinely, say, in a few weeks, Democratic boss and alleged felon
Clarence Norman would choose the next surrogate. That must not happen.

The timetable is rigged in Norman's favor. Lawyers who want to run for
surrogate have until July 7 to collect the 12,000 signatures needed to
get on the primary ballot. Every day Feinberg remains on the bench
shortens the time to get signatures; candidates without Norman's backing
have virtually no chance of pulling off the feat.

Even worse, if the court dumps Feinberg between July 7 and Aug. 8,
Norman and his cronies get to pick the candidate who will appear on the
Democratic line, guaranteeing election. In the event of a decision after
Aug. 8, Gov. Pataki would get to appoint an interim surrogate who would
sit until an election in 2006.

The best course for the court would be to toss Feinberg now, giving
insurgents a fighting chance. Second best would be to wait until August,
so Pataki got the pick. Worst of all would be to keep Norman's hold on a
key judicial post that's abused as a patronage plum