Brooklyn Surrogate's Court 2005

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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."


Blogger patentgate said...

Patentgate ~ I wonder if this recent concern of Proskauer in electronic evidence is a result of their attempt to suppress evidence against their firm in the matter of stolen patents from Iviewit technologies. The theft of the intellectual properties has led to court room requests for Proskauer to procure documents they have stored electronically and their refusal to submit such documents, case Palm Beach County, Proskauer Rose LLP v. Iviewit Holdings, Iviewit Technologies and, Inc. It has also been uncovered that these corporations in this case were actually illegal set up by Proskauer to mirror their client, Iviewit's companies, in efforts to steal intellectual properties through an intricate artifice to defraud inventors and investors of their technologies. Further, Proskauer has converted these technologies by setting up an anticompetitive monopolistic patent pooling scheme commonly known as MPEG or MPEGLA, whereby Kenneth Rubenstein acted as counsel to Iviewit and then stole the technologies he was supposed to patent for Iviewit, to proliferate in his patent pool that he controls with Proskauer and others.

The inventions were invented by Eliot Bernstein, Jude Rosario, Zackirul Shirajee and others and where Proskauer representing these inventors went about a series of frauds to steal them and monetize them through MPEG. The crimes are currently under investigation at the United States Patent and Trademark Office and the attorneys are under investigation with the United States Patent & Trademark Office Office of Enrollment and Discipline which requlates corruption by federally approved patent attorneys registered with the USPTO. Other law firms such as Foley and Lardner are involved in the missapropriations.

Read the entire story at or the blog Patentgate at .

Proskauer partners Steven C. Krane, former President of the New York State Bar Association and Stephen Krane who is married to Chief Judge of the New York courts Judge Judith Kaye have also been implicated in attempting to derail Iviewit's legal efforts through undisclosed conflicts of interest and violations of Supreme Court offices in New York's bar association.


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