B'KLYN JUDGE AXED IN $CHEME
NY POST, June 30, 2005

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ALBANY - 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. Kenneth Lovett

Citizens for Judicial Accountability
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Powerful Judge Exposed by the News Is Now an Ex-judge
The Associated Press
New York Daily News
June 29, 2005

ALBANY - A New York City judge has been kicked out of office for awarding millions of dollars in "unsubstantiated" fees to a law school friend, the state's highest court said Wednesday.

Kings County Surrogate Michael Feinberg's "failure to abide by the legal requirements of his office, in a matter that conveyed the appearance of impropriety and favoritism, debased his office and eroded public confidence in the integrity of the judiciary," the state Court of Appeals said in a unanimous decision.

In February, the state Commission on Judicial Conduct recommended Feinberg be removed after finding he awarded "excessive and overly generous" fees to Louis R. Rosenthal, a longtime friend whom Feinberg appointed counsel to the public administrator of King's County. From January 1997 to May 2002, 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 said.

Feinberg and Rosenthal met while students at Brooklyn Law School in the 1960s and have remained friends. Rosenthal supported Feinberg's campaign for the Surrogate''s Court. Shortly after his election in 1996, the Democratic Feinberg then appointed Rosenthal to the counsel position.

The commission said Feinberg's misconduct was "aggravated by his lack of candor" during a hearing in the case. Feinberg argued that his conduct was an "innocent mistake" and amounted only to a legal error, not misconduct. He also denied favoritism, saying Rosenthal was appointed counsel because he had experience as a judge, federal prosecutor and practicing lawyer in Surrogate's Court.

There is no legal or ethical prohibition against appointing someone who also happens to be a friend, he said.

Attempts to reach Feinberg were unsuccessful. His attorney, Henry Greenberg, did not immediately return a call seeking comment.

Feinberg had served as a Surrogate judge since 1997, hearing cases involving wills and the administration of estates. Surrogate Court and Family Court together have jurisdiction in adoption proceedings. From 1991 to 1996 Feinberg was a Supreme Court justice in the second judicial district and served as a New York City civil court judge from 1982 to 1990. The court ruling bars Feinberg from holding judicial office in the future.

NY Lawyers Spar Hard Over Fate of
Judge Who Approved Millions in Fees for Pal
June 10, 2005

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. To read the complete article click on

Bench This Judge Pronto
Editorial
New York Daily News
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.

NY Judge's Woes Reveal Court's Bizarre Business as Usual
By John Caher
New York Lawyer
New York Law Journal
May 26, 2005

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.

Spitzer, Commission Split on How
Excessively NY Judge's Buddy Was Paid
By John Caher
New York Lawyer
New York Law Journal
May 18, 2005

ALBANY In a break with the Commission on Judicial Conduct, the New York Attorney General's Office has found that the allegedly excessive fees awarded by suspended Brooklyn Surrogate Michael H. Feinberg, leading to misconduct charges and calls for his removal, were far less than the commission's $2 million estimate.

In a document obtained by the Law Journal, the Attorney General's Office says that the questionable fees awarded by Judge Feinberg to Louis R. Rosenthal, the former counsel to the public administrator, totaled less than $730,000, far below the $2 million-plus cited when a split panel earlier this year called for the judge's removal.

If the attorney general's math is better than the commission's, it could cast the Feinberg case, scheduled for argument at the Court of Appeals on June 9, in a different light. The commission continues to stand by its estimate.

The Commission on Judicial Conduct, in an 8-1 opinion, said in February that Judge Feinberg deserved to be thrown off the bench for "awarding fees to his appointee in hundreds of cases totaling millions of dollars." Given the magnitude of the alleged transgression, the commission said that "a public sanction less than removal for such egregious misconduct would be wholly inadequate."

But in an April 22 letter from Gerald A. Rosenberg, a bureau chief in the Attorney General's Office, to Mr. Rosenthal, the Department of Law contends the commission erred substantially in its calculation.

"[I] assume you will be relieved to learn that we are not adopting the $2 million figure that appeared in the [Commission on Judicial Conduct] Opinion in Matter of Feinberg," wrote Mr. Rosenberg, chief of the charities bureau in the Division of Public Advocacy.
\pard line The commission's demand for Judge Feinberg's removal stemmed from a New York Daily News probe indicating that the judge had rewarded Mr. Rosenthal, a friend and political ally, with excess fees.

Mr. Rosenthal, a former Civil and Criminal Court judge and assistant U.S. attorney, was appointed counsel to the public administrator shortly after Judge Feinberg's election to Surrogate's Court in 1996. The public administrator administers the estates of people who die without wills. He or she is paid from assets of the estate, as approved by the surrogate under §§1108 of the Surrogate's Court Procedure Act. Typically, the counsel to the public administrator is paid a percentage of the estate.

Throughout New York City with the exception of Brooklyn estate administrators historically received a 6 percent share as their fee. But in Brooklyn, administrators got 8 percent until accords in 1988 and 1994 between officials in that borough and the attorney general. Under the agreements between the attorney general and the predecessors of Judge Feinberg and Mr. Rosenthal, Brooklyn was to adhere to the same 6 percent ceiling recognized in the rest of the city.

Commission staff figured that over a 5-1/2-year period, Mr. Rosenthal was overpaid by about $2.25 million.

They arrived at that figure by looking at the total amount that was paid to Mr. Rosenthal between 1997 and 2001, which was about $9 million. If the $9 million was based on an 8 percent return rather than 6 percent, Mr. Rosenthal was compensated at a rate 25 percent higher than appropriate and shortchanging beneficiaries, the commission staff reasoned.

In its opinion, the commission did not cite the $2.25 million figure precisely, but referred to overpayments exceeding $2 million three times in calling for Surrogate Feinberg's removal.

Amount in Dispute

But in his letter, Mr. Rosenberg wrote that in the state's view, the accurate total of overpayments is $729,800, an amount the attorney general is seeking to recover. Although the attorney general was noticed in all fee-generating public administrator matters, it never objected to the fees paid to Mr. Rosenthal as approved by Judge Feinberg, some of which it now seeks to recover.

"We look forward to sitting down with you . . . and attempting to work out a settlement of our claims," Mr. Rosenberg wrote to Mr. Rosenthal.

The letter, which was written after counsel for Judge Feinberg submitted its brief to the Court of Appeals, is not a part of what is now a closed record. But Judge Feinberg's consistent contention that there was no overpayment is before the Court of Appeals.

Judge Feinberg argues that even if there was an overpayment, it did not rise to the level warranting removal. He also argues with amici support from other judges that the awarding of fees is a matter of judicial discretion that is outside the province of the Commission on Judicial Conduct.

Henry M. Greenberg, of Greenberg Traurig in Albany, counsel for Judge Feinberg, refused to comment on the Rosenberg letter.

However, in his brief Mr. Greenberg criticized the commission's "back of the envelope calculation" that he said "inflated the . . . data supplied by the Commission's counsel."

Mr. Greenberg argues in his brief that an accurate accounting can only be obtained by examining each of the estates where Mr. Rosenthal was allegedly overpaid, and then adding up those alleged overpayments. He contends, as apparently does the attorney general, that when the calculations are done in that manner, the alleged over-payments are a fraction of what the commission alleges in calling for Judge Feinberg's removal.

Commission's View Differs

Commission Counsel and Administrator Robert H. Tembeckjian said he received the Rosenberg letter yesterday morning and immediately faxed it to Mr. Greenberg. Mr. Tembeckjian disputes the attorney general's accounting and, in any case, maintains that either figure "represents a significant overpayment that was not in the public interest and represented a dereliction of the Surrogate's responsibility."

"I strongly disagree with the calculation made by the Attorney General's Office," Mr. Tembeckjian said. "In my brief to the Court of Appeals, I will demonstrate how the record before the commission supports the finding that the overpayment was approximately $2 million and not $730,000."

Mr. Tembeckjian said he would "be happy to discuss with the Attorney General's Office how we arrived at the $2 million figure and demonstrate from the record that ours is the accurate number."

Christine VonDohlen-Pritchard, a spokeswoman for the Attorney General's Office, said, "We would be happy to meet with the commission to discuss the different calculations, including the methodologies involved and any additional information that might affect the outcome."

NY Judge Who Awarded Friend
Extra $2 Million in Fees Replaced
By Tom Perrotta
New York Lawyer
New York Law Journal
March 2, 2005

Supreme Court Justice Albert Tomei was appointed interim Brooklyn surrogate yesterday, two weeks after the state Commission on Judicial Conduct recommended that the current surrogate, Michael H. Feinberg, be removed for awarding $2 million in excessive legal fees to a friend.

The Office of Court Administration described the move as an effort to promote confidence in the Surrogate's Court, which has been under scrutiny for several years because of fees awarded by Surrogate Feinberg.

Justice Tomei "is widely respected and admired for his integrity and his judicial scholarship," Chief Administrative Judge Jonathan Lippman said yesterday.

According to the conduct commission, Surrogate Feinberg's "largess" enriched Louis R. Rosenthal, the counsel to the public administrator in Brooklyn, with fees that went beyond acceptable ranges and that at times should not have been permitted at all. Mr. Rosenthal and Surrogate Feinberg have been friends since the 1960s, and Mr. Rosenthal has been one of his political supporters. He and the public administrator, Marietta Small, were appointed by Surrogate Feinberg.

From January 1997 to May 2002, the surrogate awarded Mr. Rosenthal 8 percent of the estates he represented for deceased persons without wills. The fees were two percentage points higher than those allowed by surrogates in other boroughs. The premium netted Mr. Rosenthal $2 million more in fees, for a total of $9 million, the commission found.

The commission also said Mr. Rosenthal received fees for real estate deals and referrals to other attorneys that were not awarded in other boroughs.

Surrogate Feinberg, who has been suspended with pay, is appealing his sanction to the Court of Appeals. Judge Lippman said yesterday that Surrogate Feinberg's case might not be argued until next fall. If he is eventually removed, Governor George E. Pataki would appoint an interim surrogate until the next election.

Justice Tomei, 65, said his first act was to inform Mr. Rosenthal that he would not be receiving any more Surrogate's Court cases, though he would be allowed to stay on the 300 to 400 cases already assigned to him.

"My overarching goal is to make sure that the interests of those who come before the Surrogate's Court are protected," Justice Tomei said. "Clearly with the recent events there has been a shortfall in public confidence."

Mr. Rosenthal did not return a call seeking comment.

Justice Tomei has spent the bulk of his career in Criminal Court and has little experience in the intricate matters of Surrogate's Court. Judge Lippman, however, said his talents and work ethic were more important than experience.

"B'klyn Sandal Lawyer Gets Ax"
By Nancie L. Katz
New York Daily News
March 2, 2005

Exclusive - A veteran judge was tapped yesterday to take over as acting Brooklyn
surrogate - and he promptly fired the lawyer at the center of the corruption scandal that rocked the court.

State Supreme Court Justice Albert Tomei replaces Judge Michael Feinberg, who was suspended from the surrogate's bench last week.

Feinberg was ousted on the recommendation of the state Commission on Judicial Conduct.

The commission confirmed a Daily News investigation that found Feinberg regularly approved excessive fees for pal Louis Rosenthal, whom he appointed in 1997 to help handle the estates of Brooklynites who died without leaving wills.

Tomei, a Democrat whose niece is actress Marisa Tomei, said his first move was to meet with Rosenthal, Feinberg's former law school classmate.

"I informed him that ... he would not be getting any more future assignments," Albert Tomei said.

As for cases Rosenthal is already handling, Tomei said, "He'll maintain those he has and we'll scrutinize them."

The commission found Feinberg routinely allowed Rosenthal to bill estates for exorbitant legal fees without filing legally required documents explaining what he did to earn them.

Tomei, a judge for nearly three decades, was named acting surrogate by state Administrative Judge Jonathan Lippman.

Lippman said he was trying "to promote public confidence" in the battered Brooklyn courts, where two judges have been charged in bribery cases and state and federal prosecutors continue to probe other allegations of wrongdoing.

Feinberg has appealed to the state Court of Appeals in Albany in an attempt to save his job.

If the court rules against him, the surrogate's post will be permanently filled in a November election.

more articles...

Brooklyn Surrogate Judge Michael Feinberg is Suspended From the Bench, Judge Albert Tomei Takes Over

GOVERNMENT SCANDALS, INDICTMENTS & CORRUPTION


Federal/State Conflicts, Corruption and Indictments