Judge Loses Seat After Showing 'Shocking Disregard' forLaw

New York Law Journal
John Caher

In a harshly worded opinion, New York’s Court of Appeals Wednesday ended Brooklyn Surrogate Michael H. Feinberg’s judicial career. It held that his awarding of millions of dollars in attorney 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, Feinberg “demonstrate[d] a shocking disregard for the very law that imbued him with judicial authority.” It rejected with apparent disdain 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.”

Wednesday’s ruling was a major victory for the New York 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 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. Wednesday, 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 Feinberg’s awarding of millions of dollars in commissions to Rosenthal, a law school friend and political contributor whom the judge had appointed counsel to the public administrator.

The commission found that 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 Feinberg and Rosenthal. That extra 2 percent garnered Rosenthal about $2 million in excessive fees, according to the commission’s calculations.

Typically, 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, Feinberg awarded the excess fee, insinuating that he directed a windfall profit to a chum while ignoring his judicial oversight responsibilities . . .


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