Friday, September 8, 2006

In Search of Real Reform

By Jason Boog Judicial Reportsjasonboog@judicialstudies.comPosted 08-27-2008
The Surrogate Court has a checkered reputation. In Manhattan, three candidates are pledging to fix it. Their plans are quite different. But there's a common theme: change.
A New York Times editorial deftly described the Surrogate race in Manhattan: “[The] Democratic primary for Manhattan Surrogate underscores the case for reform … capable candidates — all promising reform of the court's patronage appointments — vied for the job, which involves dispensing millions of dollars in fees to lawyers acting as executors, guardians and estate trustees.”Unfortunately, that editorial was published 18 years ago (click here to read it), and this year’s Surrogate race is a rerun: an expensive slugfest in which every candidate promises to radically change the court. But real reforms are few. Indeed, former Surrogate Eve Preminger admitted in a recent interview that many lawyers who worked closely with that court never expected her to follow through with her 1990 campaign promises. “Nobody believed I was serious, everybody thought it was a publicity trip,” she said, maintaining a gloomy outlook on quick Surrogate Court fixes. Manhattan has two Surrogates, Kristen Booth Glen and Renee R. Roth, whose retirement after serving since 1983 created an current opening for the 10-year position. Surrogates assign legal guardians and fiduciaries to handle a number of tasks: calculating the value of estates, selling properties, and settling accounts. But because those assignments can often prove lucrative, the position has become tainted with a reputation for cronyism.REFORM-A-GO-ROUNDFulfilling one campaign promise, Preminger maintained a public list of attorneys and doled out many of them in an intentionally random process. While that particular change was also adopted by her successor, Booth Glen, the general reputation of the court has not improved. “Everybody running for the court in the last 50 years have said that they would reform the court,” said Gary Tilzer, a political consultant assisting in Supreme Court Justice Milton A. Tingling, Jr.’s current Surrogate bid in Manhattan. “But it just dissipates. There’s no follow-up.” In lieu of a more traditional website, the Tingling campaign has built an unofficial history of reform efforts at the blog, Facts About Manhattan Surrogate Court 2008. While the website is decidedly partisan, it details Surrogate scandals and failed reform efforts dating back to the 1960’s. Click here to see that site.The most recent spate of Surrogate scandals rocked the Brooklyn Surrogate Court. In 1995, then-Surrogate Bernard M. Bloom was censured for giving incorrect testimony during a court-appointed investigation of his former chief law assistant. Surrogate Michael H. Feinberg replaced him, and 10 years later, Feinberg was removed when it was discovered that he passed $8.5 million in fees to an attorney without filing the necessary paperwork. The Surrogate election game has remained unchanged as well. Three Surrogate Court candidates have raised buckets of cash for the 2008 race: Justice Tingling has raised $74,849, Seth Rubenstein attorney Nora Anderson has raised $112,634, and Bekerman & Reddy partner John J. Reddy, Jr. has raised a whopping $452,475. All have proposals that would exceed any historical reforms The main questions are whether the ideas would work and whether they’ll actually be enacted following the September 9 primary — which, in this overwhelmingly Democratic county, virtually assures victory at the general election.TINGLING’S AGENDAGiven the history of big promises and tiny changes, Judicial Reports asked experts in trusts and estates law to vet the three Surrogate Court reform platforms — to see how campaign promises appear under the scrutiny of scholarly microscopes.Justice Milton A. Tingling, Jr. is the only candidate running from the bench. He was elected to the Civil Court in 1996, and won a Supreme Court spot in 2001. Before becoming a judge, he spent years serving as Court Attorney, Law Assistant and Law Secretary for various New York City jurists. His reform platform hinges on two tenets. First, Tingling promises to create a “Blue Ribbon Commission” containing retired judges, legal leaders, and community members to act as a Surrogate watchdog — issuing two reports a year about the court’s activities. “Forty percent will not be lawyers,” he said in an interview. “They will be people who have previously experienced the system. We can talk about who’s doing the best for everybody, but who goes to the people who have been through [the Surrogate Court]?”Tingling currently serves as one of three New York City Supreme Court Justices assigned to work with guardianship appointments in the Supreme Court. According to Tingling, the three jurists currently have 500 guardianship cases pending — and, on average, seven new cases are added each week. (A number of guardianship cases land in the Civil Branch of the Supreme Court. For more information on those proceedings, click here.)He also said he would keep politicians out of lucrative guardian positions, a situation that breeds cronyism like bacteria in a Petri dish: “Not only will I be barring elected and appointed officials [from guardianships], but I will also be barring their families and their law firms.” Based on his experience with guardianships in the Supreme Court, Tingling concluded that many lawyers avoid the low-paying guardianships, vying only for positions with higher fees.“I will not assign somebody unless they agree to do two or more cases where there are no fees,” he added. “You’re not going to get appointments unless you agree to take those with little or no money.” Two legal experts had different opinions about Justice Tingling’s ideas. Wallace L. Leinheardt, Chair of the New York State Bar Association’s Trusts and Estates Law Section, felt that restricting the attorney pool that a Surrogate could appoint was generally bad policy. A partner at Jaspan Schlesinger Hoffman, he recalled an incident from former Brooklyn Surrogate Bernard Bloom’s tenure. Bloom had served as a Brooklyn District Leader for the Democratic Party before taking his office. “When he was asked by a reporter why he appointed his friends, his response was, ‘Who do you want me to appoint, my enemies?’ ” recalled Leinheardt. “It was a joke, but the judge should have an ability to appoint lawyers whose skills they know.”Stewart E. Sterk, a Real Estate Law Professor at Benjamin N. Cardozo School of Law, disagreed — adding that the public had a fundamental right to know exactly why a judge appointed a particular lawyer to a particular case. “The best reforms come from the media getting in and reporting on what happens with some regularity,” he said. “The difficulty is showing who benefits from these courts. There are many appointments that a surrogate has to make, and the question is on what basis?”Former Surrogate Preminger said if she were running for the office again, she would consider making a similar pledge to keep out political leaders. “It cleans up what happens in the Surrogate race,” she said, “[and] maybe that would look better to the public.” While the former Surrogate claimed that her list of potential appointees never included political leaders, she recalled receiving multiple lunch invitations from political leaders interested in discussing appointments during her tenure.A REDDY ANSWEROut of all three candidates, John J. Reddy, Jr., offered the most dramatic restrictions on his appointment power.
“I’m going to have someone from my office go through my list of contributors and find the people who contributed to my campaign and the law firms they work for,” he explained in an interview. “They will be deleted from my list of eligible lawyers. I won’t be able to show preference in any way.”
(Reddy cannot perform this function himself, since State Election Law prohibits judicial candidates from knowing who gave them donations.) Click here to visit Reddy’s campaign website.Professor Sterk emphatically supported Reddy’s proposal. “I think that’s terrific,” he said. “Repudiating appointments for anybody who gives donations has to be a good start. It seems to me that’s a no-brainer, as long as we have an elective system.” Leinheardt called the move “naive.” A treasurer for many past judicial campaigns, he said that it would be a waste of resources to exclude attorneys just because they’d been generous. “In a race like this, lawyers are the natural [contributors]. Manhattan has to be the worst place in terms of media costs — it costs a bloody fortune,” he said. The former Surrogate agreed. “I don’t think it’s going to do anything,” Preminger said. “It depends on the integrity of the judge and the person the judge appoints.”In addition, Reddy's campaign materials also pledge that he “will not award guardianships to politicians, party and political club officials, individuals who contribute to his campaign, and attorneys related to or from the same law firms as those individuals or retired Surrogate Judges.”ANDERSON’S OUTSOURCING The final candidate for Surrogate is Nora Anderson, an attorney at the firm of Seth Rubenstein and a former Law Secretary to Supreme Court Justice Albert Williams. Click here to visit Anderson’s campaign website.Rubenstein is a probate lawyer who has made a tidy business out of Surrogate Court appointments. Earlier in the race, a number of press outlets noted that Anderson had received a large campaign loan from her employer, but the candidate has publicly pledged to repay that debt. Anderson has also proposed a solution that could eliminate the potential conflict with her employer altogether.Anderson advocates having the Corporation Counsel’s Office make guardianship appointments going forward. “You would only need five lawyers to handle that caseload,” explained Anderson in an interview.Professor Sterk was skeptical.“Anybody who does the assignments is now subject to pressure. All you are doing is moving issues from one body to the other. Maybe the Office of Court Administration or Corporation Counsel Office is a little more immune to misbehavior, but there’s no reason to believe that’s true,” he concluded, suggesting that a completely independent agnecy field the guardianship appointments for fixed fees. Leinheardt disagreed for different reasons. The State Bar Trusts and Estates Law Section chair reiterated his position that the ultimate decision about ad litem assignments should always be up to the Surrogate Judge. “I personally prefer to see private attorneys [appointed], in my experience with bureaucracy and public service, it’s not always as responsive as it should be,” he said.Leinheardt used Nora Anderson’s firm to illustrate how an automatic system could miss the benefit of a Surrogate’s judgment . “Seth Rubenstein is a good example,” he explained. “He is a leading practitioner in this area, highly qualified. I would understand in the Brooke Astor case why you need somebody like Seth Rubenstein. In a high profile case like that, he’s best qualified to serve in that case.”Out of all the experts interviewed for this story, only one had endorsed one of the Surrogate Court candidates. Surrogate Preminger said that Nora Anderson was her favorite, and was inspired by the attorney’s Corporation Counsel idea — though she wondered how the State would pay for the new arrangement.For her part, Anderson added that she might be able to fast-track the idea. “It may be possible with the okay of the mayor,” she said. “This mayor has a can-do attitude. I think he may see this as a positive thing.” Said Preminger: “It might chance the public image [of the court], because nothing we’ve done has changed the image.”The challenge for the contenders, then, is not just to win election to the post but to change the post itself. Which, given its history, would be more than a reform. It would be a revelation.
Posted by Jason Boog on August 27, 2008 01:56 AM Print

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