Empty, False Campaign Promises of Reform

Family Court Judge Millard Midonick took office yesterday as surrogate of New York County with a promise to replace “patronage” with “merit” in handling Manhattan’s vast estate business and to urge changes in state laws for the protection of orphans and widows. –New York Times Jan 4, 1972

The Democratic nomination race for Manhattan Surrogate where we have previously expressed a preference for Family Court Judge Millard Midonick a candidate firmly committed to reform of this patronage laden court –NY Times, Sept 9, 1971

Surrogate Midonick now has a mandate to elevate the stature of the court
By ending the system of politically chosen guardians for estates, costs of administration can be reduced –New York Times Nov. 5, 1971

Why not the Best for Surrogate Court?

“Of all the New York courts that suffer from politics and public misunderstanding, the most tormented is surely the Manhattan Surrogate’s Court. It handles more money than any other – More than a billion dollars in estates a year. That makes it a traditional source of lawyers’ patronage – and rumors of favoritism. Reformers rail at costly probate delays and their election-year vows to clean up the place do nothing for its image. . .

And Renee Roth, a law assistant to the Brooklyn Surrogate for more than a decade, has vast experience and an outstanding reputation for knowledge and integrity. . .We judge Renee Roth best equipped to give the Surrogate’s office much-needed lift in public esteem. Her dignity, serious purpose, knowledge of the law practice and instinctive probity would be a credit to the court.” –NY Times, Sept 17,
Surrogate Court Primaries, published: September 6, 1996
Next Tuesday's Democratic primary elections for the obscure but powerful post of Surrogate's Court judge in Manhattan and Brooklyn have sparked intense competition and bitter debates over personality and patronage. Voters need to decide which of the candidates have the best mix of integrity, expertise, judicial temperament and administrative skills for a job that entails overseeing wills, estates and adoptions and dispensing millions of dollars in fees to lawyers acting as executors, guardians and estate trustees.
In a fierce battle in Manhattan, the incumbent Surrogate Renee Roth faces a tough re-election challenge from Karen Burstein, a former State Senator and Family Court judge who ran unsuccessfully for State Attorney General two years ago.
We supported Ms. Burstein for Attorney General and respect her ability to spotlight issues and advocate constructive reform within the political arena. But Ms. Burstein, who quit the Family Court because she found being a judge too ''passive,'' is miscast for the surrogate's job, which calls for tempered judicial and administrative skills to wrestle behind the scenes with arcane issues of trust and estates and tax law.
Judge Roth, during 14 years in the Surrogate's job, has proved fair and able. She has brought a refreshing measure of expertise and integrity to bear on a court that was mired in patronage and accusations of political favoritism when she ran promising reforms in 1982. Her most notable failing has been insufficient aggressiveness in overhauling the office, which oversees the estates of people who die without wills or known heirs. But over all she has done an admirable job and boosted the court's credibility. She takes justifiable pride in setting a high standard of competence for fiduciary appointments and spreading the patronage to include women and minorities.
Now Judge Roth will have to set even higher goals for her second term if she is to avoid the taint of suspicion. A relatively small coterie of qualified lawyers still receives a disproportionate share of the cases and fees distributed by the court, and many of them have shown up as big contributors to her campaign. By contrast, Ms. Burstein, to her credit, is not accepting contributions from lawyers who practice in Surrogate's Court, and has limited individual donations to $500.
On the basis of her solid overall performance, Judge Roth earns our endorsement. But it comes with a challenge to rethink the system of fiduciary appointments to minimize any appearance that big contributors to her campaign are being rewarded. - NY Times, 6, 1996

WHY NOT Reason 1

AG and State Controllers Report on the Surrogate Court
Delays, lax record-keeping and inflated legal fees
In 1987, Comptroller Edward V. Regan and Attorney General Robert Abrams -- determined that record-keeping was in disarray, property was warehoused chaotically and outside lawyers were awarded windfall fees for minimal legal work. The report also said that there were serious delays in completing cases and that money from estates was deposited improperly into accounts used to pay for some of the public administrator's office expenses. – NY Times September, 7 1996.

WHY NOT Reason 2

Fake bank accounts of the dead similar to the city council fake non profits exposed by a former employees lawsuit

“In the interview Ms. Griffin said that contrary to Mr. Connolly's allegations of fraudulent endorsements, "I didn't sign any checks." But Mr. Beckerman -- who voiced surprise during his court examination when he was shown a copy of a $60,000 check payable to his "estate" -- said that the endorsement "looks like" his name in Ms. Griffin's handwriting. Documents cited by Mr. Connolly showed that some of the more than $200,000 withheld from him in accounts in his name was actually paid to others, including a freelance lawyer he said had already been paid by his firm. In all, he testified, 10 checks totaling more than $35,000 were drawn on his account, without his knowledge, and paid to others. "Each of these checks contains a handwritten forgery of my signature," he said in a sworn statement.” –NY Times, July 25, 1992

WHY NOT Reason 3

New York Inquiry is Said to Tape Court Aides Stealing Valuables From the Dead
The investigation was conducted by State Attorney General Robert Abrams, and the New York City Department of Investigation.

“New York State and city investigators have videotaped court representative in the act of taking valuables from apartments of people they thought were dead, according to people familiar with the unusual “sting.” The investigation was part of a city-wide inquiry into the offices of Public Administrators, who handle the estates of people who die without wills or without a clear executor. . . Surrogate Roth did not return several calls to her office yesterday. -NY Times, January 30, 1988

“The problems of patronage aren’t nearly as severe in Manhattan’s Surrogate Court as it is in its Brooklyn counterpart, or, for that matter, in Queens. But even in Manhattan, more can be done to avoid the impression that well-connected lawyers have an unfair edge in the competition for fees for acting as executors, guardians and estate administrators. . . Times endorse Kristin Booth Glen.” –NY Times, Sept 4, 2005

Brooklyn Surrogate No Trust

And then there's Brooklyn, where ex-Surrogate Michael Feinberg was removed from office in 2005 by the Committee on Judicial Conduct for improperly allowing one of his pals to take excessively high fees from estates of the dead.

“Justice Feinberg has promised reforms ranging from a panel to screen appointment and recommend changes in how the place is run; down to keeping the place open at lunchtime as a convenience to the public. With some wariness we endorse Justice Feinberg on the basis of his good record, and trust he will stay true to his reform pledges.” – NY Times, September 6, 1996

Update

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. . . 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?’ ” - Judicial Reports, August 27, 2008

Jimmy Breslin on the Brooklyn Surrogate Court
It was not Eduardo Daniel Gutierrez to die in a lake of concrete. The Brooklyn Surrogate's lawyer had to take his cut before his family recieved any of his wrongfull death settlement

http://www.jimmybreslin.blogspot.com/

NYC Comptroller Audit

http://www.comptroller.nyc.gov/bureaus/audit/PDF_FILES/ME05_055A.pdf

Bronx Surrogate

“Last month, Daily News investigative reporter Nancy Katz uncovered a mess in the Bronx, where Surrogate Lee Holzman allowed politically connected lawyers to run up more than $2 million in fees while 37 heirs waited - some for more than a decade - and collected nothing. To make matters worse, some of the Bronx estate money was improperly placed in risky investments that tanked. Taxpayers may end up covering the $20 million loss.” –August 14, 2008

Candidate Nora Anderson campaign borrows $225,000 from an estate lawyer who makes his living practicing in the Surrogate Court, who contributed an add

Nora Anderson's credentials have taken a serious and perhaps fatal hit in the form of a $225,000 campaign loan from Seth Rubenstein, a Brooklyn trust and estate lawyer with deep family ties to the business (his father served as Brooklyn surrogate in the 1950s, and his grandfather worked in the same court). –Daily News, August 14, 2008

Seth Rubinstein Anderson $250,000 Man

Last October a messenger from Mrs. Lambert's office -- who doubles as another disinherited Brody heir -- delivered some papers to opposing counsel in the case, Seth Rubenstein of Brooklyn. While there, the young messenger spotted something disconcerting: on the wall of Mr. Rubenstein's waiting room, measuring some six square feet was a "Renee Roth for Surrogate" poster, dating from her 1982 campaign for the post.

"The poster is obviously intended to and does create the impression that there is a relationship between Judge Roth and Mr. Rubenstein," he asserted in court papers. "The appearance of impropriety is so great that the Judge should disqualify herself in this hotly contested matter."

Mr. Rubenstein countered that the poster was "hardly huge," and that it represented merely one item in a collection of Surrogate's Courtabilia reflecting his own multi-generational ties to the place. -NY Times, July 17, 1992

Surrogate Roth Appoints Rubinstein into Conflict of Interest

“A Manhattan judge who is the subject of a federal conflict-of-interest probe recently presided over a case where the plaintiff was the judge's own lawyer in a multimillion-dollar court fight, The Post has learned. Seth Rubenstein successfully represented the judge, Manhattan State Supreme Court Justice Marylin Diamond, in her Surrogate Court battle over the $300 million-plus estate of art heiress Natasha Gelman.

Rubenstein was still in Diamond's employ when he was substituted in as the plaintiff in a real-estate brokerage-fee case that was already before her, Helen Miller versus Jane Ardsley Frocks. The elderly Miller died on Sept. 13, 2001, and Manhattan Surrogate Court Judge Renee Roth named Rubenstein the administrator of Miller's $300,000 estate. Diamond signed an order naming him the new plaintiff in Miller's suit two months later. His case remained before her until this past February, when the judge issued a one-sentence order recusing herself. – NY Post, July 2, 2003

Update

Mr. Rubenstein also said that in 1982 he removed himself from OCA's lists of attorneys eligible to receive fiduciary appointments, but since then judges have appointed him because of his expertise, a step judges may take as long as they state their reasons for appointing off the list. - NY Law Journal, August 21, 2009

The Surrogate Court is Rubinstein’s Family Business

"Near the poster is a placard for his father, E. Ivan Rubenstein, the Surrogate of Brooklyn from 1950 to 1955. Not far away is a poster of Seth's grandfather, Moe Rubenstein, who was once tax appraiser in Brooklyn Surrogate's Court. Though Seth Rubenstein has never run for Surrogate, he has practiced probate law for nearly 33 years. His son, Joshua, does likewise for Rosenman & Colin in Manhattan.

The Rubenstein collection also includes advertisements for Bernard Bloom, the incumbent Brooklyn Surrogate; a painting of Nathan Sobel, one of Judge Bloom's predecessors; and a collage fashioned from Lambert campaign literature, supplied by Mrs. Lambert herself. The collage is precisely the same size as the poster and actually is better positioned, because it is not obscured whenever someone opens his hallway door." -NY Times, July 17,1992

Update

A list of appointments furnished by OCA going back to 1975 recorded Mr. Rubenstein as receiving 73 fee awards from cases in which he had been appointed as a fiduciary by judges in either Surrogate's or Supreme Court. Mr. Rubenstein disputed the list's accuracy, however, stating that in 36 of those cases a judge had not appointed him but instead had approved the payment of his fees for work he had done as an attorney for the family or a bank. As a guardian ad litem appointed in the case of tobacco heiress Doris Duke, Mr. Rubenstein said, he was awarded an $88,350 fee. -NY Law Journal, August 21, 2008

The reclusive tobacco heiress Doris Duke, who died in 1993, wanted her estate of $1.2 billion to go toward the improvement of humanity. But a dispute over the estate in Manhattan Surrogate's Court became what one lawyer called the "world series of litigation," with big name law firms vying for a piece of the pie.

"The dispute that played out in Surrogate's Court was, in the words of one lawyer, ``the World Series of litigation,'' with big-name law firms playing for big stakes. Now the contest over Duke's estate has gone into extra innings. The prizes this time are legal and estate administration fees that already amount to $10 million and probably will more than double when all of the requests are filed with the court. Lawyers flew across country charging their hourly rate as they went, sometimes as high as $450 an hour. They stayed in New York City's finest hotels. And in court appearances and meetings, clients often were represented by multiple lawyers, causing a gridlock of expensive suits and large briefcases." - NYTimes, January 24, 1997

The Brooklyn Ethics Report

Seth Rubinstein recently hired the former chief court attorney from the Brooklyn Surrogate’s Court. A recently elected full-time judge asks whether he/she may preside when the former chief court attorney or his/her associates appear before him/her as attorneys.

NY State Courts
Judicial Ethics Opinions
Opinion 08-91
June 6, 2008

Digest: (1) A recently elected full-time judge is not necessarily disqualified from presiding when the former chief court attorney who left the court immediately before the judge assumed the bench appears in the judge’s court. The judge may ask relevant questions to determine if the former chief court attorney’s current role representing clients in the judge’s court creates an appearance of impropriety and must be guided by the Code of Professional Responsibility and any applicable case law and statutes. The judge also may question the former chief court attorney’s partners and/or associates for the same purpose. (2) For two years after the chief court attorney’s employment with the court ended, a court attorney referee who was subject to the former chief court attorney’s supervision should disqualify him/herself when the former chief court attorney appears before him/her. Such disqualification is subject to remittal. (3) A court attorney referee also may question the former chief court attorney’s partners and/or associates to determine if their involvement in a case that was pending in the court during the chief court attorney’s tenure creates an appearance of impropriety.

Rules: 22 NYCRR 100.2(A); 100.2(B); 100.3(E); 100.3(F); 100.6(A); 101.1; Opinions 08-12; 05-96; 04-121.

Opinion:

A recently elected full-time judge asks whether he/she may preside when the former chief court attorney or his/her associates appear before him/her as attorneys. The attorney left the position of chief court attorney immediately prior to the date the judge assumed the bench.

A judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). He/she shall not allow family, social, political or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). In Opinion 04-121, the Committee advised that a judge is not necessarily disqualified when a former judge of the court appears before him/her as an attorney. Rather, “[i]t is for each judge of the court to determine for him or herself whether the relationship with a former full-time judge or a part-time judge is of such a nature that an appearance of partiality might be created” (id.). Here, the attorney appearing before the inquiring judge served not as a judge, but as the chief court attorney, and left the court before the judge assumed the bench. It is the Committee’s view, therefore, that the inquiring judge is not necessarily disqualified when the former chief court attorney appears before him/her. The judge must determine whether there is any other factor that warrants his/her disqualification.


Where the former chief court attorney appears on cases that were pending in the court while he/she served in that capacity, “ . . . the judge may ask such questions as are relevant in each case to determine if there is a conflict between the attorney’s current role representing clients before the court and the attorney’s former role as court attorney for the same court. The answers to any such questions will serve to inform the parties of the extent of the attorney’s actual involvement in a particular case as a court attorney and will allow the judge to evaluate whether the attorney’s continued involvement would create an appearance of impropriety” (Opinion 05-96). The judge in the present inquiry, therefore, may question the former chief court attorney when he/she appears to determine if his/her continued involvement in a particular case will create an appearance of impropriety. As the Code of Professional Responsibility and any applicable statutes or case law govern the propriety of an attorney’s appearance in such cases, the Committee declines to comment on any issues to be considered in that regard as they are beyond the Committee’s jurisdiction (see 22 NYCRR 101.1 [There shall be an Advisory Committee on Judicial Ethics to issue advisory opinions to judges and justices of the Unified Court System concerning issues related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties]).

The judge also may question the former chief court attorney’s partners and/or associates, who appear on cases that were pending in the court while the chief court attorney was employed by the court, to determine both the extent of the former chief court attorney’s involvement in the case while he/she was employed there, and the extent to which the former chief court attorney has discussed the case with his/her partner and/or associate appearing on the case since his/her employment by the court ended (see NYCRR 100.2[A]; Opinion 05-96). The judge should refer to the Code of Professional Responsibility and any applicable statutes or case law to determine the propriety of a partner’s or associate’s appearance in such cases.

The judge also asks whether it is appropriate for the former court attorney or his/her associates to appear before court attorney referees in the judge’s court. The judge advises that the chief court attorney was expected to review all files sent to the court, to assign the files to a court attorney referee, to provide direction to the assigned court attorney referee as to how a case should proceed, and to review all substantive decisions.

Court attorney referees are subject to the Rules Governing Judicial Conduct in the performance of their judicial functions (see 22 NYCRR 100.6[A]; Opinion 08-12), and therefore also must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Like a judge, a court attorney referee cannot allow family, social, political or other relationships to influence his/her conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).


In the Committee’s view, a court attorney referee’s impartiality might reasonably be questioned when his/her former supervisor appears before him/her and, therefore, should disqualify him/herself from all proceedings in which the former supervisor appears for two years after the former supervisor’s employment with the court ended (see 22 NYCRR 100.3[E]). If a court attorney referee discloses the basis for his/her disqualification, however, and the parties who have appeared and not defaulted and their lawyers, without the court attorney referee’s participation, all agree on the record that the court attorney referee should nevertheless preside, and the court attorney referee believes he/she will be impartial and is willing to participate, the court attorney referee may participate in the proceeding (see 22 NYCRR 100.3[F]). Absent an agreement to remit the disqualification, the court attorney referee must recuse him/herself from the proceeding.

As is the case with the judge, a court attorney referee also may question the former chief court attorney’s partners and/or associates, who appear on cases that were pending in the court while the chief court attorney was employed there, to determine both the extent of the former chief court attorney’s involvement in the case while he/she was employed by the court and the extent to which the former chief court attorney has discussed the case with his/her partner and/or associate appearing on the case since his/her employment by the court ended (see NYCRR 100.2[A]; Opinion 05-96). A court attorney referee also should refer to the Code of Professional Responsibility and any applicable statutes or case law to determine the propriety of a partner’s or associate’s appearance in such cases.
http://www.nycourts.gov/ip/judicialethics/opinions/08-91.htm

More on the History of Surrogate Court Reform

http://www.gothamgazette.com/article/fea/20050704/202/1472

http://www.gothamgazette.com/article/fea/20050704/202/1472