N.Y. LAW JOURNAL, By Daniel Wise, December 05, 2008
Former Brooklyn Surrogate Michael H. Feinberg, who was removed from the bench three years ago, was disbarred yesterday by the Appellate Division, Third Department.
In two disciplinary proceedings factually linked to Mr. Feinberg's, the Third Department also suspended Louis R. Rosenthal, the former counsel to the Brooklyn public administrator, for two years, and censured Stephen H. Chepiga, the chief clerk of the Surrogate's Court in Brooklyn since 1998.
Mr. Feinberg was disbarred upon the strength of the Court of Appeals decision in 2005 removing him from the bench for awarding Mr. Rosenthal $8.6 million in fees without requiring affidavits detailing the services he provided as required by law (Matter of Feinberg, D-69-08).
The Third Department found that Mr. Rosenthal had charged and collected "excessive fees" without following proper procedures (Matter of Rosenthal, D-68-08). In recommending Mr. Feinberg's removal, the state Commission on Judicial Conduct had found that Mr. Rosenthal consistently billed 2 percent more for his work than permitted, resulting in more than $2 million in excessive fees (Matter of Chepiga, D-70-08).
The Third Department decision appear on page 7 of the print edition of today's Law Journal.
Fabian G. Palomino, who represented both Mr. Feinberg and Mr. Rosenthal, did not return a request for comment. Mr. Rosenthal also did not return a request for comment, and Mr. Feinberg could not be located.
Mr. Chepiga's lawyer, Peter V. Coffey of Englert, Coffey, McHugh & Fantuzzi in Schenectady, said, "If you talk to anyone in the court system they will tell you that Mr. Chepiga is diligent, hardworking and a man of great integrity and truthfulness.
"He has unhesitatingly been retained in his position" as chief clerk, Mr. Coffey added.
All three decisions were issued per curiam by the same panel: Justices Thomas E. Mercure, Edward O. Spain, Robert S. Rose, Anthony T. Kane and Leslie E. Stein.
"The taint of favoritism is strong" in the relationship between Mr. Feinberg and Mr. Rosenthal, the Court of Appeals found in its removal opinion, Matter of Feinberg, 5 NY3d 206. The Court described Mr. Rosenthal as "a close personal friend and political supporter" of Mr. Feinberg whom the former surrogate appointed as counsel to the public administrator without considering any other candidates.
The counsel to the public administrator is responsible for handling Surrogate Court proceedings relating to people who died without wills and do not have close relatives to handle their affairs.
In disbarring Mr. Feinberg, who was Brooklyn's surrogate for eight years, the panel noted that an attorney may be charged with professional misconduct for the same acts for which he was disciplined as a judge.
Disbarment is necessary, the panel concluded, "to protect the public and preserve the reputation of the bar."
The principal Court of Appeals finding relied on by the Third Department that Mr. Feinberg had failed to familiarize himself with a 1993 amendment to the Surrogate Court's Procedure Act (SCPA), which requires the counsel to the public administrator to support his fee requests with affidavits detailing the services rendered, the time spent, and the method or basis upon which the compensation is computed.
Over five years and 475 proceedings, both the Court of Appeals and the Third Department had found that Mr. Feinberg had remained unaware of the 1993 amendment to SPCA §1108. That amendment had been enacted, the Third Department panel noted, after an investigation by the attorney general and comptroller had found abuses in the award of fees to public administrators' counsel.
The Court of Appeals had described Mr. Feinberg's "consistent disregard for fundamental statutory requirements of office" as demonstrating "an unacceptable incompetence in the law."
With regard to Mr. Rosenthal, the Third Department found that he had collected "excessive fees" for his work by "regularly" requesting fees that reflected the same percentage amount of the total value of the estate he was handling.
In the conduct commissions ruling recommending Mr. Feinberg's removal, it had found that Mr. Rosenthal routinely requested fees pegged at 8 percent of the value of an estate.
The commission noted that surrogates in the city's other boroughs generally pegged compensation for counsel to the public administrator at 6 percent of the value of an estate.
In addition, the commission relied on agreement between the attorney general and Mr. Feinberg's predecessor, Surrogate Bernard Bloom, to limit compensation to 6 percent. The agreement was initially worked out in 1988 and renewed in 1994 (NYLJ, Feb. 15, 2005).
The Third Department also found that rather than submitting the required affidavits of service, Mr. Rosenthal had submitted his fee requests on Post-It notes affixed to formal decrees.
The practice did not change, the panel noted, until the Daily News in May 2002 published an exposé of Mr. Rosenthal's fees and the way they had been approved by the surrogate.
Even then, the panel wrote, Mr. Feinberg re-approved all of Mr. Rosenthal's fees after he retroactively submitted the required affidavits of service.
In censuring Mr. Chepiga, the Third Department found that, though he was aware of the agreement limiting fee awards in Brooklyn to 6 percent, he was "actively involved" in the process of approving awards set at 8 percent of estate value.
The panel described Mr. Chepiga's statement that he was unaware of the 1993 amendments requiring the filing of affidavits to support fee requests as being "somewhat disconcertin[g]."
But in deciding that a censure was the appropriate sanction, the panel cited his "unblemished disciplinary record" and letters attesting to his integrity submitted to the court by Kings County surrogates. Mr. Chepiga's lawyer, Mr. Coffey, identified the authors of the two letters as Surrogate Margarita López Torres and Justice Albert Tomei, a former interim surrogate who was appointed to fill in after Mr. Feinberg was removed.
Though jurisdiction over disciplinary matters normally lies in the department where an attorney has his principal business office, the Second Department issued an order transferring the three cases to the Third Department, said the court's clerk, Michael Novak.