New York State Commission on Judicial Conduct
In the Matter of the Proceeding Pursuant to Section 44, in Relation to Michael H. Weinberg, Surrogate
OPINION BY MR. FELDER, CONCURRING AS TO MISCONDUCT AND DISSENTING AS TO SANCTION
I agree with each of the majority opinion's conclusions and determinations of fact. I do, however, disagree on the appropriate sanction. This is not to suggest that the conduct of respondent was not seriously improper.
Respondent said that when he became a Surrogate he "skimmed through" the SCPA - the very statute that he was required to administer, interpret and enforce. If a lawyer acted similarly, did not do necessary research, or have a necessary understanding of the statutes which were the subject matter of a proceeding in which he was before a Court, sanctions would be available against the lawyer (22 NYCRR §130-1.1).
A Surrogate has an even greater responsibility, and for respondent to state that he assumed this office having only "skimmed through" the statute is appalling. Mr. Rosenthal, who was appointed as counsel for the Public Administrator by the Surrogate, similarly had little experience in the field, having only 5% of his practice in Surrogate's Court litigation. Apparently, as far as the counsel to the Public Administrator in Kings County is concerned, being acquainted with the law is less important than being acquainted with the Surrogate.
It is quite clear that basically it was the Clerk, and, in several instances, the counsel for the Public Administrator himself, who ran the Surrogate's Court - at least as far as counsel to the Public Administrator's fees were concerned. Supporting affidavits in request for fees were required by law (SCPA §1108[c]). Instead, respondent awarded fees based on the "Post-it" method. The file was handed to him, and the Clerk (and, at times, Mr. Rosenthal's office) wrote the amount to be awarded on a Post-It note placed on the file. The amount awarded exceeded by 2% the proper percentage, that being 6%.
It should not pass unnoticed that the foregoing method of fixing fees must have been known to lawyers who practice in that Court, and to various employees of that Court. It is a sad commentary on events that respondent only learned of his obligation from the New York Daily News. The Daily News revealed respondent's practices, and it was only after this that respondent attempted to rectify things by requiring nunc pro tunc affidavits. I find this attempt at remedy, at best, disingenuous. Whether affidavits were prepared on the original fee application (which they were not), or nunc pro tunc, I believe they were never read or analyzed by the Surrogate. The fact is, the requiring of nunc pro tunc affidavits for cosmetic purposes, in my opinion, made matters worse. They were never intended to be read, and represent a cavalier attempt by the Surrogate to meet his lawful obligations while, at the same time, not to meet those obligations. Lest there be any question that these were harmless errors in which there was no victim, there was a victim in each of these cases since the monies, in effect, came out of beneficiaries' pockets. As the majority opinion pointed out, this additional 2%, over time, added up to $2 million. In the larger picture, Mr. Rosenthal, as counsel to the Public Administrator, from January 1997 to May 2002 received approximately $9 million.
I found it disappointing that when respondent was asked at the oral argument whether he would, after all that has occured, end his professional relationship with Mr. Rosenthal, he indicated that he would not. Loyalty to friends is admirable. Loyalty to friends taking precedent over a judge's legal obligations is deplorable.
I agree with Judge Shea that, at least as far as many of his answers given, respondent was not truthful. I find a skein of deception and untruthfulness running through respondent's entire testimony. It is not without interest that Judge Shea notes:
Further bearing on the extent to which respondent's testimony is to be believed were the unfounded representations made by respondent to his attorney which prompted the offering of a stipulation by respondent's attorney on the last day of the hearing with regard to the testimony of Hon. A. Gail Prudenti. (Referee's report, p. 11fn.)
I have sought, to the best of my ability, not to be influenced by respondent's - and even his lawyer's - arrogance, including the tone and tenor at the oral argument, which at times were confrontational.
I reject the suggestion that this is a case of selective prosecution. It is the uniqueness of respondent's judicial position, and his actions, that sets this apart from the conduct of other Surrogates. The corollary of this sort of reasoning is that respondent basically inherited a corrupt system. Even if true, this is not a valid excuse for what occurred here, nor for any type of misconduct.
What respondent did, and caused to happen, is an embarassment to lawyers, litigants and fellow jurists (who, considering training and responsibility, are among the lowest paid and most overworked civil servants in the State). The residents of Kings County - both living and dead - deserve better in their Surrogates.
Having said all of the above, I find myself voting for censure. It is a censure that trembles on the brink of a finding for removal of respondent. While an argument could be made that under existing precedent, removal is the appropriate remedy, I believe a similar argument could be made for censure. I vote for censure in part because respondent has been a judge for 24 years and will, whether by public censure or removal, be subject to public disgrace. Should he continue to perform his duties in the manner in which he has in the past, I would have no hesitation in voting for removal.
It should not be left unsaid that the Honorable Felice K. Shea, the Referee herein, in a difficult situation acted admirably, with great legal acumen, insight and skill, and should be commended.