Matter of Feinberg

Summary

The New York Court of Appeals reviewed the removal of Kings County Surrogate Michael H. Feinberg for systematically awarding legal fees to counsel for the Public Administrator without required affidavits or individualized consideration of statutory factors. The court held that his conduct violated professional-competence and appearance-of-impropriety requirements and accepted the State Commission on Judicial Conduct's determined sanction of removal from office.

Holdings

1. SCPA 1108 (2) (c) requires the surrogate, before allowing counsel fees, to obtain an affidavit detailing the services rendered, time spent, and basis for compensation, and to consider the statutory factors when fixing the fee.
2. A judge's systematic failure over an extended period to comply with clear statutory requirements governing the judge's office constitutes misconduct and may support removal, rather than being treated merely as legal error.
3. Appointing a close personal friend and political supporter and awarding that person substantial, unsupported fees without the required individualized review can convey an appearance of impropriety and favoritism.
4. Removal from the office of Surrogate of Kings County was the proper remedy for Feinberg's misconduct.

Questions Presented

1. Whether Feinberg's repeated failure to require affidavits of legal services and to consider the statutory factors before awarding counsel fees violated his duty to maintain professional competence in the law.
2. Whether the routine award of fees calculated at approximately eight percent of estate values, without individualized review or consideration of the statutory factors, constituted misconduct under the Rules of Judicial Conduct.
3. Whether appointing and favoring a longtime friend and political supporter while approving unsupported and comparatively high fees conveyed an appearance of impropriety.
4. Whether removal from the office of Surrogate of Kings County was the proper sanction.

Disposition

approved