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In a break with the Commission on Judicial Conduct, the New York attorney general’s office has found that the allegedly excessive fees awarded by suspended Brooklyn Surrogate Michael H. Feinberg, leading to misconduct charges and calls for his removal, were far less than the commission’s $2 million estimate. In a document obtained by the New York Law Journal, the attorney general’s office says that the questionable fees awarded by Feinberg to Louis R. Rosenthal, the former counsel to the public administrator, totaled less than $730,000, far below the $2 million-plus cited when a split panel earlier this year called for the judge’s removal. If the attorney general’s math is better than the commission’s, it could cast the Feinberg case, scheduled for argument at the Court of Appeals on June 9, in a different light. The commission continues to stand by its estimate. The Commission on Judicial Conduct, in an 8-1 opinion, said in February that Feinberg deserved to be thrown off the bench for “awarding fees to his appointee in hundreds of cases totaling millions of dollars.” Given the magnitude of the alleged transgression, the commission said that “a public sanction less than removal for such egregious misconduct would be wholly inadequate.” But in an April 22 letter from Gerald A. Rosenberg, a bureau chief in the attorney general’s office, to Rosenthal, the Department of Law contends the commission erred substantially in its calculation. “[I] assume you will be relieved to learn that we are not adopting the $2 million figure that appeared in the [Commission on Judicial Conduct] Opinion in Matter of Feinberg,” wrote Mr. Rosenberg, chief of the charities bureau in the Division of Public Advocacy. The commission’s demand for Feinberg’s removal stemmed from a New York Daily News probe indicating that the judge had rewarded Rosenthal, a friend and political ally, with excess fees. Rosenthal, a former Civil and Criminal Court judge and Assistant U.S. Attorney, was appointed counsel to the public administrator shortly after Feinberg’s election to Surrogate’s Court in 1996. The public administrator administers the estates of people who die without wills. He or she is paid from assets of the estate, as approved by the surrogate under �1108 of the Surrogate’s Court Procedure Act. Typically, the counsel to the public administrator is paid a percentage of the estate. Throughout New York City — with the exception of Brooklyn — estate administrators historically received a 6 percent share as their fee. But in Brooklyn, administrators got 8 percent until accords in 1988 and 1994 between officials in that borough and the attorney general. Under the agreements between the attorney general and the predecessors of Feinberg and Rosenthal, Brooklyn was to adhere to the same 6 percent ceiling recognized in the rest of the city. Commission staff figured that over a five and one-half year period, Rosenthal was overpaid by about $2.25 million. They arrived at that figure by looking at the total amount that was paid to Rosenthal between 1997 and 2001, which was about $9 million. If the $9 million was based on an 8 percent return rather than 6 percent, Rosenthal was compensated at a rate 25 percent higher than appropriate and shortchanging beneficiaries, the commission staff reasoned. In its opinion, the commission did not cite the $2.25 million figure precisely, but referred to overpayments exceeding $2 million three times in calling for Feinberg’s removal. AMOUNT IN DISPUTE But in his letter, Rosenberg wrote that in the state’s view, the accurate total of overpayments is $729,800, an amount the attorney general is seeking to recover. Although the attorney general was noticed in all fee-generating public administrator matters, it never objected to the fees paid to Rosenthal as approved by Feinberg, some of which it now seeks to recover. “We look forward to sitting down with you … and attempting to work out a settlement of our claims,” Rosenberg wrote to Rosenthal. The letter, which was written after counsel for Feinberg submitted its brief to the Court of Appeals, is not a part of what is now a closed record. But Feinberg’s consistent contention that there was no overpayment is before the Court of Appeals. Feinberg argues that even if there was an overpayment, it did not rise to the level warranting removal. He also argues — with amici support from other judges — that the awarding of fees is a matter of judicial discretion that is outside the province of the Commission on Judicial Conduct. Henry M. Greenberg, of Greenberg Traurig in Albany, N.Y., counsel for Feinberg, refused to comment on the Rosenberg letter. However, in his brief Greenberg criticized the commission’s “back of the envelope calculation” that he said “inflated the … data supplied by the Commission’s counsel.” Greenberg argues in his brief that an accurate accounting can only be obtained by examining each of the estates where Rosenthal was allegedly overpaid, and then adding up those alleged overpayments. He contends, as apparently does the attorney general, that when the calculations are done in that manner, the alleged over-payments are a fraction of what the commission alleges in calling for Feinberg’s removal. COMMISSION’S VIEW DIFFERS Commission Counsel and Administrator Robert H. Tembeckjian said he received the Rosenberg letter Tuesday morning and immediately faxed it to Greenberg. Tembeckjian disputes the attorney general’s accounting and, in any case, maintains that either figure “represents a significant overpayment that was not in the public interest and represented a dereliction of the Surrogate’s responsibility.” “I strongly disagree with the calculation made by the attorney general’s office,” Tembeckjian said. “In my brief to the Court of Appeals, I will demonstrate how the record before the commission supports the finding that the overpayment was approximately $2 million and not $730,000.” Tembeckjian said he would “be happy to discuss with the attorney general’s office how we arrived at the $2 million figure and demonstrate from the record that ours is the accurate number.” Christine VonDohlen-Pritchard, a spokeswoman for the attorney general’s office, said, “We would be happy to meet with the commission to discuss the different calculations, including the methodologies involved and any additional information that might affect the outcome.”

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