The Commission on Judicial Conduct has voted to censure Bronx Surrogate Lee Holzman (See Profile) for failing to report misconduct by Michael Lippman, former counsel to the Bronx public administrator, but will not remove him from the bench.
The majority of the commission said in its opinion, made public yesterday, that Holzman had committed “serious misconduct,” but found that censure was an adequate punishment, citing Holzman’s “lengthy and unblemished tenure as a judge” and his mandatory retirement in less than two weeks.
Holzman’s attorney, David Godosky, said he and his client were reviewing the censure and had not yet decided whether to appeal it.
Three of the 10 commissioners dissented and said that Holzman should have been removed. One of those dissenters, Richard Emery, a partner with Emery Celli Brinckerhoff & Abady, wrote in his own blistering opinion that the case was “one of the most egregious cases that has ever been litigated before this Commission during the nine years that I have served,” and that the majority had “lost its bearings.”
Nina Moore, an associate professor of political science at Colgate University, said in her separate dissent that she did not entirely agree with Emery’s characterization but did agree that censure was too lenient. Commission chairman Thomas Klonick joined in Moore’s dissent.
Commission administrator Robert Tembeckjian, who drafted the charges against Holzman on behalf of the commission in 2011, does not have the right to appeal under the Judiciary Law.
“Naturally, I agree with the three who dissented for removal, but now, as always, we move on in good faith to the next case,” Tembeckjian said in a press release.
The commission alleged that Holzman failed to supervise Lippman, who routinely collected legal fees from estates in advance, and sometimes took more fees than he was entitled to. It also claimed that Holzman approved legal fees based on insufficient information, routinely granting boilerplate requests from Lippman without asking for details required by state law.
When Holzman learned of Lippman’s misconduct in 2006, he demoted him to associate counsel instead of firing him. Lippman was allowed to keep working on estates, using the fees he earned to pay what he owed to other estates.
The commission claimed that Holzman should have fired Lippman immediately and reported him to the Departmental Disciplinary Committee and to law enforcement authorities.
Lippman was finally fired in 2009 by a new counsel to the public administrator, John Reddy. In 2010, Lippman was indicted (NYLJ, July 9, 2010) and is awaiting trial.
The charges against Holzman first went before a referee, former Manhattan Supreme Court Justice Felice Shea. In July, Shea found that Holzman should have fired and reported Lippman. However, she rejected the commission’s claim that Lippman’s conduct resulted from Holzman’s failure to supervise him. She also rejected the claim that Holzman’s approval of boilerplate fee requests was misconduct, saying that the problem was not unique to Holzman but “systemic” in surrogate courts.
The full commission heard arguments in September (NYLJ, Sept. 20).
The majority’s decision affirmed that Holzman should have fired Lippman and reported him to authorities as soon as he learned of the misconduct.
“By allowing a lawyer who had cheated the PA’s office, overcharged estates, lied to him and breached his trust to continue to represent the PA in the administration of estates, respondent put at further risk the estates under his care,” the majority said.
“Respondent’s abdication of his ethical responsibilities, which was influenced by his long and close professional relationship with Mr. Lippman, constitutes serious misconduct,” the majority said.
Nonetheless, the majority said it was “persuaded by the record before us that respondent’s repayment plan, while misguided and ill-conceived, was motivated by a sincere desire to ensure that the estates under his care were made whole by the individual who had already been paid and who was perhaps in the best position to complete the work expeditiously.”
The majority also noted Holzman’s cooperation with law enforcement, his otherwise unmarred record of service and his impending retirement.
Moore said in her dissent that Shea and the commission should have sustained the charge that Holzman approved fee requests based on insufficient information.
“The majority’s implicit endorsement of respondent’s defense that, in essence, ‘everybody does it’ lacks a viable evidentiary base,” she wrote.
“Our response should not be to turn a blind eye to conduct that is clearly contrary to the law, nor to excuse judges who fail to follow the law,” she said. “The proper Commission response to a bona fide widespread pattern of problematic judicial behavior is to confront, rather than excuse the behavior.”
In light of both his failure to comply with state law in approving legal fees and his failure to fire Lippman, Holzman should be removed, Moore said.
“The public will likely find little solace in knowing that the Commission on Judicial Conduct has given a New York State judge a special pass to ignore a state law that is directed squarely at his office,” she said.
Emery’s separate, scathing dissent took aim not only at Holzman but also the majority.
“The notion that the majority can say what it does about Surrogate Holzman’s misconduct and then censure him defies logic, precedent and common sense,” he wrote. “Removal is the only sanction which is commensurate with respondent’s uncontroverted, sustained, self-aggrandizing misconduct.”
Far from being a good-faith attempt to protect estates, Emery said, Holzman’s repayment scheme for Lippman was a self-serving attempt “to avoid the scandal of thefts by his appointee on his watch.”
Emery said he was completely unpersuaded by Holzman’s claim, “which the majority seems to swallow hook, line and sinker,” that he did not suspect the extent of Lippman’s misconduct when he first learned of it.
“Why the majority has lost its bearings in this case is a total mystery to me,” Emery said.
The majority consists of Court of Claims Judge Terry Ruderman; Justice Rolando Acosta of the Appellate Division, First Department; Joseph Belluck, a partner at Belluck & Fox; Joel Cohen, a partner with Stroock & Stroock & Lavan; Paul Harding, managing partner of Martin, Harding & Mazzotti; Richard Stoloff, a partner at Stoloff & Silver, and Court of Claims Judge David Weinstein.
Karen Peters, presiding justice of the Appellate Division, Third Department, resigned from the commission in October and was replaced by Weinstein.
@|Brendan Pierson can be contacted at email@example.com.