Thursday, December 4, 2008

Excessive Fee Sanction

An attorney found to have charged excessive fees for a period of several years in his capacity as counsel to the public adminstrator of Kings County was suspended for two years and until further court order by the New York Appellate Division for the Third Judicial Department. The court described the misconduct as follows:

In his capacity as counsel to the public administrator of Kings County, respondent charged and collected excessive fees, in contravention of SCPA 1108 (2) (c) and in violation of the Appellate Division disciplinary rules (see Code of Professional Responsibility DR 2-106 [a], [c] [3] [22 NYCRR 1200.11 (a), (c)(3)]) (charge II). Specifically, respondent was appointed counsel to the public administrator in 1997 and then, for a period of about five years, he failed to comply with a 1993 amendment to SCPA 1108 (2) which requires that before any fee is considered and approved by Surrogate's Court, counsel to the public administrator must submit an affidavit of legal services detailing the services rendered, time spent, and the method or basis by which compensation is requested. The 1993 amendment was part of a reform effort stemming from an investigation of abuse of compensation to such counsels by the New York State Attorney General and Comptroller. During the five-year period, the Surrogate awarded respondent $8,613,009.35 in legal fees. Of that amount, a little less than one fourth was net income to respondent (see Matter of Feinberg, 5 NY3d 206, 213 [2005]). In May 2002, after respondent learned that an article was about to appear in a newspaper concerning his receipt of excessive fees, he met with the Surrogate who directed him to submit, nunc pro tunc, affidavits of legal services detailing the work respondent completed on estate files from the date of his appointment. He did so, but not a single fee was adjusted by the Surrogate.

The court also sanctioned the public administrator, who had earlier been removed from judicial office, and herein was disbarred:

...he repeatedly disregarded the clear statutory mandates of his office over the course of more than five years and 475 proceedings, educating himself on the SCPA requirements only in response to the newspaper's investigatory series. According to the Court of Appeals[in the removal proceeding], the record reflected not mere lapses or errors in judgment, but a wholesale failure of respondent's duty, an indifference, if not cynicism, toward his judicial office, and a debasement of his office that eroded public confidence in the integrity of the Judiciary. The Court of Appeals also concluded that the taint of favoritism in the case was strong.

(Mike Frisch)

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