Friday, December 28, 2012
The Who Are You Kidding Award Goes To Judge Felice O'Shea For Censuring and Not Removing Bronx Surrogate Judge Lee Holtzman
By Joseph Ax
NEW YORK, Sept 19 (Reuters) - Bronx Surrogate Lee Holzman asked
a disciplinary panel Wednesday to dismiss charges of misconduct against
him for failing to fire a lawyer in his court who improperly billed estates
hundreds of thousands of dollars in legal fees before performing any work.
The hearing before the state Commission on Judicial Conduct offered a rare
glimpse inside what are usually secret proceedings. Holzman waived his
right to confidentiality last year.
Fewer than a dozen judges have elected to waive secrecy in more than 750
cases since 1978, according to the commission.
In a crowded hearing room, a lawyer for the commission's counsel and
Holzman's lawyer painted diametrically opposing portraits of the judge in
the months after he learned in 2006 that lawyer Michael Lippman had been
billing legal fees in advance, a violation of the court's protocol.
"The surrogate put in place measures to remedy the problem and protect
the public," said Holzman's lawyer, David Godosky. He claimed the judge
was the only one to act to fix the issue, while investigators from the FBI,
the city's Department of Investigation and the Bronx district attorney's office
did not charge Lippman with any wrongdoing for years.
But Mark Levine, the lawyer for the commission's counsel, told the commission
that Holzman had abandoned his duty to the public and urged it to remove him
from the bench.
"Don't let him fool you," Levine said. "This was a clear abrogation of judicial responsibility."
The commission filed charges against Holzman after Lippman, the counsel to
the public administrator, was indicted in 2010 for stealing $300,000 in excess
fees. Lippman has pleaded not guilty.
The public administrator handles estates for which there is no designated heir.
Rather than fire Lippman, Holzman instead demoted him and instituted a
repayment structure in which Lippman would turn over any new fees he
earned to repay the money he had improperly collected in previous cases.
Holzman said Wednesday he was unaware of the extent of Lippman's
transgressions in 2006.
Last year, a judicial referee, retired state Supreme Court Justice Felice
O'Shea, conducted a three-week trial to determine whether any of the
commission's misconduct charges should stand.
In her July report, O'Shea concluded one count of misconduct should be
sustained for Holzman's failure to terminate Lippman but recommended that
he be cleared of other charges, including claims that he broke the law by rubber-stamping Lippman's fees without enough documentation and that his lack of
oversight led to corruption in his court. She also found that Holzman had
allowed his personal affection for Lippman to color his judgment.
Wednesday's hearing was called to hear arguments from both sides on whether
the commission should accept all, some or none of O'Shea's findings.
Holzman defended his decision, telling the commission it was an appropriate
response that would ensure estates were made whole while forcing Lippman
to complete the work for which he had already been paid. Lippman did not
earn another penny after 2006, he said.
But Levine said Holzman's motives were far more self-serving. He said
Holzman had no desire to expose himself to scrutiny and wanted to protect
Lippman, whom Levine described as a longtime friend of Holzman's.
"He was not my friend," Holzman said in response. "There was absolutely no
attempt to cover it up."
Holzman is retiring at the end of the year after having reached the state's
mandatory retirement age, but Levine said his actions still warranted removal
and would serve notice to other judges that such conduct will not be tolerated.
The commission, which met after the hearing in private to discuss the matter,
will issue a written decision, likely later this fall. If the commission disciplines
Holzman, he will have 30 days to appeal its decision to the court of appeals.
The case is the Matter of the Honorable Lee Holzman.
For the commission: Mark Levine.
For Holzman: David Godosky of Godosky & Gentile.