By Joseph Ax
NEW YORK, Dec 18 (Reuters) - Bronx Surrogate Lee Holzman
should be censured but not removed from office for failing to
fire a lawyer in his court who charged estates hundreds of
thousands of dollars in legal fees before performing any work,
the state Commission on Judicial Conduct ruled on Tuesday.
The commission filed charges against Holzman after Michael
Lippman, the former 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, and its counsel is subject to oversight by
The commission faulted Holzman for not firing Lippman upon
learning that he violated court protocol and for failing to
alert law enforcement and disciplinary authorities about his
"Instead, respondent failed to report Mr. Lippman's
misconduct and permitted him to remain in a position of public
trust for three years under an ill-conceived plan to repay the
unauthorized monies he had collected, thereby putting the
estates under his care at further risk and conveying the
appearance of favoritism," the commission wrote in its decision.
"Respondent's abdication of his ethical responsibilities, which
was influenced by his long and close professional relationship
with Mr. Lippman, constitutes serious misconduct."
The commission, however, dismissed other charges of
misconduct, including a claim that Holzman rubber-stamped
Lippman's fee requests without proper documentation.
Holzman, who has served as surrogate judge in the Bronx
since 1988, is already set to leave the bench at year's end
after reaching the mandatory retirement age of 70.
Holzman's attorney, David Godosky, said Holzman had only
done what he thought was best for the estates under his
"Once the surrogate was informed of any departure of
protocol, not a penny of harm occurred to any estate of the
public administrator's office," he said.
Holzman has 30 days to appeal the decision to the Court of
Appeals. Godosky said a decision on whether to do so has not
In two dissenting opinions, three of the commission's 11
members said they would have gone further and recommended that
Holzman be removed for his actions.
In one dissent, Richard Emery faulted the majority for a
punishment that "defies logic," given the findings.
"Removal is the only sanction which is commensurate with
respondent's uncontroverted, sustained, self-aggrandizing
misconduct," he wrote. "And that is because it is clear that
respondent's three-year cover-up of the criminal acts of his
appointee and long-time colleague was actually an attempt to
protect himself from scandal and cover up his own misconduct."
The commission's counsel, Robert Tembeckjian, had pushed for
Holzman's removal from the bench despite his retirement plans.
"I believed removal from office was the appropriate result
based on the judge's egregious misconduct," he said in a
statement following the ruling.
UNUSUAL PUBLIC HEARINGS
The case was notable not only because of Holzman's stature
but because he chose to waive confidentiality, offering a rare
glimpse inside what are normally closed-door proceedings. That
included a trial last year before retired state Supreme Court
Justice Felice Shea to determine whether the charges of
misconduct should stand, as well as a hearing before the
commission in September.
In both venues, Holzman offered testimony in his defense.
Fewer than a dozen judges have agreed to waive confidentiality
in more than 750 cases since 1978, according to the commission.
Holzman argued that he had taken concrete steps to make
estates whole as soon as he learned of Lippman's transgressions.
Instead of firing Lippman, Holzman instituted a repayment
structure in which Lippman would turn over any new fees he
earned to repay the money he had improperly collected in prior
cases. Holzman also argued that he had no way of knowing the
extent of Lippman's offenses until years later, when Lippman was
charged by the Bronx district attorney's office.
But the commission's counsel countered that Holzman's lax
oversight permitted Lippman's malfeasance to occur and that his
attempt to remedy the problem by allowing Lippman to continue to
work, rather than simply firing him, was a failure of judicial
'BIG BLANK CHECK'
In Tuesday's decision, the commission largely accepted
Shea's findings that other charges of misconduct should be
dismissed, including the claim that Holzman broke the law by
routinely approving a 6 percent fee based on "boilerplate"
documents with insufficient detail about the work Lippman was
Shea noted that other surrogates often did the same thing
and that Holzman should not be held responsible for following
what had become standard procedure, even though it might
technically violate state law.
The 6 percent fee is intended to be a maximum fee for public
administrators under state guidelines but has become the default
payment in almost all cases, Shea said.
In a dissenting opinion joined by Thomas Klonick, Nina Moore
found that charge should have been sustained in order to
establish that the 6 percent figure should not be abused.
Noting that the Bronx administrator's office handles tens of
millions of dollars in estates at any given moment, the
majority's ruling "gives a blank check to counsels to the Public
Administrators," Moore wrote. "It is in all likelihood a big
A Bronx civil court judge, Nelida Malave-Gonzalez, won the
election for Holzman's seat in November and will take office
after his retirement.
The case is the Matter of the Honorable Lee Holzman.
For the commission: Mark Levine.
For Holzman: David Godosky of Godosky & Gentile.
(A prior version of this story incorrectly reported that
Holzman will be censured. The commission held that Holzman
should be censured.)
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