Civil Procedure

Northwestern law prof's $5K charitable donation isn't substitute for attorney fees sanction, federal judge says

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A law professor’s $5,000 charitable donation can’t take the place of attorney fees that he was ordered to pay for wrongly seeking to remove a probate motion to federal court. Image from Shutterstock.

A law professor’s $5,000 charitable donation can’t take the place of attorney fees that he was ordered to pay for wrongly seeking to remove a probate motion to federal court, a federal judge in Colorado ruled Monday.

An opposing lawyer had requested that Bernard S. Black, a professor at the Northwestern University Pritzker School of Law, pay the sanction to the charity of his choice. But U.S. District Judge Daniel D. Domenico of the District of Colorado said the court didn’t have the authority to require a charitable payment, Law360 reports.

A magistrate judge had ordered Black to pay the sanction to the opposing lawyer, and Domenico had affirmed, Domenico said in his Jan. 8 order.

“I understand there may have been some confusion about the appropriate recipient of the award of fees,” Domenico wrote. “Mr. Black’s payment to a charity, even if worthwhile, nevertheless did not satisfy this court’s orders.”

Black has already made the $5,000 donation to an Israeli emergency response organization, according to Law360. He told the publication that Domenico didn’t have authority to order payment to the opposing attorney because he has appealed the sanction. He made the same point in an interview with the ABA Journal.

It’s “generally understood” that a judge doesn’t have power while a case is on appeal, Black says, citing a federal rule that bars judges from correcting clerical errors while a case is on appeal.

The sanction stems from Black’s attempt to remove a state court motion that sought to oust him as a trustee for the conservatorship estate of his sister, who is mentally ill and unable to manage her affairs.

Domenico had said the removal attempt was improper because motions can’t be removed to federal court, and the underlying probate matter couldn’t be heard in federal court.

Black had argued that he could remove a motion, rather than an entire case, to federal court because it named new people and made new claims, essentially constituting a new lawsuit.

“It remains my view that I had perfectly good grounds for removal, and Judge Domenico was wrong,” Black says.

But the circumstances in which a judge’s removal refusal can be appealed are very narrow.

“I tried, and I didn’t succeed,” Black says.

The motion to oust Black was filed after the Colorado probate court found that Black improperly diverted some funds from his sister while serving as executor of his mother’s estate.

Black has contended that he was carrying out his mother’s estate plan to put two-thirds of her estate into a special needs trust for Black’s sister and one-third into a trust for Black and his children. To do that, he disclaimed payable-on-death benefits in his mother’s brokerage account that sent nearly all the funds directly to the sister.

A probate judge ordered Black to reimburse his sister $1.5 million and trebled the damages, which required Black to come up with an additional $3 million.

Black previously told the Journal that he has offered to settle the probate case by transferring all the money into his sister’s special needs trust, but the offer was turned down.

Black says he plans to ask Domenico to reconsider his sanction ruling. He isn’t concerned about the $5,000 as much as he is about a federal magistrate judge’s referral of Black to New York ethics regulators.

“So that’s why I’m appealing,” he says.

Still, he sees Domenico’s ruling on the $5,000 payment as “rather weird” and “rather strange.” He has already paid $5,000 to charity, but Domenico said “no, no, no; that’s not good enough,” Black says. “Why does he care?”

“It’s a puzzle as to why Judge Domenico sort of went out of his way to be nasty, which he clearly did,” Black says. “He could easily have said, ‘$5,000 was awarded, $5,000 was paid.’”

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