Coe, In re, 75474

• Decision Date: 25 July 1995
• Docket Number: No. 75474,75474
• Citation: 903 S.W.2d 916
• Parties: In re Carol COE, Respondent.
• Court: Missouri Supreme Court

Page 916

903 S.W.2d 916

In re Carol COE, Respondent.

No. 75474.

Supreme Court of Missouri En Banc.

July 25, 1995.

John E. Howe, Sam Phillips, Jefferson City, for informant.

Carl W. Bussey, Kansas City, for respondent.

ORIGINAL DISCIPLINARY PROCEEDING

BENTON, Judge.

The Chief Disciplinary Counsel charges attorney Carol Coe with "conduct intended to disrupt a tribunal." Rules of Professional Conduct, Rule 3.5(c). After reviewing the evidence de novo, this Court concludes that Coe violated Rule 3.5(c), and orders a public reprimand.

I.

The charge stems from a 39-day, four-defendant, criminal conspiracy trial in the United States District Court for the Western District of Missouri. The judge held Coe in contempt four times, fining her $100 each for the first three incidents, and ordering her into custody for the fourth (but later releasing her after she apologized). See United States v. Dowdy, 960 F.2d 78 (8th Cir.1992), aff'g 764 F.Supp. 576 (W.D.Mo.1991).

First, on day 15 of the trial, the judge warned: "Miss Coe, you are going to be fined $100.00 every single time you speak beyond my sustaining an objection." 764 F.Supp. at 578 n. 1. On day 19, the judge ruled adversely to Coe. She then gestured with her arms, legs and body, while facing the jury and audience, in order to express displeasure with the ruling.

Second, on day 25, the court overruled a Coe objection, starting this dialogue:

MS. COE: Can you in the name of Jesus be fair.

THE COURT: You, lady, are getting a lot more fairness than you are entitled to in this courtroom.

MS. COE: That's fine. I wish Jesus would touch you so you would stop being so bias every time I get up. It's a problem we can't go into this. When she asked him you let him answer. When I get up there I can't. And I am sick of it--I am sick of it.

THE COURT: Are you quite through?

MS. COE: Yes, I am through.

THE COURT: The objection is overruled. Go ahead, Miss Parker [prosecutor]. We will deal with that during the break, Miss Coe.

MS. COE: You do whatever you want to do. I am tired of you being unfair. When I ask about this incident I can't go into it.

THE COURT: I am going to have you removed from the courtroom if you don't be quiet.

MS. COE: You can do whatever you want. You are the judge. You are in charge. But I am sick and tired of you not letting these people testify directly. You know it's in the report.

Third, on day 30, the court ordered Coe not to ask a repetitive question, initiating this exchange:

MS. COE: If I have to ask something 500 times I am entitled to. Your job is to rule on it.

THE COURT: You are not entitled and my ruling on objections to questions that are repetitious is consistently going to be sustaining the objection from here on.

MS. COE: That's fine. You just sustained this one. If I ask them 500 times, you sustain them 500 times.

THE COURT: That will do you a lot of good.

MS. COE: I am not on trial; my client is. It doesn't do me any good to be subjected to this insult every day.

THE COURT: The insult hasn't even started yet today, Miss Coe. We will deal with that when the jury is gone.

Fourth, Coe stated in open court that "someone" from the judge's office told a subpoenaed witness not to appear at the trial--an allegation denied by the judge. After less than an hour in custody, Coe apologized, and the judge vacated the contempt.

II.

Coe is charged with violating Rule 3.5(c): "A lawyer shall not ... engage in conduct intended to disrupt a tribunal." The master found that Coe "intended to disrupt the flow of the trial and to distract the jury and was blatantly disruptive of the entire judicial process." The master's findings, conclusions, and recommendations are advisory; this Court examines the evidence and determines the facts. In re Harris, 890 S.W.2d 299, 299 (Mo. banc 1994).

Coe admits that the incidents occurred as charged, but offers three theories why they were not intended to disrupt a tribunal.

Coe first argues that these actions did not delay the trial, so they did not disrupt the trial. For support, Coe highlights her request for an early trial date and notes all four incidents took about 45 minutes of a 39-day trial.

Assuming Coe's actions caused minimal delay, the argument fails by equating disruption with delay. The commentary to Rule 3.5(c) focuses not on the pace of a trial, but on the need for decision according to law. Coe's actions directed attention away from the witnesses and the issues toward herself, the gallery, and the judge. These actions could only distract the jury from its duty to decide the case according to law.

Coe next argues that she was baited into this conduct by the trial judge. As clear from the commentary to Rule 3.5(c), a judge's conduct does not justify disrupting a tribunal:

A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

Coe finally argues that her statements were free speech, protected by the first amendment. An attorney's free speech rights do not authorize unnecessary resistance to an adverse ruling:

It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071, 111 S.Ct. 2720, 2743, 115 L.Ed.2d 888 (1991); see also In re Westfall, 808 S.W.2d 829, 833-36 (Mo. banc 1991). Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge. Maness v. Meyers, 419 U.S. 449, 459, 95 S.Ct. 584, 591, 42 L.Ed.2d 574 (1975).

This Court's review of the record leaves no doubt that Coe intentionally disrupted the trial, and thus violated Rule 3.5(c) of the Rules of Professional Conduct.

III.

The issue of discipline remains.

Coe previously received an admonition for a different violation of Rule 3.5(c), for walking out of a 1988 trial with the file (and returning only after receiving a subpoena) in protest of a court ruling. Absent aggravating or mitigating circumstances, when a lawyer earlier received an admonition for similar conduct, a reprimand is generally appropriate. In re Frank, 885 S.W.2d 328, 333 (Mo. banc 1994), citing ABA Standards for Imposing Lawyer Sanctions (1986), § 8.3(b).

As mitigating factors, Coe had no dishonest motive, offered a profuse public apology, and promised not to commit similar misconduct in the future. See ABA Standards, § 9.32. True, as aggravating factors, there are multiple (four) offenses, and Coe apologized and promised not to repeat the conduct only after the absence of remorse was noted by two members of this Court. ¹ See ABA Standards, § 9.22. However, Coe has already been sanctioned--by the contempt order--for the charged misconduct. ABA Standards, § 9.32(k); see Charles W. Wolfram, Modern Legal Ethics 625 (1986) ("Lawyers have rarely been disciplined ... for departures from rules of good order and decorum in the courtroom").

The Chief Disciplinary Counsel cites ABA Standards § 6.22, recommending suspension when a lawyer

knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.

The commentary to § 6.22 cites one case, In re Vincenti, 92 N.J. 591, 458 A.2d 1268 (1983). Vincenti received a one-year suspension for 22 counts of misconduct in two separate trials:

making "constant" and "lengthy" unsupported accusations of judicial extortion, collusion, cronyism, racism, and prejudging;

engaging in collateral actions to gain advantage by demeaning and harassing the judge and opposing counsel;

calling opposing counsel "a thief, a liar, and a cheat" in open court;

making a frivolous motion for disqualification of the judge;

cursing at opposing counsel (using grossly obscene language) in public areas of the courthouse on numerous occasions;

physically threatening opposing counsel (and another lawyer who witnessed the incident); and

disrespecting parties, witnesses, and court officers, in addition to the judge.

Coe's misconduct is far less serious than Vincenti's, and did not harm her client or any other member of the public. See United States v. Turner, 975 F.2d 490, 493 (8th Cir.1992). The primary purpose of a disciplinary action is not to punish the offender, but to protect the public. In re Harris, 890 S.W.2d 299, 302 (Mo. banc 1994); In re Westfall, 808 S.W.2d 829, 836 (Mo. banc 1991). On this record, public reprimand is the appropriate sanction.

IV.

Respondent Carol Coe is publicly reprimanded.

HOLSTEIN, C.J., and WHITE, Sp.J., concur.

ROBERTSON, J., concurs in result in separate opinion filed.

COVINGTON, J., dissents in separate opinion filed.

THOMAS, and LIMBAUGH, JJ., concur in opinion of COVINGTON, J.

PRICE, J., not sitting.

ROBERTSON, concurring in result.

I concur in the result reached by the principal opinion. When this case was initially before the Court, the Court decided that respondent should be suspended from the practice of law. I wrote a dissenting opinion expressing the view that a public reprimand was the appropriate sanction under the circumstances of this case. Judge White concurred in my dissent. The dissent read:

One can hardly disagree with the Court's conclusion that respondent's actions violated Rule 4, Rule 3.5(c). Her actions crossed the line from zealous advocacy to border on the contumacious. My disagreement rests on the Court's answer to the question whether and to what degree this Court should impose the...