Com. of Pa. v. Local Union 542, Intern. Union of Operating Engineers

• Decision Date: 07 February 1977
• Docket Number: Nos. 76-2266,76-2470,s. 76-2266
• Citation: 552 F.2d 498
• Parties: COMMONWEALTH OF PENNSYLVANIA et al. v. LOCAL UNION 542, INTERNATIONAL UNION OF OPERATING ENGINEERS, et al. Appeal of Abraham E. FREEDMAN, Esquire.
• Court: U.S. Court of Appeals — Third Circuit

Page 498

552 F.2d 498

COMMONWEALTH OF PENNSYLVANIA et al. v. LOCAL UNION 542, INTERNATIONAL UNION OF OPERATING ENGINEERS, et al.

Appeal of Abraham E. FREEDMAN, Esquire.

Nos. 76-2266, 76-2470.

United States Court of Appeals,

Third Circuit.

Argued Dec. 2, 1976.

Decided Feb. 7, 1977.

Page 500

Martin J. Vigderman, Charles Sovel, Freedman, Lorry, Vigderman, Weiner & Sovel, Philadelphia, Pa., for appellant.

David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Bonnie Brigance Leadbetter, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before ROSENN, FORMAN and GARTH, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

These criminal contempt cases against an attorney require us to consider the sensitive distinctions between zealous representation of a client's interests and contumacious interference with the orderly progress of trial

Page 501

court proceedings. ¹ With full appreciation of the contentious role of trial counsel, ² yet with due regard for the essential power of the trial court to function effectively, ³ we conclude that the courtroom conduct of the attorney in these cases far exceeded the limits of proper advocacy, and we affirm the orders of criminal contempt entered against him

I.

Abraham E. Freedman appeals from two orders of criminal contempt entered against him in the course of a continuing trial in the United States District Court for the Eastern District of Pennsylvania. ⁴ Both were summary citations imposed under Rule 42(a) of the Federal Rules of Criminal Procedure, ⁵ and the incidents giving rise to both orders were sufficiently similar for us to have the cases consolidated for expedited appeal. Because the issues raised in the two cases are not completely identical, however, we shall deal with each order separately. ⁶

The incident underlying the first contempt order (No. 76-2266) occurred on September 28, 1976, the fifty-first day of a non-jury trial on a civil rights class action brought by the Commonwealth of Pennsylvania and certain named individuals against, inter alia, the local union represented by appellant Freedman. The complaint alleges that the defendants discriminate against minority group members "in the recruitment, apprenticeship, membership, training, upgrading, referral, and representation of men who work within the operating engineers(') craft . . . ."

Plaintiffs offered as a witness one Bennett O. Stalvey, Jr., who, as Area Coordinator and Regional Director of the Philadelphia Regional Office of the Office of Federal Contract Compliance, had executed an affidavit that was appended to the plaintiffs' complaint. Stalvey had stated in his affidavit that "serious questions concerning the availability of membership in, and the referral practices of, Local 542 led to the withholding of over 30 million dollars ($30,000,000) in Federal funds from State highway construction from the spring of 1968 until the summer of that year . . . ." In cross-examining Stalvey, Attorney Freedman sought to introduce portions of a pretrial deposition in which Stalvey had stated, allegedly in contradiction of the affidavit, that he could not say that the funds had been withheld "because of Local 542's activity," but could say only that the union's activity had "led to" the withholding of funds. Freedman's method of cross-examining Stalvey about the alleged discrepancy

Page 502

consisted of the lawyer's reading an extensive portion of the affidavit verbatim to the witness

After Mr. Freedman had quoted sixteen questions and sixteen answers from the deposition, opposing counsel objected that no inconsistency had been shown, and moved that "any reading exercises be stopped." The trial judge asked Freedman if he had anything specific to call to the witness's attention, and inquired how many more questions and answers Freedman intended to read from the deposition. "A couple more," Freedman responded. "Just to go over a couple more questions and answers," the judge said. "Then we will focus it. If we are talking about several questions being read, I am just going to ask you to show them to the witness, and we will identify them by pages."

Freedman proceeded to quote five more questions and answers. The judge then interrupted and addressed Freedman as follows:

I thought you were going to read a couple more questions. Apparently you are not. I will make my ruling on the basis of Mr. Goodman's (opposing counsel's) objection. I will sustain the objection of a random reading of notes of testimony on the deposition. If you ask the witness a question, and then if you follow up that question, with a specific reference in the transcript to which you claim there is a contradiction, I will permit it. But it is impossible to focus on a multi-phase series of questions in terms of cross-examination.

The following colloquy ensued:

Mr. Freedman: I object to Your Honor's characterization of my reading a deposition as random.

The Court: I made my ruling.

Mr. Freedman: I am making my objection to Your Honor's ruling, and I am going to state the reason for my objection. I don't think that Your Honor can stop me from doing that.

The Court: I am directing you not to state the basis of your objection. Whatever you have, as a matter of law, as a basis of your objection, you will be the beneficiary of. Now, we will just deter what I think is (an) irrational cross-examination process. So I have made my ruling.

Mr. Freedman: I am afraid I have to give the basis for my objection.

The Court: All right. You may disregard my direction. If you give the basis when I told you not to, I am going to send for the marshal and hold you in contempt.

Mr. Freedman: You can send for the marshal right now, because I am going to give the basis for my objection.

The Court: I am directing you, as an officer of this Court not to state the basis of your objection. Whatever basis you have, you will have the benefit of claiming it. And if you disregard that, I am going to hold you in contempt.

Mr. Freedman: What I have to say, I want to say, not only for Your Honor, but for the Appellate Court if there happens to be a review. I am going to state it.

The Court: Just wait a minute. We will take a five-minute recess. I will send for the marshal.

Following a brief recess, the judge warned Freedman twice more not to state the reason for the objection, and admonished him that he would consider a violation of his order to be criminal contempt. Freedman replied that he considered it his "responsibility under the law" to state the basis of his objection. After two more direct orders not to state the reason for his objection, and two more warnings that a violation of those orders would be considered criminal contempt, Freedman nevertheless proceeded to state the basis of his objection. He had been ordered a total of seven times not to do so; he had been specifically warned four times that if he disregarded the judge's ruling he would be held in criminal contempt. ⁷ The trial judge

Page 503

thereupon held Freedman in contempt, and sentenced him to thirty days in prison. ⁸

On appeal from this contempt order, Freedman urges that his conduct was necessary to protect the record. He contends that he acted in the good faith belief that his action was proper and therefore lacked any criminal intent, and that his conduct did not constitute an actual obstruction of justice.

II.

Our analysis of the issues must commence with a recognition of the historic role of the bench and bar in our jurisprudential system. The American legal system contemplates both an independent, respected judiciary and an independent, vigorous bar. The system takes account of the basic need for the orderly administration of justice. Without order in a courtroom, justice may be empty and evanescent. A balance must be maintained, however, between the necessity for judicial power to curb obstruction of justice in the courtroom and the need for lawyers to present their clients' cases fairly, fearlessly, and strenuously. In preserving the balance, a court must not exercise its summary power of contempt to stifle courageous and zealous advocacy and thereby impair the independence of the bar. On the other hand, the dignity, the independence, and the control of the court must not be degraded by lawyers who "equate contempt with courage . . . . (T)he processes of orderly trial, which (are) the supreme object of the lawyer's calling," must be protected. Sacher v. United States, 343 U.S. 1, 14, 72 S.Ct. 451, 457, 96 L.Ed. 717 (1952).

A.

The appellant argues that the district judge erred in restricting the method of cross-examining witness Stalvey. In order to ensure the availability of appellate review of the judge's ruling, Freedman insists, he had to state the reasons for his exception to that ruling; otherwise the court of appeals might decline to consider a challenge to the assertedly erroneous limitation of cross-examination. In essence, Freedman submits that an attorney is free to violate a direct order of a trial judge if the lawyer believes that the protection of his client's interests on appeal requires such action. The appellant relies most heavily on two cases to support his position: In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962), and Morrissey v. National

Page 504

Maritime Union, 544 F.2d 19 (2d Cir. 1976)

In re McConnell, supra, concerned a lawyer who was summarily found guilty of criminal contempt for in-court statements made while representing the plaintiff in an antitrust suit. Plaintiff's counsel, forbidden by the trial judge from proving their conspiracy charge against the defendants, asked counsel for the defendants to stipulate that the plaintiff would have introduced certain evidence of conspiracy had it been allowed to do so. Defense counsel refused to stipulate, however, and instead insisted that plaintiff's counsel prepare their record by following the procedure set out in Rule 43(c) of the...