Matter of Schwartz, 12089.
| Decision Date | 29 August 1978 |
| Docket Number | No. 12089.,12089. |
| Citation | 391 A.2d 278 |
| Parties | In the Matter of Alfred M. SCHWARTZ, Appellant. |
| Court | D.C. Court of Appeals |
Alfred M. Schwartz, pro se.
Leo N. Gorman, Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Washington, D. C., and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on brief, for appellee.
Before GALLAGHER, YEAGLEY and MACK, Associate Judges.
Appellant, an attorney, was summarily adjudged guilty of contempt of court and ordered to pay a fine of $200 or serve a sentence of ten days in jail. He contends on appeal the evidence was insufficient to support a finding of contempt. We agree and reverse.
Appellant was counsel for a defendant (husband) in a divorce proceeding in the Domestic Relations Branch of Superior Court. The divorce had been granted by the court in February 1976, but the case was continued for further hearings to determine the questions of custody of the minor child, the amount of child support, and whether attorney's fees should be awarded to the plaintiff (wife). By April 7, 1977, the matter of custody had been settled and, on that date, a hearing was held to dispose of the remaining issues. During the course of this proceeding, appellant attempted to elicit testimony from his client with respect to payments made on the parties' jointly-owned property. The following exchange then occurred:
[PLAINTIFF'S COUNSEL] . . .
[M]y objection [is] that it's not relevant to this proceeding.
Go ahead, Mr. Schwartz. And, with respect to [counsel for plaintiff's] objection, you'll be allowed to cross-examine, but you will be bound by direct.
Call the marshal.
The trial judge subsequently entered a written order of contempt and issued a "Statement of the Court" setting forth the basis of the contempt citation. The court further noted that:
It is the impression of this Court that Attorney Schwartz engaged in conduct deliberately calculated to deprive plaintiff herein of deserved support of the child of the parties. Although the issue of custody was settled by consent, the actions of Attorney Schwartz have delayed the award of a most reasonable amount of support contribution if it is so ordered and an equally reasonable request for counsel fees under the circumstances.
In sum, Alfred M. Schwartz engaged in planned conduct unbecoming a member of the Bar of this jurisdiction, contemptuous of the court and prejudicial to the proper administration of justice. [Emphasis added.]
The power to punish summarily should be exercised sparingly. In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962); Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717 (1952). This is particularly true in contempt cases against lawyers, where there must be limited interference with their right to properly represent their clients. In re Marshall, 423 F.2d 1130 (5th Cir. 1970); United States v. Schiffer, 351 F.2d 91 (6th Cir. 1965), cert. denied, 384 U.S. 1003, 86 S.Ct. 1914, 16 L.Ed.2d 1017 (1966). Naturally, this does not mean that an attorney may engage in hostile behavior or insulting speech designed to disrupt the trial. Nor should an attorney be permitted to delay unduly the course of proceedings. Trial judges must maintain discipline in their courtrooms and take whatever reasonable measures that are necessary to ensure the proceedings are conducted in an orderly and expeditious manner. See In re Nesbitt, D.C.App., 345 A.2d 154 (1975).
In this case, the court precluded, as irrelevant, a course of examination directed to appellant's client. Appellant attempted to state his grounds for the inquiry, but was informed by the court it didn't "have the time" to listen. Appellant persisted in trying to make a proffer for the record, but was not permitted to do so. The court ordered appellant to begin questioning the witness and at the same time, directed the bailiff to "call the marshal." Appellant was then put in the position of having to proceed under pain of removal from the courtroom if he didn't commence his examination immediately with "relevant" questions. Although he may have extended the discussion with the court a bit too long, we do not find in appellant's actions contumacious conduct indicative of a criminal intent to show disrespect for the court or to disrupt the proceedings.
In In re McConnell, supra, an attorney, wanting to provide an appellate record, persisted in questioning a witness after the judge ordered him to cease. The attorney insisted he had a right to prepare his record in this manner "unless some bailiff stop[ped him]." Id. at 235, 82 S.Ct. 1288.2 The Supreme Court reversed his conviction for contempt and held there "was nothing in petitioner's conduct sufficiently disruptive of the trial court's business to be an obstruction of justice." Id. at 235-36, 82 S.Ct. at 1292. Appellant's conduct here was considerably less volatile.
An attorney has the right, if not the obligation, to preserve an issue for appeal or other proceedings. We have recognized that failure to make a proffer in the trial court may preclude appellate consideration of an allegation that evidence was erroneously excluded. E. g., Rafeedie v. Seelye, D.C.Mun.App., 178 A.2d 922, 924 (1962). Counsel also should be normally afforded an opportunity to state briefly and respectfully his legal argument in favor of the admission of evidence. Appellant was deprived of this procedure here. "[W]here the judge . . . affords counsel inadequate opportunity to argue his position, counsel must be given substantial leeway in pressing his contention, for it is through such colloquy that the judge may recognize his mistake and prevent error from infecting the record." In re Dellinger, 461 F.2d 389, 399 (7th Cir. 1972), aff'd after remand, 502 F.2d 813 (7th Cir. 1974), cert. denied, 420 U.S. 990, 95 S.Ct. 1425, 43 L.Ed.2d 671 (1975). This is not to say that an attorney may prolong discussion with the court once the court is advised of his position and an adverse ruling has been made. He has a right to preserve his point for appeal, but not to impede the proceedings. Sacher v. United States,...
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BROOKS v. U.S.
...or with the intent to disrespect the court. See, e.g., Kraut, supra, 580 A.2d at 1314; Gorfkle, supra, 444 A.2d at 941; In re Schwartz, 391 A.2d 278, 281 (D.C. 1978); In re Brown, 320 A.2d 92, 94-95 (D.C. 1974); see also Sykes v. United States, 144 U.S.App. D.C. 53, 55, 444 F.2d 928, 930 (D......
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McBride v. United States, 80-703.
...would have held defense counsel in contempt for pressing a bit further to make an offer of proof. Compare In re Schwartz, D.C.App., 391 A.2d 278, 281-82 (1978) (per curiam) (counsel's persistence in trying to make offer of proof insufficient to sustain contempt citation). On the other hand,......
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In the Matter of Gorfkle
...have recognized that the summary contempt power should be exercised sparingly, especially against attorneys. See In re Schwartz, D.C.App., 391 A.2d 278, 281 (1978) (per curiam). In particular, we have held that "[a] contempt conviction . . . should not be based on a mere technicality, but s......
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State v. Boyd
...115 Cal.Rptr. 601 (1974) (attorney held in contempt for statement, "Your honor, I submit this trial is becoming a joke."); In re Schwartz, 391 A.2d 278 (D.C.App.1978) (attorney had made repeated attempts to object and the court thought this was designed to delay the proceedings); State v. P......