This article explains the court’s contempt authority, outlines the important areas in the law of contempt (specifically, criminal contempt) and offers strategies for a lawyer defending against a criminal contempt citation.
“Contempt! How Not to Get Thrown in Jail” was first published in the June 2017 edition of the Georgia Bar Journal.
Lawyers are often held in contempt for reasons that could have been avoided with simple preventative measures, such as filing a conflict letter, or making a phone call to chambers when stuck in traffic.
Judges prefer not to hold a member of the Bar in contempt. But often the same attorney keeps getting in the judge’s craw, pushing the judge over the edge and prompting the judge to take action. Other times, issues such as addiction and mental health raise concerns for the court. While contempt is usually not the best vehicle to address such issues, under certain circumstances contempt may be the only way for a judge to get an attorney’s attention. To be sure, there are also times when the judge misunderstands the law of contempt and is wrong to issue a contempt citation.
This article explains the court’s contempt authority, outlines the important areas in the law of contempt (specifically, criminal contempt) and offers strategies for a lawyer defending against a criminal contempt citation.
Georgia courts are statutorily authorized to “inflict summary punishment for contempt of court” for misbehavior in court (or near the court, if the misbehavior obstructs the administration of justice) and for disobeying lawful orders.1 Additionally, the Georgia Constitution grants each court broad authority to “exercise [its] powers as necessary in aid of its jurisdiction or to protect or effectuate its judgments.”2 Specific grants of authority aside, the judicial contempt power is often referred to as “inherent” — without it, the court could not preserve order or perform its public duty.3
Although the court has broad power to punish for contumacious conduct, that power is not absolute.
Criminal Contempt Versus Civil Contempt
Broadly, “contempt” refers to “disregard for or disobedience of the order or command of the court,” including “the interruption of court proceedings.”4 The distinction between criminal contempt and civil contempt lies in the punishment imposed for the contempt. “Criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.”5
In International Union, United Mine Workers of America v. Bagwell, the U.S. Supreme Court stated that criminal contempt “is a crime in the ordinary sense,” and that “criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.”6 As such, the criminal contempt requires proof beyond a reasonable doubt.7 If the contempt is directed toward the court (i.e., “direct” contempt, discussed later) and the judge is not involved in the controversy, an attorney has no right to a hearing.8 Courts, though, must provide the contemnor a chance to explain the reasons for their actions before announcing punishment.9
In superior court and state court, the maximum punishment for each count of contempt is a 20-day jail sentence and a $1,000 fine.10 In magistrate court, the maximum punishment is a 10-day jail sentence and a $200 fine.11 In probate court, the maximum punishment is a 20-day jail sentence and a $500 fine.12 In juvenile court, the maximum punishment for an adult is a 20-day jail sentence or a $1,000 fine (but not both).13 These restrictions apply to criminal contempt—not to sanctions imposed for civil contempt.14
As noted above, civil contempt imposes conditional sanctions with the purpose of coercing future compliance with an existing order. With civil contempt, the contemnor has the power to avoid sanctions, which is why those subject to civil contempt sanctions are often said to “carry the keys of their prison in their own pockets.”15 The standard of proof for civil contempt is a preponderance of the evidence.16
The statutory restrictions on punishment for criminal contempt do not apply to civil contempt. Thus, sanctions for continuing contempts can exceed those allowed for criminal contempt.17
Direct Contempt Versus Indirect Contempt
Contempt (criminal or civil) is either direct or indirect. Direct contempt involves conduct directed toward the court; contemptuous conduct outside the courtroom, beyond the court’s presence, is considered indirect contempt.18 “The procedures that a trial court must follow to hold a person in contempt depend upon whether the acts alleged to constitute the contempt are committed in the court’s presence (direct contempt) or are committed out of the court’s presence (indirect contempt).”19
In direct criminal contempt matters, due process is satisfied “by simply giving counsel an opportunity to speak on her own behalf.”20 After having given that opportunity, the court can “announce punishment summarily and without further notice or hearing.”21
Examples of direct contempts committed by attorneys are a failure to give prompt notice of a conflict, failure to appear at a calendar call and failure to show up for a trial.22 Under these circumstances, courts must provide the contemnor a chance to explain his or her actions before announcing punishment.23
With indirect criminal contempt, “the considerations justifying expedited procedures do not pertain.”24 Indirect contempt cannot be summarily adjudicated—“due process requires that a person who is tried for indirect criminal contempt is entitled to more normal adversary procedures,” including being advised of the charges, having a reasonable opportunity to respond, being permitted to obtain counsel and having the right to call witnesses.25
Contempt and the Recusal of Judges
Judges and lawyers alike are sometimes confused as to what triggers judicial recusal from a contempt action. Thankfully, the Court of Appeals provided an instructional opinion about this issue in In re Schoolcraft.26 In Schoolcraft the Court stated,
In order to maintain order in his courtroom, a trial judge has the power to issue an order of contempt for conduct conducted in his presence and after affording the contemnor an opportunity to be heard, to determine punishment summarily without further proceedings . . . . ‘[But where] the announcement of punishment is delayed, and where the contumacious conduct was directed toward the judge or where the judge reacted to the contumacious conduct in such a manner as to become involved in the controversy, the judge may give the attorney notice of specific charges, but the hearing, including the attorney’s opportunity to be heard, must be conducted by another judge.’27
The trial judge in Schoolcraft had granted a criminal defendant a bond based on information the defendant’s attorney provided in response to the judge’s questioning. The judge later concluded that the information was false. The judge issued a contempt citation, scheduled a hearing and presided over the contempt hearing. At the hearing, the attorney admitted that the information was false but attributed the matter to misunderstanding the judge’s question.28 The judge, however, “did not think his question could have been misinterpreted” and sentenced the attorney to 48 hours in jail and 40 hours of community service, and ordered that the attorney’s name be stricken from the county’s appointed counsel list.29
The Court of Appeals concluded that the trial judge erred in presiding over the contempt hearing himself.30 There was “no question that the allegedly contumacious conduct was directed toward the judge, as it occurred in direct response to the judge’s question.”31 The hearing transcript, furthermore, “raise[d] an inference that the trial judge had become involved in the controversy as he necessarily applied his impressions from the prior bond hearings in reaching his finding of contempt.”32 The Court of Appeals added, “It is difficult to maintain the objectivity required of a fair and impartial judge when you are deciding whether it is your version or the defendant’s that is correct.”33
The Burden of Proof and Due Process in Criminal Contempt Cases
Contempt must be proven beyond a reasonable doubt. Willfulness is an element that must be proven in all contempt cases.34 Furthermore, the accused has the right to be represented by counsel and to be heard in non-summary contempt actions.35
In 2008, the Supreme Court of Georgia issued In re Jefferson,36 an important opinion concerning contempt issues. In Jefferson, the Court granted certiorari to “clarify the proper standard for determining whether a lawyer’s comments during trial constitute contempt of court.”37 During the trial, the judge cited the attorney with eight instances of contemptuous conduct that included the following: “inappropriate facial expressions, a disrespectful tone of voice, and improper statements.”38 The attorney’s punishment was 30 days in jail. On appeal, the Court held that to find an attorney in contempt the court must first find “the attorney’s statement and attendant conduct either actually interfered with or posed an imminent threat of interfering with the administration of justice and that the attorney knew or should have known that the statements and attendant conduct exceeded the outermost bounds of permissible advocacy.”39
This opinion provided a non-exhaustive list of factors that may help trial courts in determining whether statements or actions by the attorney should be considered contemptuous.40 Those factors, however, must be viewed against the backdrop of an attorney’s obligation to zealously represent clients. The Court stated, “In light of the important constitutional rights involved, we are of the opinion that, in adjudicating a case of possible contempt, ‘doubts should be resolved in favor of vigorous advocacy.’”41 Jefferson is a must-read case for all lawyers for its excellent language concerning the right to vigorously advocate on behalf of a client.
Defending Contempt Matters
When faced with a contempt action, a lawyer should contact another lawyer who is well-versed in the nuances of contempt. That is particularly true if the lawyer’s situation does not involve summary contempt. “He who represents himself has a fool for a client” is accurate even for skilled lawyers.
The first task is to determine the allegations against the lawyer, and whether they are criminal or civil. If the matters in question occurred in court, there should be a record of the incident. If the lawyer is in court and an issue occurs with the judge, the lawyer should promptly confirm the court reporter is actively taking down what is being said.
The second task is to evaluate the extent to which a simple apology can resolve the matter. In this author’s experience, judges typically want to hear an acceptance of responsibility. If the issue is not one of real seriousness (i.e., the lawyer is late to court or failed to file a conflict), it is often sufficient to explain to the court that the lawyer is sorry for the mistake.
A prime example of where an apology would have been more than sufficient occurred during the O. J. Simpson murder trial. During the trial, prosecutor Christopher Darden drew the ire of Judge Lance Ito. The court threatened to hold Darden in contempt but dropped several obvious hints that an apology would resolve the issue. Darden dug in his heels, refused to apologize and requested counsel for the contempt action. The famous trial lawyer, Gerry Spence, who was conducting a play-by-play of the trial in the press section of the courtroom—out of sheer frustration at Darden’s obtuseness—slammed down his writing pad, exclaiming “Jesus Christ.” Judge Ito responded to Spence’s outburst, “Mr. Spence, your comments aren’t necessary.”42 A lawyer who is afforded the opportunity by a trial court to squash the issue before it goes any further should accept it. Negligence is not sufficient for a contempt conviction. It is wise to accept the mistake if it guarantees the contempt action is dismissed.43
In defending the situation, the attorney for the alleged contemnor should proceed cautiously and lay out a strategy for moving forward if it is clear the situation involves more than simple negligence. In many instances, there will be a laundry list of allegations contained within a petition or motion for contempt. If a contempt action is filed, it is always recommended to file an immediate response with a brief in support rebutting the contempt allegations. Likewise, it is imperative to immediately reach out to the opposing attorney to gain a better understanding of the allegations, and determine if an evidentiary hearing is avoidable by reaching a resolution.44 In this author’s experience, trial courts will require court approval of any settlements of criminal contempt proceedings.
It is not this author’s place to address specific strategies and the preparation necessary for contempt hearings. However, if the lawyer charged clearly committed a contemptuous act, the lawyer should immediately start working on mitigation in an attempt to avoid a contempt conviction or to decrease the punishment given after conviction.
If a lawyer is convicted of contempt for something that did not happen in the presence of the court, the trial court must grant a supersedeas bond.45 As discussed above, it is important, for a multitude of reasons, to discern whether the act(s) occurred in the presence of the court.
Should the trial court refuse to grant a supersedeas bond, the lawyer must seek relief with either the Court of Appeals of Georgia or the Supreme Court of Georgia. Living in an electronic world, we no longer have to scramble to get to either court seeking an order for relief. Lawyers can file an application online with those respective courts. For the Court of Appeals of Georgia, the practitioner must log in to their account, click on the link that says “Emergency Motion,” and there is a drop-down menu for contempt action filings. For the Supreme Court of Georgia, the emergency petition may be filed through the Court’s E-File system by using the “file a case” icon.
A recent line of cases suggests that a lawyer’s appeal of a contempt conviction will rarely, if ever, become moot, regardless of whether the lawyer has paid a fine or completes a jail sentence. The rationale is that a contempt conviction has continuing adverse consequences to a lawyer’s career that are not mooted by the punishment imposed being satisfied.46
Common Contempt Issues
Two of the most commonly occurring contempt issues involve the failure to send conflict letters and the failure not to appear in court. While many attorneys think that only a phone call to chambers should suffice, a phone call may not be sufficient for a particular judge.
Under Uniform Superior Court Rule 17.1, Method of Resolution, there is a clear explanation regarding court conflicts, when they are to be filed, and to whom they should be sent. The attorney is responsible for notifying all interested parties of his or her proposed method of resolving the conflict.47 If there is disagreement with the proposed resolution, it is up to the different judges and/or clerks to resolve the conflict, not the attorney.48 This is why it is imperative that a lawyer provides a notice of conflict as soon as practicable: so that the court has enough time to find a resolution.
Under Uniform Superior Court Rule 17.1, lawyers “are expected” to give seven days’ notice, in writing, of the conflict.49 As trial lawyers are aware, however, there are occasions when they may be notified of a court date within a shorter time period. In fact, the Supreme Court of Georgia in Foster v. Gidewon50 opined that filing a conflict notice seven days before the scheduled court date was not mandatory and not always even possible: “The rule’s ‘expectation’ of seven days notice reflects the reality that it is not always feasible or reasonable for counsel to provide a court with notice seven days in advance . . . .”51 Stating that something is not mandatory is sometimes lost on lawyers and the trial courts, but lawyers must always do their level best to provide notice as soon as practicable.
A myriad of issues will always confront the trial lawyer beyond just the scope of representation of a client. It is the nature of trial practice. Court proceedings are normally adversarial, and there may be heated moments where even the judge and the lawyers may display uncharacteristic aberrant behavior. Should lawyers find themselves in a situation where the court is claiming conduct unbecoming, it is imperative that the lawyer assesses the situation and quickly take action to protect him or herself. ? Lawrence J. Zimmerman has been practicing state and federal criminal defense for almost 19 years throughout Georgia and other states. He is the chair of the Lawyer’s Assistance Committee for the Georgia Association of Criminal Defense Lawyers. He has a boutique practice focusing on serious criminal offenses. He also provides legal commentary for different media organizations.
1. O.C.G.A. § 15–1–4(a) (2015); see also O.C.G.A. § 15–1–3 (2015) (enumerating the powers of court, including the powers to preserve order in court proceedings, to compel obedience to orders, and to control the conduct of those connected with a judicial proceeding before the court).
2. GA. CONST. ART. VI, § I, ¶ 4.
3. See, e.g., In re Sprayberry, 334 Ga. App. 571, 571, 779 S.E.2d 732, 732 (2015) (“[T]he contempt power is inherent in every court and, as such, is not subject to abridgment or restriction by the Legislature.”) (quoting In re Jefferson, 283 Ga. 216, 217, 657 S.E.2d 830, 831 (2008)).
4. In re Herring, 268 Ga. App. 390, 390, 601 S.E.2d 839, 840 (2004).
5. In re Hughes, 299 Ga. App. 66, 67 n.2, 681 S.E.2d 745, 747 n.2 (2009).
6. 512 U.S. 821, 827 (1994).
7. See id.; In re Burgar, 264 Ga. App. 92, 94, 589 S.E.2d 679, 681–82 (2003).
8. In re Shook, 254 Ga. App. 706, 707, 563 S.E.2d 435, 436 (2002).
9. Ramirez v. State, 279 Ga. 13, 14, 608 S.E.2d 645, 646 (2005).
10. O.C.G.A. § 15–6–8(5) (2015); O.C.G.A. § 15–7–4(5) (2015).
11. O.C.G.A. § 15–10–2 (Supp. 2016).
12. O.C.G.A. § 15–9–34(b) (2015).
13. O.C.G.A. § 15–7–4(a)(5) (2015).
14. E.g., ChatfGa. 190, 193, 646 S.E.2d 247, 250 (2007) (the statutory “monetary limitation addresses the circumstance of criminal contempt and is not applicable to sanctions imposed for civil contempt”; fine of $1,500 per day until compliance with the order upheld).
15. Feiock v. Feiock, 485 U.S. 624, 633 (1988).
16. E.g., In re Estate of Banks, 339 Ga. App. 144, 146, 793 S.E.2d 451, 453 (2016).
17. See, e.g., Adkins v. Adkins, 242 Ga. 248, 248, 248 S.E.2d 646, 647 (1978) (statutory limitation on imprisonment for contempt inapplicable to continuing violation of child support order; order imposing a sentence of six-month imprisonment lawful because order provided for purge of the contempt upon payment); Chatfield v. Adkins- Chatfield, 282 Ga. 190, 193, 646 S.E.2d
247, 250 (2007) (the statutory “monetary limitation addresses the circumstance of criminal contempt and is not applicable to sanctions imposed for civil contempt”; fine of $1,500 per day until compliance with order upheld).
18. E.g., Newton v. Golden Grove Pecan Farm, 309 Ga. App. 764, 768 n.7, 711 S.E.2d 351, 355 n.7 (2011).
19. Ramirez v. State, 279 Ga. 13, 14, 608 S.E.2d 645, 646 (2005).
20. Johnson v. State, 258 Ga. App. 33, 36, 572, S.E.2d 669, 672 (2002).
21. Dowdy v. Palmour, 251 Ga. 135, 141–42, 304 S.E.2d 52, 56–57 (1983).
22. See, e.g., In re Herring, 268 Ga. App. 390, 391–92, 601 S.E.2d 839, 841 (2004).
23. Ramirez, 279 Ga. at 14, 608 S.E.2d at 646.
24. Newton v. Golden Grove Pecan Farm, 309 Ga. App. 764, 769, 711 S.E.2d 351, 355 (2011) (quoting Ramirez, 279 Ga. at 15, 608 S.E.2d at 647).
25. Id., 711 S.E.2d at 355 (quoting Ramirez v. State, 279 Ga. 13, 15, 608 S.E.2d 645, 647 (2005)).
26. 274 Ga. App. 271, 617 S.E.2d 241 (2005).
27. Id. at 273, 617 S.E.2d at 243–44 (quoting In re Adams, 215 Ga. App. 372, 375, 450 S.E.2d 851, 854 (1994)).
28. Id. at 271–73, 617 S.E.2d at 242–43.
29. Id. at 273, 617 S.E.2d at 244.
30. Id. at 274, 617 S.E.2d at 244.
31. Id. at 273, 617 S.E.2d at 244.
32. Id., 617 S.E.2d at 244.
33. Id., 617 S.E.2d at 244 (quoting Adams, 215 Ga. App. at 377, 450 S.E.2d at 855).
34. E.g., In re Burgar, 264 Ga. App. 92, 94, 589 S.E.2d 679, 681–82 (2003) (“In order to establish criminal contempt, there must be proof beyond a reasonable doubt not only that the alleged contemnor violated a court order, but also that he did so willfully.”).
35. E.g., In re K. J., No. A16A1501, 2017 WL 822471, at *3 (Ga. Ct. App. Mar. 2, 2017); In re Longino, 254 Ga. App. 366, 369–70, 562 S.E.2d 761, 764 (2002).
36. 283 Ga. 216, 657 S.E.2d 830 (2008).
37. Id. at 216, 657 S.E.2d at 831.
38. Id., 657 S.E.2d at 831.
39. Id. at 220, 657 S.E.2d at 833.
40. See id., 657 S.E.2d at 833.
41. Id., 657 S.E.2d at 833 (quoting United States ex rel. Robson v. Oliver, 470 F.2d 10, 13 (7th Cir. 1972)).
42. JEFFREY TOOBIN, THE RUN OF HIS LIFE: THE PEOPLE V. O. J. SIMPSON 287 (1996).
43. Compare In re Patterson, 331 Ga. App. 45, 45–46, 769 S.E.2d 762, 763 (2015) (attorney mistake in calendaring client’s arraignment resulted in attorney’s failure to appear; contempt conviction reversed because the trial court did not find willfulness), with In re Otuonye, 279 Ga. App. 468, 470–71, 631 S.E.2d 500, 503 (2006) (affirming attorney’s contempt conviction when attorney did not notify the court of conflict, appeared at a calendar call 90 minutes late, and could not adequately explain behavior).
44. Codispoti v. Pennsylvania, 418 U.S. 506 (1974) (holding no right to a jury trial in contempt actions).
45. See O.C.G.A. § 5–6–13 (2013).
46. See In re Hatfield, 290 Ga. App. 134, 137, 658 S.E.2d 871, 874 (2008) (attorney’s payment of criminal contempt fine did not moot appeal of contempt conviction “because of possible continuing adverse collateral consequences [the attorney] may suffer as a result of his contempt of court conviction”); In re Hughes, 299 Ga. App. 66, 67, 681 S.E.2d 745, 747 (2009) (same); Ford Motor Co. v. Young, 322 Ga. App. 348, 352–54, 745 S.E.2d 299, 303–04 (2013) (appeal of revocation of pro hac vice admission was not moot even when underlying lawsuit had been dismissed; the order on appeal specifically found violations of Georgia Rules of Professional Conduct, which quot;could affect the attorneys’ careers beyond the context of” the case before the court).
47. UNIF. SUP. CT. R. 17.1(B).
50. 280 Ga. 21, 622 S.E.2d 357 (2005).
51. Id. at 22, 622 S.E.2d at 358.