When Can a Lawyer Be Held in Contempt of Court?

Can you go to jail for doing your job? Assuming your job is not a criminal enterprise, the answer is probably no… unless you are a criminal defense lawyer.

Judges need to maintain order in their courtrooms, and they will sometimes hold people in contempt of court for not following a judge’s orders or for disrupting court – but, when can a lawyer be held in contempt of court?

Lawyers are not held in contempt of court often, although some short-fused judges may threaten it on a regular basis. Although contempt of court may be justified against an attorney who is openly disrespectful or who disregards a court’s order, in general lawyers understand the court’s contempt powers, know where the line is, and appreciate the need for order in the courtroom.

In some cases, contempt proceedings against lawyers are initiated by the Court when a judge has lost his or her temper and: 1) the judge is unwilling or unable to resolve a dispute respectfully, or 2) a defense lawyer is caught in a conflict between the ethics rules and an angry judge’s orders.

I’ve heard criminal defense lawyers who were held in contempt of court because they were defending their client say they wear the contempt citation like a badge of honor…

Public defenders nationwide, who may have huge caseloads that make it difficult or impossible to ethically provide an effective defense for their clients, have taken the brunt of contempt actions from angry judges over the years…

When Can a Lawyer Be Held in Contempt of Court?

The contempt of court power is necessary if judges are going to maintain order in their courtrooms and enforce court orders. There are many situations when the court uses its contempt powers, but most come down to:

  • When a person is disrespectful or defiant to the court or court officers; or
  • When a person willfully fails to obey a court’s order.

Contempt can be civil or criminal. Civil contempt is when a person is jailed or fined until they comply with the court’s order – it is said that they “hold the keys to their own jail cell.”

Criminal contempt is when a person is punished a single time for their actions – they could be fined or jailed, although if they are jailed for a significant period of time they are entitled to a jury trial before they can be sentenced…

Public defenders and other criminal defense lawyers who are held in contempt for doing their jobs effectively are usually held in criminal contempt.

That doesn’t really happen, right? Do criminal defense attorneys really go to jail for doing their jobs?

Defense Lawyer Jailed for Arguing on His Client’s Behalf

A judge in Wisconsin ordered a public defender to be jailed and secured with belly and leg chains during a hearing in Milwaukee County.

The prosecutor asked for cash bail for the attorney’s client based on a questionable drug screen. When the attorney argued against cash bail (which was his job), the judge cut him off and refused to let him speak.

As the parties were leaving, the judge called everyone back, so he could make a better record of the reasons he gave the defendant the cash bail. When the attorney tried to place his arguments on the record, including that his client was entitled to a presumption of innocence, the judge ordered him taken into custody…

He was later released after the judge ordered him to apologize… and his client took another drug test which came back clean.

Another Defense Lawyer Jailed for Arguing That Her Client Should Not Go to Jail

Another judge, this time in Las Vegas, jailed a public defender who was attempting to speak on her client’s behalf.

This public defender filed an ethics complaint against the judge, who is now barred from ever serving as a judge again…

San Francisco Judge Holds Lawyer in Contempt for Putting his Arm Around Client

A judge in San Francisco demanded that a public defender’s client, who was mentally ill and who had requested an interpreter, either plead guilty or he would sentence the client to jail.

When the judge lost his temper and ordered the client to be taken into custody, the public defender put his arm around his client. The judge did not hold him in contempt (for putting his arm around his client) until the public defender filed a writ demanding the reason for his client’s detention…

After the proceedings, the public defender reportedly saw the judge and clerk “fist bump.”

Minnesota Judge Holds Public Defenders in Contempt over Scheduling Conflict

A Ramsey County judge refused to work with an overworked public defender who had multiple courts demanding him to appear for multiple cases. Despite the unethical and overwhelming caseload of the public defender’s office, the judge held both the attorney and his boss in contempt of court when the attorney appeared in another court instead of his…

New Mexico Public Defender Held in Contempt for Refusing to Accept Cases

Despite an attorney’s clear ethical responsibility to limit their caseload so they can provide effective assistance to all clients, public defenders nationwide have found themselves in a position where they must: 1) Knowingly violate the ethics rules and harm their clients, or 2) Be held in contempt of court or lose their job for refusing to accept new cases without adequate funding.

In New Mexico, a judge held the state’s chief public defender in contempt of court, and fined him $1000 for each case that he refused to accept – a fine that would be lifted when he accepted the cases… as this was happening, New Mexico district attorneys were intervening, not to ask for funding or help for the public defenders, but to ask the Supreme Court to order them to take the cases without funding.

California Lawyer Held in Contempt for Refusing to Violate Attorney-Client Privilege

An attorney in California was held in contempt for refusing to testify about statements that her client made to her.

A defense lawyer in Connecticut also refused to testify against his client in the face of a judge threatening to put him in jail…

If you faced the decision of 1) violating attorney-client privilege in a prosecution against your client, or 2) facing contempt charges and possible jail time, what would you do?

An Ohio Judge Jailed a Public Defender for Refusing to Try a Case

Well, he refused to go to trial in a case that he had just been appointed to the day before… no attorney can provide effective assistance to a client without conducting an independent investigation and preparing their case for trial.

Missouri Public Defenders Forced to Accept Unethical Caseloads

In Missouri, the Supreme Court held that public defenders must get permission from the courts before they refuse to accept cases – forcing them to maintain unethical and unsustainable caseloads.

At the same time, the Courts have made clear that public defenders must be held to the same ethical standards as other attorneys – which includes limiting their caseloads and providing effective assistance to all clients.

How Can a Defense Lawyer Avoid Contempt of Court?

Public defenders nationwide have been in crisis for decades as legislatures limit their funding, their caseloads increase, and courts insist that they continue to represent clients. All criminal defense lawyers are in danger of being held in contempt of court when judges attempt to limit their representation of their clients and the attorney doesn’t back down.

Courts should always allow defense attorneys to say what needs to be said for the record and to advocate for their clients. Sometimes a judge will limit an attorney because they are impatient and frustrated. Other times, a judge may limit an attorney because they don’t want the attorney to make a record for appeal…

When a judge orders an attorney to stop talking, however, the attorney should stop talking. Although appellate courts will only consider issues that have been preserved for appeal, this doesn’t require a defense lawyer to disobey a court’s order to stop talking.

An attorney can make a simple statement to the Court that they need to make a record for appeal – if the Court refuses to allow them, their client should be protected for purposes of appeal.

If there are issues that just can’t be considered on appeal without further argument or facts placed on the record, the attorney can file a motion immediately following the hearing, completing the record in writing…

But, what happens when a judge orders you to violate an ethical duty to your client by testifying against them, revealing privileged information, or accepting an unethical caseload?

Charleston, SC Criminal Defense Lawyer

If you have been charged with a crime in the Charleston, SC area, call criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or contact us online to talk to a Charleston, SC defense lawyer today.


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