Ethics

From BNA

An attorney's sarcastic physical reaction to a disappointing bench ruling did not rise to the level of criminal contempt, the Georgia Court of Appeals said July 14 in vacating the lawyer's conviction (In re Hughes, Ga. Ct. App., No. A09A0218, 7/14/09).

Applying the test the state supreme court announced last year for gauging whether an attorney may be convicted of criminal contempt based on courtroom conduct, the court found that the lawyer's ?sarcastic, unprofessional? expressions and body movement did not interfere or seriously threaten to interfere with the administration of justice.

Judge Anne Elizabeth Barnes also said on behalf of the court that the trial judge should not have convicted the lawyer on the spot without giving her an opportunity to speak in her own defense.

Negative Reaction

While representing a mother in a child welfare proceeding in juvenile court, Ella Alis Salaam Hughes suggested that while the mother was serving a sentence for contempt her children could be placed with their fathers rather than with state authorities.

The court asked Hughes if the fathers were in court. When she said no, the court announced that it would have to place with children with the state. Apparently seeing Hughes react negatively to its ruling, the court immediately stated ?that expression, ma'am, just cost you $100.?

Hughes tried to interject a comment, but the court directed her not to interrupt and asserted that her ?sarcastic looks? and ?sarcastic attitude? were unacceptable to the court.

Hughes than stated that ?the only thing I did was bow my head to write down what you were saying.? Disputing that portrait of her conduct, the court told her: ?Now you have tested the Court's patience. I find you in willful contempt of this Court. You are fined $1,000 and you are given ten days in jail. Take her into custody.?

The court went on to state that Hughes ?was not just bowing her head but she was giving sarcastic, unprofessional looks, body action that showed her disgust for the Court's ruling and disrespect for the Court in its entirety.?

Later, the court put in writing that Hughes ?made inappropriate facial and body responses to the Court's ruling, that she expressed unprofessional conduct towards the Court, and that she tried to persuade the Court by giving inappropriate explanations of her conduct.?

The court gave Hughes the opportunity, which she took, to avoid jail by paying $1,000. It also removed her from the list of attorneys approved for court appointments, although it permitted Hughes to remain with the appointed cases she was already handling.

No Opportunity to Speak

When Hughes appealed, the state took the position that she had lost the right to challenge her conviction by paying the $1,000 fine. The court disagreed, holding that because Hughes stood to suffer continuing adverse collateral consequences from the contempt conviction and because she was still off the court-appointed attorneys' list, her appeal was not moot.

The court confirmed that the contempt finding was criminal in nature because the lawyer's punishment constituted a sanction for her prior conduct rather than conditional punishment meant to coerce future compliance with a court order. For acts committed in a court's presence?that is, direct contempt?the judge may act summarily and announce punishment after the accused has been given an opportunity to speak in his own behalf, without further notice or hearing, Barnes said.

Faulting the process used to find Hughes in contempt, the court said the trial court erred by imposing punishment immediately and not providing the lawyer an opportunity to speak in her own behalf. When Hughes did attempt to explain her conduct, the trial court increased her fine tenfold, Barnes noted.

Test for Contempt

As for whether Hughes's alleged acts constituted contempt, the court applied the standards set out in In re Jefferson, 657 S.E.2d 830, 24 Law. Man. Prof. Conduct 105 (Ga. 2008), which jettisoned the state's longstanding ?clear and present danger? test for gauging whether an attorney may be convicted of criminal contempt based on statements made in a courtroom.

Jefferson adopted a two-part standard requiring proof that (1) counsel's speech and conduct actually interfered with or posed an imminent threat to the administration of justice, and (2) the attorney should have known that the behavior ?exceeded the outermost bounds of permissible advocacy.? All doubts should be resolved in favor of allowing vigorous advocacy, Jefferson made clear.

Jefferson listed several factors for judges to consider as indicators when making this two-pronged analysis:

? the extent to which the lawyer was put on notice that she was on thin ice;

? the likely impact of the behavior on the fact-finder;

? whether this was an isolated incident or part of a pattern;

? the significance of the issue to the case and the relative gravity of the case; and

? the extent, if any, to which the trial court provoked the lawyer's statements with its own improper statements.

In reviewing the Jefferson standards here, Barnes noted that Hughes was not put on notice before the contempt citation that a continuation of the offending conduct would constitute contempt. Moreover, Barnes said, the lawyer's conduct was highly unlikely to have any impact on the deliberations of the juvenile court.

On the other hand, the court observed that the lawyer's conduct constituted a pattern of behavior and that the trial court did not provoke it.

Barnes also pointed out that the particular issue under discussion at the time was not particularly significant to the case as a whole, whereas the incarceration of Hughes's client was a grave matter as it would result in her children being removed and placed with the state.

Considering these factors, the court concluded that Hughes's conviction must be reversed due to the lack of evidence that her conduct either actually interfered with or posed an imminent threat of interfering with the administration of justice.