Sunday, November 16, 2014

How Not to Practice Law

Last week, in this published decision, the Tenth Circuit affirmed a contempt sanction on a criminal defense attorney.
The attorney had a penchant for continuances. After granting a few, the judge decided against any more and set a firm date for sentencing. The attorney agreed to this date. But ten days before the hearing, the attorney moved for a continuance because the sentencing date now conflicted with a planned family vacation (a vacation planned after the court set a final sentencing date). The judge denied the motion. The attorney went on vacation. He sent substitute counsel to the sentencing hearing, without the consent of the defendant, and so the judge was forced to continue the hearing. The judge also ordered the attorney to show cause why he should not be held in contempt. After a hearing, the judge held the attorney in contempt and fined him $2000. The attorney filed a motion for reconsideration. The judge denied it. The attorney appealed.
On appeal, the issue was whether the judge erred because it held the attorney in contempt pursuant to Rule 42(b), instead of Rule 42(a). Rule 42(b) allows a judge summarily to hold an individual in contempt if the contempt occurs in the judge's presence. If the contempt occurs outside of the judge's presence, Rule 42(a) provides for notice and an opportunity to be heard.
The decision is odd. The Court applies plain error review because the attorney never invoked Rule 42(a) below. It refuses to find plain error because it was not plain that the attorney's actions happened outside the judge's presence. Alternatively, the Court held that, even if plain error, relief would be unwarranted under the fourth prong of plain error review because the attorney essentially received all of the protections afforded under Rule 42(a).
This latter holding seems correct. In fact, we fail to understand how the district court proceeded under Rule 42(b) and not Rule 42(a). This was not a summary disposition; the attorney received a show cause notice and a hearing was held to determine the contempt issue (not to mention that the judge also entertained a motion for reconsideration following the contempt sanction). What more would Rule 42(a) require? In other words, the attorney's argument on appeal was frivolous.
The case highlights an odd aspect of Tenth Circuit jurisprudence: the alternative holding. It seems rare to read a Tenth Circuit opinion that does not include at least one alternative holding. But alternative holdings are not good. They make it almost impossible to separate holding from dicta.
The obvious practice tip from this case is not to do what this attorney did. In fact, do nothing even remotely close to it. And, if you are haled into court on contempt charges, invoke Rule 42(a).

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