APPEAL FROM JUDGMENT OF SENTENCE FOR CRIMINAL CONTEMPT OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA AS OF civil action n/o. 71-2698.
Rosenn, Forman, and Garth, Circuit Judges.
These criminal contempt cases against an attorney require us to consider the sensitive distinctions between zealous representation of a client's interests and contumacious interference with the orderly progress of trial court proceedings.*fn1 With full appreciation of the contentious role of trial counsel,*fn2 yet with due regard for the essential power of the trial court to function effectively,*fn3 we conclude that the courtroom conduct of the attorney in these cases far exceeded the limits of proper advocacy, and we affirm the orders of criminal contempt entered against him.
Abraham E. Freedman appeals from two orders of criminal contempt entered against him in the course of a continuing trial in the United States District Court for the Eastern District of Pennsylvania.*fn4 Both were summary citations imposed under Rule 42(a) of the Federal Rules of Criminal Procedure,*fn5 and the incidents giving rise to both orders were sufficiently similar for us to have the cases consolidated for expedited appeal. Because the issues raised in the two cases are not completely identical, however, we shall deal with each order separately.*fn6
The incident underlying the first contempt order (No. 76-2266) occurred on September 28, 1976, the fifty-first day of a non-jury trial on a civil rights class action brought by the Commonwealth of Pennsylvania and certain named individuals against, inter alia, the local union represented by appellant Freedman. The complaint alleges that the defendants discriminate against minority group members "in the recruitment, apprenticeship, membership, training, upgrading, referral, and representation of men who work within the operating engineers ['] craft. . . ."
Plaintiffs offered as a witness one Bennett O. Stalvey, Jr., who, as Area Coordinator and Regional Director of the Philadelphia Regional Office of the Office of Federal Contract Compliance, had executed an affidavit that was appended to the plaintiffs' complaint. Stalvey had stated in his affidavit that "serious questions concerning the availability of membership in, and the referral practices of, Local 542 led to the withholding of over 30 million dollars ($30,000,000) in Federal funds from State highway construction from the spring of 1968 until the summer of that year . . .." In cross-examining Stalvey, Attorney Freedman sought to introduce portions of a pretrial deposition in which Stalvey had stated, allegedly in contradiction of the affidavit, that he could not say that the funds had been withheld "because of Local 542's activity," but could say only that the union's activity had "led to" the withholding of funds. Freedman's method of cross-examining Stalvey about the alleged discrepancy consisted of the lawyer's reading an extensive portion of the affidavit verbatim to the witness.
After Mr. Freedman had quoted sixteen questions and sixteen answers from the deposition, opposing counsel objected that no inconsistency had been shown, and moved that "any reading exercises be stopped." The trial judge asked Freedman if he had anything specific to call to the witness's attention, and inquired how many more questions and answers Freedman intended to read from the deposition. "A couple more," Freedman responded. "Just to go over a couple more questions and answers," the judge said. "Then we will focus it. If we are talking about several questions being read, I am just going to ask you to show them to the witness, and we will identify them by pages."
Freedman proceeded to quote five more questions and answers. The judge then interrupted and addressed Freedman as follows:
I thought you were going to read a couple more questions. Apparently you are not. I will make my ruling on the basis of Mr. Goodman's [opposing counsel's] objection. I will sustain the objection of a random reading of notes of testimony on the deposition. If you ask the witness a question, and then if you follow up that question, with a specific reference in the transcript to which you claim there is a contradiction, I will permit it. But it is impossible to focus on a multi-phase series of questions in terms of cross-examination.
The following colloquy ensued:
MR. FREEDMAN: I object to Your Honor's characterization of my reading a deposition as random.
THE COURT: I made my ruling.
MR. FREEDMAN: I am making my objection to Your Honor's ruling, and I am going to state the reason for my objection. I don't think that Your Honor can stop me from doing that.
THE COURT: I am directing you not to state the basis of your objection. Whatever you have, as a matter of law, as a basis of your objection, you will be the beneficiary of. Now, we will just deter what I think is [an] irrational cross-examination process. So I have made my ruling.
MR. FREEDMAN: I am afraid I have to give the basis for my objection.
THE COURT: All right. You may disregard my direction. If you give the basis when I told you not to, I am going to send for the marshal and hold you in contempt.
MR. FREEDMAN: You can send for the marshal right now, because I am going to give the basis for my objection.
THE COURT: I am directing you, as an officer of this Court not to state the basis of your objection. Whatever basis you have, you will have the benefit of claiming it. And if you disregard that, I am going to hold you in contempt.
MR. FREEDMAN: What I have to say, I want to say, not only for Your Honor, but for the Appellate Court if there happens to be a review. I am going to state it.
THE COURT: Just wait a minute. We will take a five-minute recess. I will send for the marshal.
Following a brief recess, the judge warned Freedman twice more not to state the reason for the objection, and admonished him that he would consider a violation of his order to be criminal contempt. Freedman replied that he considered it his "responsibility under the law" to state the basis of his objection. After two more direct orders not to state the reason for his objection, and two more warnings that a violation of those orders would be considered criminal contempt, Freedman nevertheless proceeded to state the basis of his objection. He had been ordered a total of seven times not to do so; he had been specifically warned four times that if he disregarded the judge's ruling he would be held in criminal contempt.*fn7 The trial judge thereupon held Freedman in contempt, and sentenced him to thirty days in prison.*fn8
On appeal from this contempt order, Freedman urges that his conduct was necessary to protect the record. He contends that he acted in the good faith belief that his action was proper and therefore lacked any criminal intent, and that his conduct did not constitute an actual obstruction of justice.
Our analysis of the issues must commence with a recognition of the historic role of the bench and bar in our jurisprudential system. The American legal system contemplates both an independent, respected judiciary and an independent, vigorous bar. The system takes account of the basic need for the orderly administration of justice. Without order in a courtroom, justice may be empty and evanescent. A balance must be maintained, however, between the necessity for judicial power to curb obstruction of justice in the courtroom and the need for lawyers to present their clients' cases fairly, fearlessly, and strenuously. In preserving the balance, a court must not exercise its summary power of contempt to stifle courageous and zealous advocacy and thereby impair the independence of the bar. On the other hand, the dignity, the independence, and the control of the court must not be degraded by lawyers who "equate contempt with courage . . .. The processes of orderly trial, which [are] the supreme object of the lawyer's calling," must be protected. Sacher v. United States, 343 U.S. 1, 14, 96 L. Ed. 717, 72 S. Ct. 451 (1952).
The appellant argues that the district judge erred in restricting the method of cross-examining witness Stalvey. In order to ensure the availability of appellate review of the judge's ruling, Freedman insists, he had to state the reasons for his exception to that ruling; otherwise the court of appeals might decline to consider a challenge to the assertedly erroneous limitation of cross-examination. In essence, Freedman submits that an attorney is free to violate a direct order of a trial judge if the lawyer believes that the protection of his client's interests on appeal requires such action. The appellant relies most heavily on two cases to support his position: In re McConnell, 370 U.S. 230, 8 L. Ed. 2d 434, 82 S. Ct. 1288 (1962), and Morrissey v. National Maritime Union, 544 F.2d 19 (2d Cir. 1976).
In re McConnell, supra, concerned a lawyer who was summarily found guilty of criminal contempt for in-court statements made while representing the plaintiff in an antitrust suit. Plaintiff's counsel, forbidden by the trial judge from proving their conspiracy charge against the defendants, asked counsel for the defendants to stipulate that the plaintiff would have introduced certain evidence of conspiracy had it been allowed to do so. Defense counsel refused to stipulate, however, and instead insisted that plaintiff's counsel prepare their record by following the procedure set out in Rule 43(c) of the Federal Rules of Civil Procedure, which requires that before an offer of proof is made questions upon which the offer is based must first be asked in the presence of the jury. The Supreme Court gave this description of what ensued:
Unwilling to risk dismissal of their appeal for failure to follow Rule 43(c), [McConnell] proceeded to produce and question witnesses in the presence of the jury in order to lay the proper foundation for their offers of proof of conspiracy. But during the process of this questioning the judge ordered it stopped and directed that any further offers of proof be made without first having asked questions of witnesses in the presence of the jury. This ruling placed [McConnell] in quite a dilemma because defense counsel was still insisting that all offers of proof be made in strict compliance with Rule 43(c) and there was no way of knowing with certainty whether the Court of Appeals would treat the trial court's order to dispense with questions before the jury as an excuse for failure to comply with the Rule. Petitioner therefore not only sought to make clear to the court that he thought defense counsel's objection was "right" but also repeatedly insisted that he be allowed to make his offers of proof in compliance with the Rule.
370 U.S. at 232 (footnotes omitted). McConnell advised the trial judge that "we have a right to ask the questions, and we propose to do so unless some bailiff stops us." Id. at 235. Following a short recess requested by his co-counsel, McConnell refrained from asking questions that the judge had forbidden; in fact, he did not ask any more such questions during the course of the trial.
The trial judge summarily found McConnell guilty of criminal contempt for insisting that he be allowed to make offers of proof in compliance with Rule 43(c), and for threatening to violate the judge's order that he refrain from making his offer of proof by questioning witnesses in the presence of the jury. The court of appeals affirmed. The Supreme Court, in an opinion by Mr. Justice Black, reversed, holding that "a mere statement by a lawyer of his intention to press his legal contention until the court has a bailiff stop him [cannot] amount to an obstruction of justice that can be punished under the limited powers of summary contempt . . .." Id. at 236. "The bailiff never had to interrupt the trial by arresting petitioner," Justice Black emphasized,
for the simple reason that after this statement petitioner never did ask any more questions along the line which the judge had forbidden. . . . The arguments of a lawyer in presenting his client's case strenuously and persistently cannot amount to a contempt of court so long as the lawyer does not in some way create an obstruction which blocks the judge in the performance of his judicial duty. The petitioner created no such obstacle here.
Freedman suggests that McConnell permits a lawyer to disregard an adverse ruling by the trial judge if the lawyer believes that such action is necessary to protect the record for appeal purposes. We cannot agree. McConnell stands only for the narrow proposition that an attorney's unfulfilled threat to violate a trial judge's order does not constitute an obstruction of justice summarily punishable as criminal contempt. United States v. Seale, 461 F.2d 345, 363 (7th Cir. 1972). The instant case differs significantly from McConnell : Whereas Mr. McConnell complied with the trial judge's instruction, Mr. Freedman, in defiance of seven direct orders, proceeded to do precisely what the trial judge had commanded him not to do. McConnell, we conclude, does not govern this appeal.
Freedman also relies on Morrissey v. National Maritime Union, supra id. at 32. In that case, five days before the scheduled start of the trial counsel for one of the defendants learned that his client might require emergency surgery on the opening day of the trial. Counsel immediately advised the judge by telephone, requested an adjournment of the trial, and offered to obtain an affidavit from the treating physician. The judge replied that it was unnecessary to obtain such an affidavit or to advise plaintiff's counsel, because the adjournment would be denied.At the opening of the trial, the defendant's counsel moved for an adjournment or, in the alternative, for a severance, stating that his client was to undergo a serious operation.The judge denied both requests. The trial proceeded, and a substantial verdict was rendered in favor of the plaintiff.
The court of appeals declined to reverse on account of the denial of a continuance, principally because counsel at no time made an offer of proof concerning the material testimony that the hospitalized defendant would have given. While counsel sought to excuse this on the basis of the judge's statement on the telephone that there was no need to supply a medical certificate or to advise plaintiff's counsel since he was going to deny the continuance in any event, the court of appeals held that "this did not relieve counsel of his duty to protect the record." Id. at 32.
The appellant asserts that Morrissey establishes the necessity of his action in this case. Had he obeyed the trial judge's order, Freedman maintains, he, like the defendant's lawyer in Morrissey, might later have found the court of appeals unwilling to consider his challenge to the trial judge's ruling. We are not persuaded that Morrissey justifies Freedman's conduct.
Morrissey and the instant case are dissimilar in one critical respect. The trial judge in Morrissey never ordered the defendant's lawyer to refrain from making an offer of proof that would have preserved the record. In fact, the judge never even advised the lawyer that it was unnecessary to make such an offer. The judge said only that it was unnecessary to obtain a physician's affidavit or to contact plaintiff's counsel. Defense counsel's failure to protect the record was entirely his own fault, resulting solely from his careless interpretation of the judge's statement. Morrissey does not address the question presented in this appeal, that is, whether an attorney's belief that certain action is necessary to protect the record justifies his violation of the judge's multiple direct orders.*fn9
We decline the appellant's invitation to consider the merits of the order that he violated. It is well settled that the invalidity of a court order generally is not a defense in a criminal contempt proceeding alleging disobedience of the order. Walker v. City of Birmingham, 388 U.S. 307, 18 L. Ed. 2d 1210, 87 S. Ct. 1824 (1967); United States v. United Mine Workers, 330 U.S. 258, 293-94, 91 L. Ed. 884, 67 S. Ct. 677 (1947). See generally Latrobe Steel Co. v. United Steelworkers, 545 F.2d 1336, slip op. at 8 (3d Cir. 1976). The issue as we see it is not whether the judge was correct in ordering Mr. Freedman not to state the reasons for his objection,*fn10 but whether Mr. Freedman had the right to state the reasons for his objection in violation of an explicit order that he not do so under pain of criminal contempt.
Freedman argues that the danger of foreclosing appellate review of the trial judge's restriction of his method of cross-examination required him to violate the judge's order. Yet he has not cited a single case in which an appellate court has held that an attorney's compliance with a direct order of a trial court barred his client's raising an issue on appeal. Nor has our own extensive research disclosed such a case. The void, we are sure, is not inadvertent. A court of appeals could not penalize a litigant solely because his attorney fulfilled his well established obligation to comply with the orders of a trial judge. Cf. Maness v. Meyers, 419 U.S. 449, 474, 42 L. Ed. 2d 574, 95 S. Ct. 584 (1975) (White, J., concurring). To conclude otherwise would require us to ascribe an irrationality to the appellate process which our knowledge of the law and our objective respect for the judicial system will not permit.*fn11
We do not dispute an attorney's right in trying a case to be contentious, fearless, and zealous in representing his client's interests. See Offutt v. United States, 348 U.S. 11, 13, 99 L. Ed. 11, 75 S. Ct. 11 (1954); Sacher v. United States, 343 U.S. 1, 13-14, 96 L. Ed. 717, 72 S. Ct. 451 (1952). As the Supreme Court has said, " It is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court's considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts." United States v. Sacher, supra, at 9, quoted in Maness v. Meyers, 419 U.S. 449, 459 n.7, 42 L. Ed. 2d 574, 95 S. Ct. 584 (1975). But the case law establishes that a direct order of the trial judge fixes the limits of proper advocacy; the vigor permissible in representing a client's interests has never included the flouting of a judge's rulings. Dunn v. United States, 388 F.2d 511, 513 (10th Cir. 1968); In re Osborne, 344 F.2d 611, 615 (9th Cir. 1965). Disobedience is not an ingredient of contentiousness; defiance is not an element of zealousness.
The Supreme Court has recently reaffirmed counsel's obligation to comply with the orders of a trial judge. In Maness v. Meyers, supra, the Court held that an attorney is not subject to the penalty of contempt for advising his client, in good faith, to assert the fifth amendment privilege against self-incrimination in any proceeding embracing the power to compel testimony. The narrow holding in Maness was based on the peculiar nature of the fifth amendment privilege. Mr. Chief Justice Burger, writing for the Court, was careful to emphasize, however, the "basic proposition that all orders and judgments of courts must be complied with promptly." 419 U.S. at 458.*fn12 "This principle," he wrote, "is especially applicable to orders issued during trial. E.g., Illinois v. Allen, 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057 (1970)." Id. at 459.
Such orders must be complied with promptly and completely, for the alternative would be to frustrate and disrupt the progress of the trial with issues collateral to the central questions in litigation. This does not mean, of course, that every ruling by a presiding judge must be accepted in silence. Counsel may object to a ruling. An objection alerts opposing counsel and the court to an issue so that the former may respond and the latter may be fully advised before ruling . . . . But, once the court has ruled, counsel and others involved in the action must abide by the ruling and comply with the court's orders. While claims of error may be preserved in whatever way the applicable rules provide, counsel should neither engage the court in extended discussion once a ruling is made, nor advise a client not to comply.
Id. (citation and footnote omitted). Accord, Sacher v. United States, supra, at 9; United States v. Abascal, 509 F.2d 752, 754 (9th Cir.), cert. denied, 422 U.S. 1027, 45 L. Ed. 2d 684, 95 S. Ct. 2621 (1975) ("The ability of a trial judge to compel obedience to his orders is fundamental to the proper functioning of our system of justice."); In re Dellinger, 502 F.2d 813, 816 (7th Cir. 1974), cert. denied, 420 U.S. 990, 43 L. Ed. 2d 671, 95 S. Ct. 1425 (1975) ("Lawyers are required to obey even incorrect orders; the remedy is on appeal.")*fn13
The Seventh Circuit has held that one's belief that certain action is necessary to preserve claims for appellate review does not excuse violation of a direct order of the trial judge.*fn14 In United States v. Seale, 461 F.2d 345 (7th Cir. 1972), Bobby Seale, in defiance of the trial court's directives, disrupted his own trial by insisting on his right to be represented by the counsel of his choice, or to represent himself. The trial judge held him in criminal contempt. On appeal, Seale contended that he was unaware that his sixth amendment claims were preserved for appellate review, and that his conduct was explicable by his desire to make a record. The Seventh Circuit held that Seale's reliance on In re McConnell, 370 U.S. 230, 8 L. Ed. 2d 434, 82 S. Ct. 1288 (1962), was misplaced, and rejected his contention.*fn15 "Open defiance of the trial court's directives to desist or disruptive persistence beyond all bounds of propriety would not be justified merely because Seale may have entertained the belief that some protest was called for," the court said. "Where there is such defiance or obstructive excess of persistence, belief in the necessity to register objections for the record may reduce the degree of culpability but does not exonerate." 461 F.2d at 363 (footnote omitted).
If non-lawyer Seale's defiance of a judge's order was inexcusable, how much more so should be the conduct of appellant Freedman, a seasoned trial lawyer. We agree with the Seventh Circuit, and hold that a trial attorney's belief that certain action is necessary to protect the record for appellate review does not excuse his deliberate defiance of the trial judge's explicit and repeated orders.*fn16 The phrase "preserving the record for appeal" is not a talisman that absolves a lawyer from his usual obligation to comply with a trial judge's direct orders.
At oral argument in this court, counsel for Freedman offered another justification for the appellant's action. Freedman's disregard of the judge's order was necessary, he said, not only to protect the record, but also to persuade the trial judge to retract his restriction on Freedman's method of cross-examination. An appeal would provide an inadequate means of challenging the restriction, counsel asserted; the witness was cornered, and Freedman had achieved a momentum that probably could never be resumed at a new trial after an appeal. In the interest of seizing an irrecoverable opportunity, the argument concluded, Freedman could permissibly defy the judge's order and state the reasons for his objection.
Counsel relied on Maness v. Meyers, 419 U.S. 449, 42 L. Ed. 2d 574, 95 S. Ct. 584 (1975), for this novel proposition. As we have already noted, Maness held that an advocate may not be held in contempt for advising his client, in good faith, to assert the fifth amendment privilege against self-incrimination in any proceeding embracing the power to compel testimony. In the course of its opinion, the Supreme Court observed that when a witness is ordered to reveal information during the course of a trial, compliance could cause irreparable injury because "appellate courts cannot always 'unring the bell' once the information has been released. Subsequent appellate vindication does not necessarily have its ordinary consequence of totally repairing the error." Id. at 460. A witness in such a situation, said the Court, has the choice of complying with the order or resisting the order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.
Maness was based on the unique nature of the fifth amendment privilege. We find in that case no general rule that a trial court's order may be violated when the person at whom the order is directed determines that the appellate process is inconvenient. On the contrary, the Supreme Court reaffirmed the general obligation to comply with the orders of a trial court. "Remedies for judicial error may be cumbersome," the Court said, "but the injury flowing from an error generally is not irreparable, and orderly processes are imperative to the operation of the adversary system of justice." Id. Compliance with the trial judge's rulings may cause counsel to lose an advantage that never may be regained. But that is a small premium to pay to protect our dynamic judicial system from courtroom chaos.
Mr. Freedman contends that his conduct did not amount to an obstruction of justice*fn17 because he was merely doing in good faith what he deemed essential, in his client's interest, to preserve a point for appeal. We agree with appellant, as we must, that "before the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures there must be an actual obstruction of justice. . . ." In re McConnell, 370 U.S. 230, 234, 8 L. Ed. 2d 434, 82 S. Ct. 1288 (1962). Accord, In re Little, 404 U.S. 553, 555, 30 L. Ed. 2d 708, 92 S. Ct. 659 (1972); Ex parte Hudgings, 249 U.S. 378, 383, 63 L. Ed. 656, 39 S. Ct. 337 (1919); United States v. Proffitt, 498 F.2d 1124, 1128 (3d Cir.), cert. denied, 419 U.S. 1002, 42 L. Ed. 2d 277, 95 S. Ct. 320 (1974). We also agree that "in close cases where the line between vigorous advocacy and actual obstruction defie[s] strict delineation, doubts should be resolved in favor of vigorous advocacy." United States ex rel. Robson v. Oliver, 470 F.2d 10, 13 (7th Cir. 1972). Accord, In re Dellinger, 461 F.2d 389, 398 (7th Cir. ...