In re Roxborough

¶1dissenting:

¶2My colleagues conclude that appellant, by omitting the trial court’s order of contempt from the record on appeal, has failed to present us with “a record sufficient to show affirmatively that error occurred.” Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982) (citations omitted). I agree that appellant’s case might well be stronger if the contempt order were before us. What the record does contain, however, is a transcript of the show cause hearing. That transcript convinces me that appellant lacked the requisite state of mind to be convicted of contempt, and for that reason I would reverse the judgment. Since my colleagues conclude otherwise, I respectfully dissent.

¶3D.C.Code § 11-944 (1989) empowers judges of the Superior Court to “punish for disobedience of an order or for contempt committed in the presence of the court.” This court has repeatedly held that if an attorney fails to appear in court when he or she is obliged to do so, the attorney’s absence is conduct occurring “in the presence of the court” and may be punishable as contempt. See, e.g., In re Gregory, 387 A.2d 720, 722 (D.C.1978); In re Hunt, 367 A.2d 155, 156 (D.C.1976), cert. denied, 434 U.S. 817, 98 S.Ct. 54, 54 L.Ed.2d 72 (1977); In re Rosen, 315 A.2d 151, 152-153 (D.C.), cert. denied, 419 U.S. 964, 95 S.Ct. 224, 42 L.Ed.2d 178 (1974). Furthermore, Superior Court Criminal Rule 42(a) states that such a contempt may be punished “summarily,” that is, without notice and hearing. We have also held, however, that an attorney’s absence must be willful in order to constitute contempt, and we have reversed contempt convictions when the record fails to show the requisite willfulness. E.g., In re Siracusa, 458 A.2d 408 (D.C.1983); In re Thompson, 448 A.2d 247 (D.C.1982); In re Denney, 377 A.2d 1360 (D.C.1977); In re Nesbitt, 313 A.2d 576 (D.C.1973); accord, Sykes v. United States, 144 U.S.App.D.C. 53, 55, 444 F.2d 928, 930 (1971).

¶4“The offense of contempt consists of a contemptuous act and a wrongful state of mind ... [each of which] must be proved beyond a reasonable doubt.” In re Gorfkle, 444 A.2d 934, 939 (D.C.1982) (citations omitted). There can be no question that an attorney’s unexcused failure to appear in court on time for a scheduled hearing or trial is a contemptuous act. Id.(citing eases); In *556re Gregory, supra, 387 A.2d at 723. It is also “a breach of professional duty that is frequently disruptive of the judicial process.” In re Thompson, supra, 448 A.2d at 248 (citations omitted). But that is not enough to sustain a contempt conviction. The record must show, in addition, “that the failure to appear timely was the result of willful, deliberate, or reckless disregard of professional obligations.” In re Siracusa, supra, 458 A.2d at 410. That is what I believe is lacking here.

¶5The requisite state of mind for criminal contempt has been variously characterized as willfulness,1 contumacious intent,2 or (in the ease of an attorney) deliberate or reckless disregard of one’s professional obligations3 or flagrant disrespect for the court.4 This court has recognized that “‘[t]he requisite intent may of course be inferred if a lawyer’s conduct discloses a reckless disregard for his professional duty.’” In re Gorfkle, supra, 444 A.2d at 940 n. 4 (quoting Sykes, supra,144 U.S.App.D.C. at 55, 444 F.2d at 930). What the record in this case shows, however, is at worst extremely poor judgment combined with unexpected misfortune.

¶6Scheduling two hearings back to back in courthouses twenty miles apart is flirting with disaster, as this case plainly demonstrates. “An attorney has a clear obligation to avoid scheduling conflicts which disrupt the efficient administration of the judicial system.” In re Gratehouse, 415 A.2d 1388, 1390 (D.C.1980) (citation omitted). On the other hand, if appellant’s car had not broken down on the road from Upper Marlboro to downtown Washington, he may well have made it to court on time, or at least before his cases were actually called. Because the sudden breakdown of appellant’s car was beyond his control, I find the requisite state of mind lacking. On the record as a whole, I cannot conclude that appellant “deliberately or recklessly disregarded his obligation to the court, or that he intended any disrespect for the court.” Sykes, supra,144 U.S.App.D.C. at 55, 444 F.2d at 930.

¶7Appellant should not have arranged his schedule in such a way as to require his presence in two places, twenty miles apart, at almost the same time. What he did was careless; it was stupid; it was extremely foolish. He should never, never do it again. But I cannot discern in his behavior the willfulness necessary to sustain a conviction of criminal contempt. I would therefore reverse appellant’s conviction.