UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: April 14, 1978.
UNITED STATES OF AMERICA, APPELLEE,
HOWARD WENDY, APPELLANT
Appeal from an order of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, finding appellant in contempt of court for refusing on three successive days to proceed to trial before Judge Gerard L. Goettel, asserting that he was not the intended trial attorney and that he was unqualified to try the case. Judge Goettel imposed the contempt citations which were upheld on a reference to Judge Griesa.
Feinberg and Oakes, Circuit Judges, and Wyatt, District Judge.*fn*
OAKES, Circuit Judge :
This appeal is by an attorney from an order of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, finding him in contempt of court on December 13, 14 and 15, 1976, for refusing to proceed to trial as ordered in United States v. Harris, 76 Cr. 602. The order, assessing a fine of $500 for each day, or a total of $1,500, was made after Judge Gerard L. Goettel, who cited Wendy for contempt when he refused to proceed with a scheduled trial, had referred the matter to the Reassignment Committee which in turn reassigned the matter to Judge Griesa. We reverse.
Though a member of the Bar of the Southern District, appellant Howard Wendy is not a criminal trial lawyer. Rather, he is a tax lawyer and, at the time of the purported contempt, was a partner in the firm of Kassner & Detsky. In connection with the Harris case, a criminal tax evasion indictment, Wendy was present at Harris's July 8, 1976, arraignment. He subsequently filed a notice of appearance form which included his own signature and the name and address of the Kassner firm. On August 18, September 7, September 21, and October 12, 1976, Wendy appeared before Judge Goettel in connection with preliminary matters. At the September 21, 1976, conference, the Speedy Trial deadline of December 29, 1976, was duly noted. And on October 12 the district judge declared, with the agreement of both Government counsel and Mr. Wendy: "I will commence the trial on December 13th."
On December 13, in answer to the judge's question whether the defendant was ready to proceed, Wendy replied in the negative and explained:
I have never tried a case. My background is tax and accounting, and I am assisting Mr. Kassner. I have no experience as a trial attorney, I have never tried a tax case, and I don't feel competent to try this tax case.*fn1
The judge reminded him that he had appeared personally and recalled "the recent Second Circuit case [ In re Sutter, 543 F.2d 1030 (2d Cir. 1976)] in which the attorney was assessed fines of $500 a day for doing precisely what Kassner is attempting to do here, namely, on the last working day before trial announc[ing that] he was engaged in a state proceeding and would not be prepared to go ahead until some later date."*fn2 The judge then warned that "if this case is delayed, it is going to be at the rate of $500 a day fine against Mr. Kassner."
Mr. Wendy stated that he had intended to enter an appearance on behalf of the firm, not himself, and that if he signed the paper in his name it was inadvertent. He then explained that Kassner's absence was occasioned by slow proceedings in a state court action.*fn3 The Assistant United States Attorney said that he first learned of Kassner's state court involvement on the previous Thursday, December 9. The judge added that he had not heard of Kassner's conflict until Friday, December 10, and that he had "relayed the message back that a continuance would not be granted, and if counsel was actually unprepared to proceed, there would be fines levied under the authority of the Sutter case, and that is where we stand."*fn4 The judge then asked Wendy if he wished to proceed. When Wendy replied that he preferred "not to go ahead," the court for the first time indicated that the $500 fine would be assessed "against [Wendy] personally as attorney of record." Some discussion of the Speedy Trial Act followed. The court then asked again whether Wendy was prepared to try the case and, upon the latter's negative answer, declared:
All right, be back here tomorrow morning. We will go through the same procedure again, and I intend to find you in contempt and assess fines against you of $500 for each day you are unprepared to proceed.
On the following day, December 14, Wendy acknowledged that the defendant was not ready and applied for an adjournment. He attempted to distinguish Sutter on the basis that Sutter took on the state court case three weeks before he was scheduled to start trial in federal court while Kassner had accepted the state court case a year and a half before. Wendy also pointed out that "the firm should certainly be the one, and I was never intended to be the attorney of record . . . ." Discussion of a continuance transpired after which Wendy presented the judge with a copy of a petition to the court of appeals for a writ of mandamus. The judge read the papers and commented:
The papers imply that Mr. Kassner is being threatened with contempt because he is not in two courts at once.
It is not Mr. Kassner who is in contempt, Mr. Wendy, it is you who are in contempt? [ sic. ]
The court also inquired of Wendy why he was not qualified to try a case in view of his admission to the bar. Wendy replied that this was "not a civil case and not one that I feel I should cut my teeth on . . ."*fn5 The court then ascertained that Wendy was not prepared to proceed by giving him a choice between proceeding or "being held in contempt for being unable to proceed at this time . . . ." When Wendy again refused to try the case, the court held him "in contempt and . . . fin[ed] him an additional $500."*fn6 When Wendy requested the opportunity to come before the district court in the event his petition in the court of appeals was denied, the judge responded: "You then have the opportunity because you are coming back tomorrow morning, and every morning until the Court of Appeals takes some action."*fn7 Wendy reiterated that it was Kassner, not he, who had been retained in the case, and that Wendy's signing of the appearance was through mere inadvertence.
The pas de deux rehearsed on December 13 and 14 was played again for the third and last time on the following day, December 15. Wendy repeated that the defendant was not ready to begin the trial.*fn8 The court once more refused to accept Kassner's absence as Wendy's "excuse" and found appellant in contempt, fining him an additional $500. At this point the district judge said that he would not impose any more fines, see note 7 supra, because he could not commence the trial on December 16 even if Wendy and Kassner were ready.*fn9
Several days after the third performance of the contempt scenario terminated, Judge Goettel referred his finding of "contempt against an attorney" to the Reassignment Committee of the Southern District for assignment to another judge.*fn10 In setting forth the facts, the judge stated that he considered the action taken "to have [been] a civil contempt, although an argument can be made that it was criminal and required compliance with Rule 42(b)."*fn11
What we are dealing with, then, are in effect three citations of civil contempt against an attorney for his refusal to proceed to trial*fn12 in a felony case on the basis that the intended trial counsel was otherwise engaged, that he himself was insufficiently experienced to try the case, and that entry of his own name on the notice of appearance had been inadvertent. We are not dealing with a criminal contempt,*fn13 there being no alleged violation of 18 U.S.C. § 401;*fn14 nor do we have a governing local rule such as was involved in In re Sutter, supra ;*fn15 and the fines were not imposed under 28 U.S.C. § 1927. Ali v. A. & G.Co., 542 F.2d 595, 597 (2d Cir. 1976) (Oakes, J., dissenting); see Bardin v. Mondon, 298 F.2d 235, 238 (2d Cir. 1961).*fn16
Contempt by an attorney is always a serious matter. While a simple rebuke or more serious censure by the court might not have the same effect as in the more tightly-knit Bar of England,*fn17 the more serious exercise of the contempt power is awesome in its implications. A citation is likely to afflict the contemnor with a "stigma of antisocial conduct." Note, Procedures for Trying Contempts in the Federal Courts, 73 Harv.L.Rev. 353, 355 (1959). For a lawyer seeking admission to other bars or to practice before federal agencies, a citation might have considerable economic consequences. The appellation of "civil" rather than "criminal" contempt hardly alleviates the harm. Thus, it behooves the court, in the first instance or on appeal, to make certain that an order of the court is violated before a citation issues.
We fail to find such an order on December 13, 1976. True, the trial was scheduled for that day, but the court might well have granted the continuance sought by Kassner and Wendy. The judge on that day erroneously thought that he was proceeding on the authority of the Sutter case. Ante [slip op.] at 2539-2540. He also first spoke of a $500 a day "fine against Mr. Kassner," before he stated to Wendy that it would be assessed against him personally as attorney of record. But the December 13 transcript does not reveal an order to Wendy either to proceed to trial that day or to be held in contempt. Accordingly, the judgment as to December 13 must be reversed.
The following two days rest on a different footing. On December 13 the court told appellant to return the next morning at which time "we will go through the same procedure again. . . . And I intend to find you in contempt and assess fines against you of $500 for each day you are unprepared to proceed." Assuming that this statement was an implicit order to proceed, we conclude that a civil contempt citation for Wendy's election not to proceed was inappropriate.
A long recognized defense to a civil contempt citation is the cited individual's inability to comply with the court's order. See Shillitani v. United States, 384 U.S. 364, 371, 16 L. Ed. 2d 622, 86 S. Ct. 1531 (1966); 3 C. Wright, Federal Practice and Procedure § 704, at 160 & n.63 (1969). Technically speaking, Wendy may have had the ability to comply with the court's order in that, as a member of the bar, he was legally authorized to try cases.*fn18 But realistically, Wendy was incapable of compliance. It is uncontroverted that at the time of the contempt citations, Wendy's expertise was in the area of tax and accounting. He had never before tried a case, civil or criminal, state or federal. He was hardly qualified, therefore, to try a felony tax case carrying a potential five-year prison term. The client, whose liberty was at stake,*fn19 certainly did not want Wendy to try the case.*fn20 To be ordered either to try a case which he was obviously unqualified to do*fn21 or to be held in contempt was thus a Hobson's choice.*fn22 That is to say, Wendy did not, in the old phrase, "carry the keys of [his] prison." See In re Nevitt, 117 F. 448, 461 (8th Cir. 1902); 3 C. Wright, supra, § 704, at 160 & n.60. He could not be held in contempt because he did not have the present ability to comply with the court's order in any meaningful sense.*fn23
We do not underestimate the important duties of counsel to the court, especially since the Speedy Trial Act has made calendar control even more difficult than it was previously. We agree entirely with the district court that Wendy neglected his duty timely to inform the court that Kassner was to be trial counsel. We do not condone his conduct in this regard and, as we have said, do not reach the question whether he could have been fined if the Southern District had in effect a rule like the Eastern District's Rule 8(b) discussed in Sutter. We hold only that a contempt citation was improper under the circumstances here.