Employment Lawyers Worst Nightmare-Criminal Contempt

In Re: Ruth Pollack, ___F.Supp. 2d___(E.D.N.Y. Sept. 19, 2008), is a case brought against an experienced employment litigator for criminal contempt by a sittting federal judge after he dismissed the employment discrimination case as a sanction for failing to comply with several court orders. The attorney was also found in criminal contempt. The court described the applicable standard as follows:

To hold an attorney in criminal contempt under the first category, the government must
prove beyond a reasonable doubt the following four elements:
(1) the court entered a reasonably specific order;
(2) defendant knew of that order;
(3) defendant violated that order; and
(4) the violation was wilful.
United States v. Cutler, 58 F.3d 825, 834 (2d Cir. 1995). With respect to the first two elements, the Second Circuit has repeatedly held that “[a] defendant cannot be held in contempt absent a ‘definite and specific’ order of which he had notice. J.ci. (quoting United States v. Charmer Indus.. Inc., 722 F.2d 1073, 1079 (2d Cir. 1983)). The clarity of the order “must be evaluated by a reasonableness standard, considering both the context in which it was entered and the audience to which it was addressed.” . at 835 (citing United States v. Turner, 812 F.2d 1552, 1565 (11th Cir. 1987)). Courts can expect attorneys to comply with less specific orders than laymen, and an attorney obviously has notice of order when he or she is present when the court issues the order.

A September 29, 2008, New York Law Journal article which summarizes this case is available here.

Mitchell H. Rubinstein