Friday, November 16, 2012

Possibly Unethical But Not Contemptuous

From the web page of the Tennessee Supreme Court:

In a unanimous opinion, the Tennessee Supreme Court ruled today that a judge may not properly charge an attorney with contempt of court when the behavior neither disrupts the proceeding nor disparages the court, even if the judge believes that the attorney behaved unethically.

In 2009, Mr. James Beeler represented Mrs. Christina Thomas in a criminal trial at which her husband, Mr. James Thomas, was represented by another attorney.  While the other attorney was questioning a witness, Mr. Beeler leaned over and spoke softly with Mr. Thomas.  The trial judge immediately interrupted the trial and asked the other attorney whether he had given Mr. Beeler permission to speak with his client.  Because the other attorney said that he had not, the judge charged Mr. Beeler with criminal contempt of court.  At a hearing, both attorneys testified that they had cooperated in defending their clients and that Mr. Thomas had spoken openly with Mr. Beeler on the morning of the trial without objection from his attorney.  Despite this testimony, the judge convicted Mr. Beeler of criminal contempt and recited the ethical rule that forbids an attorney from speaking with a person represented by another attorney about the subject matter of that representation without permission.

The Supreme Court held that a judge may not charge an attorney for contempt of court based upon "willful misbehavior" when the behavior neither disrupts the proceeding nor disparages the court, even if the judge believes that the attorney behaved unethically.  In this case, the Court found that Mr. Beeler had the implicit consent of the other attorney to speak with Mr. Thomas.  His ethical conduct was not "misbehavior" for which he could be charged with criminal contempt.  Accordingly, the Court reversed the Court of Criminal Appeals and vacated Mr. Beeler's conviction.

The opinion is linked here. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/11/from-the-web-page-of-the-tennessee-supreme-court-in-a-unanimous-opinion-the-tennessee-supreme-court-ruled-today-that-a-jud.html

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