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When Can a Judge Hold a Lawyer in Contempt and Place Him/Her in Custody in Florida?

It does not happen often, and I have only seen one case of a Jacksonville criminal defense lawyer being held in contempt, but a judge does have a right to hold a lawyer in contempt and send him/her to jail for a period of time for certain conduct in Florida. Of course, this does not just apply to criminal defense attorneys; it can apply to any lawyer that has to appear before a judge in any case.

There are two types of contempt proceedings: direct contempt and indirect contempt. Direct contempt involves improper conduct by a lawyer that is done in the presence of the judge so that the judge sees or hears it. An obvious example would be if the judge orders the lawyer to do something in court and the lawyer refuses to do it in court. Disruptive behavior in court can also be the basis for direct contempt. The other kind of contempt is indirect contempt. That involves the violation of a court order outside of the presence of the judge. For instance, if the judge orders the attorney to file a pleading and the lawyer intentionally fails to do so, that could be indirect contempt. A lawyer can go to jail for a contempt violation.

In a recent case near Jacksonville, Florida, a criminal defense lawyer was found in direct contempt and ordered to go to jail for a period of time. However, the judge abused his power over the criminal defense attorney. Apparently, the criminal defense lawyer thought she was finished for the day and had a couple of drinks at lunch. As it turned out, she had a plea hearing later that day. She went to the plea hearing, and someone told the judge that the criminal defense attorney smelled of alcohol. The judge ordered her to submit to a breathalyzer, and she blew a 0.085, which is over the legal limit for a DUI in Florida. The judge ordered her to be placed in jail until she blew under a 0.08 on the breathalyzer. Ultimately, a direct contempt hearing was scheduled, and the judge found her in contempt for appearing in court while impaired from alcohol and sentenced her to six months on probation.

The criminal defense lawyer appealed the contempt ruling and won. First, the judge cannot find a lawyer in direct contempt for conduct that occurred outside his/her presence. In this case, the drinking occurred outside of the courtroom. If the criminal defense attorney showed up drunk and started doing inappropriate things in court as a result, that could be the basis of a direct contempt ruling. However, the only evidence that she had been drinking was the odor of alcohol. Also, the judge did not have the authority to force her to submit to a breathalyzer test. Under Florida law, a person has to be under arrest before the state, or perhaps a judge, can force her to take a breathalyzer test.

Finally, the judge did not have authority to put the criminal defense attorney in jail initially. Since direct contempt proceedings had not officially started, there was no legal basis to put her in jail at that time. Only after a legitimate direct contempt hearing with notice and an opportunity to present and question witnesses can a judge put a lawyer in jail for contempt.