Lawyers cannot be Found Guilty of Contempt for Someone Else’s Conduct
By: April Campbell
As important as it is to keep up with laws affecting clients, it is just as necessary to keep up with law that affect us: Criminal Contempt. We’ve all heard of lawyers being threatened with contempt. There are always a myriad of reasons why. And ever since the pandemic began, potential contempt seems to abound everywhere. Just take a look at cities who have been threatened with contempt for enacting restrictions aimed at preventing the spread of Covid-19. https://www.wpr.org/circuit-court-judge-threatens-hold-city-racine-contempt-covid-19-restrictions-enacted.
Thus, the First District’s recent decision on the subject is worth noting. In re Feagan, 2020-Ohio-3788 (July 22, 2020). The underlying case is a massive lawsuit, but the appeal was really about the lawyer.
Apparently, Attorney Feagan had just taken over being the designated ‘Trial Attorney’ in the lawsuit. As such, he was under a gag order; not to talk about the litigation’s specifics while it was pending. Under that order, Feagan was also responsible for the other attorneys conduct too.
Feagan abided by it. The only problem was that the other attorneys in his firm did not: one attorney assembled a protest, speaking about the pending litigation in the news. Feagan was consequently convicted of criminal contempt, for another attorney’s violation of the gag order.
The First District held that when it comes to criminal contempt, vicarious liability is not a thing. If the legislature wants to make one party liable for the actions of another, the Court reasoned, it can do so. Yet because criminal contempt requires that the lawyer himself act in violation of a court order, Feagan could not be convicted of contempt. Where the attorney’s contempt conviction is based on vicarious liability, the First District reasoned, evidence of criminal contempt is legally insufficient.