5.4​Misconduct by Attorneys, Counselors, Clerks, Registers, Sheriffs, Coroners, and Persons Elected or Appointed to Perform Judicial or Ministerial Services

A.​Statutory Authority

“The supreme court, circuit court, and all other courts of record, have power to punish by fine or imprisonment, or both, persons guilty of any neglect or violation of duty or misconduct in all of the following cases:

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“(c) All attorneys, counselors, clerks, registers, sheriffs, coroners, and all other persons in any manner elected or appointed to perform any judicial or ministerial services, for any misbehavior in their office or trust, or for any willful neglect or violation of duty, for disobedience of any process of the court, or any lawful order of the court, or any lawful order of a judge of the court or of any officer authorized to perform the duties of the judge.” MCL 600.1701(c).

B.​Failure of Attorney to Appear in Court

Because an attorney is an officer of the court as well as an agent of his or her client, the attorney has a duty to take timely affirmative action to notify the court if the attorney will not continue the representation. White v Sadler, 350 Mich 511, 526 (1957); In re Lewis (Shaw v Pimpleton), 24 Mich App 265, 269 (1970). Failure to appear in court at the appointed time constitutes indirect contempt. In re Contempt of McRipley, 204 Mich App 298, 301 (1994).

The rationale for punishing an attorney for failing to appear in court is stated in People v Matish, 384 Mich 568, 572 (1971), quoting Arthur v Superior Court of Los Angeles Co, 398 P2d 777, 782 (Cal, 1965):

“‘When an attorney fails to appear in court with his [or her] client, particularly in a criminal matter, the wheels of justice must temporarily grind to a halt. The client cannot be penalized, nor can the court proceed in the absence of counsel. Having allocated time for this case, the court is seldom able to substitute other matters. Thus the entire administration of justice falters. Without judicious use of contempt power, courts will have little authority over indifferent attorneys who disrupt the judicial process through failure to appear.’”

C.​Caselaw

Willful intent is not required for a finding of civil contempt. McComb v Jacksonville Paper Co, 336 US 187, 191 (1949); Catsman v Flint, 18 Mich App 641, 646 (1969). If a judge feels that an attorney was merely negligent in not appearing in court, civil contempt proceedings may be instituted. If civil contempt is found, the judge must order the contemnor to pay damages for the injuries resulting from noncompliance with the court order. MCL 600.1721.⁴ See In re Jacques, 761 F2d 302, 305-306 (CA 6, 1985), and In re Contempt of McRipley, 204 Mich App 298, 301-302 (1994) (attorney who failed to appear was properly ordered to reimburse county for costs of assembling jury panel). The court may also order the contemnor to pay a fine and the costs and expenses of the proceedings. MCL 600.1715(2).

“[W]here an attorney makes a good faith effort to obtain a substitute lawyer for his [or her] client when the original attorney cannot appear, the failure to appear cannot be deemed willful.” In re Lumumba, 113 Mich App 804, 813-814 (1982). The Lumumba Court reversed the trial court’s finding of criminal contempt because the attorney made a good faith effort to secure a substitute attorney. Id. at 814.

In In re Hirsch, 116 Mich App 233, 237-238 (1982), the Court of Appeals affirmed a finding of criminal contempt against an attorney who was ordered to be in Recorder’s Court at 9:00 a.m. and in Macomb County Circuit Court at 11:00 a.m. The attorney did not obtain substitute counsel and did not appear in Recorder’s Court because he felt the orders were conflicting and he would not have time to drive from Recorder’s Court to Macomb County Circuit Court. Id. at 238-239. The Court of Appeals found that the attorney made a willful decision to violate the Recorder’s Court order and upheld the finding of criminal contempt. Id. at 241.