On certification to the Superior Court, Appellate Division, whose opinion is reported at 167 N.J. Super. 66 (1979).
For reversal -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For affirmance -- None. The opinion of the Court was delivered by Pollock, J. Handler, J., concurring. Pashman, Schreiber and Handler, JJ., concurring in the result.
The primary issue on this appeal is whether the unexcused absence of an attorney from a trial constitutes contempt in the presence of the court justifying summary disposition under R. 1:10-1.
The trial judge concluded that the absence of the attorney constituted direct contempt in the presence of the court and
disobedience of a court order prohibiting involvement in other proceedings. She found him guilty of contempt and imposed a $500 fine. The Appellate Division reversed and remanded, concluding that the offense was an indirect contempt requiring notice and hearing in accordance with R. 1:10-2 to 4. 167 N.J. Super. 66 (1979). We granted certification. 81 N.J. 333 (1979). We now reverse the judgment of the Appellate Division and reinstate the judgment of conviction entered by the trial court.
Respondent, John W. Yengo, represented Leo Leone, one of ten defendants in a multiple defendant gambling conspiracy trial. The nature of the case, the number of defendants and their counsel, together with the complexity of the evidence, presented difficult trial problems. The intricate proofs, which included wiretaps or monitored telephone conversations by court-authorized electronic surveillance, made attorney attendance throughout the trial a matter of highest priority. Both court and counsel recognized the special problems inherent in the management of the case. For example, 18, rather than 12, jurors were impaneled. The trial was estimated to last for five weeks. Those difficulties were compounded by an influenza epidemic and a major snowstorm. Because of bad weather, the scheduled trial date was postponed three times.
Anticipating scheduling difficulties among the numerous defense attorneys, the judge stressed the need for regular attendance. She instructed counsel that she would not tolerate tardiness or absence without her prior approval. On February 8, 1978, she pointedly advised counsel:
Now you are considered on trial before me . . .. [Y]ou are to advise all other courts and all other judges that you are on trial before me. If you have any problem with any judge, you let me know . . .. So, don't get involved in any other case or trial . . ..
On February 14, the judge again emphasized the importance of punctuality:
Now, I just want to advise you that it is my intention to move this case along as rapidly as I can. The case itself has enough problems involved with the law
involved in it without us having practical problems on a day-to-day basis with regard to time and otherwise . . ..
However, I am putting you all on notice that I intend, once we get going with this case, to abide by the time restrictions on this case. All of you have got to be here at 9 o'clock because I am going to be out on the bench at 9 o'clock. I intend to impose sanctions on any attorney who is not here on time. The Assignment Judge of Essex County comes from Jersey City and Hudson County and if he can get here by 8:15 in the morning, you people can get here on time.
So, all of you get yourselves here on time as we move throughout the case, and I am just giving you notice, that there will be sanctions including considerations of the cost of the inconvenience of jurors, the costs of the court staff being here, the inconvenience to all the other attorneys involved in the case, problems relating to delay of witnesses and such.
As for your clients, most of them are here. I want to advise all of you that you are all to make appropriate arrangements to get yourselves here on time. I intend to proceed with the case and move along with the case in accordance with the time restrictions and if you are not here, I will consider you to have voluntarily absented yourself.
So, what I am asking from you is your cooperation in telling you I am going to give you every consideration I can under the circumstances, but because of the nature of the case, the number of attorneys, the number of defendants, we have to be strict with regard to the time requirements. I intend to impose those and if they are violated, I will impose sanctions.
Yengo was not only aware of the instructions, but on February 22 he requested Judge Loftus to call another judge before whom he had a matter pending.
Testimony began on February 21, and Yengo appeared regularly until March 2. On that date, without previously informing the judge, he failed to appear at trial. Although Yengo failed to notify the court of his planned absence, he had discussed the matter with the prosecutor, several of the other defense attorneys and his client. In his place, Lawrence Burns, an attorney admitted to practice in 1975, appeared on behalf of Leone. Burns shared office space with Yengo, received cases from him, and described himself as Yengo's associate. Burns arrived late for the trial.
Leone advised the court that he consented to representation by Burns in Yengo's absence. Earlier Leone had consented to representation by Kenneth R. Claudat, another defense attorney, to "protect his interest" until Burns arrived.
The trial judge acknowledged Burns' authorization to represent Leone, and heard testimony of the State's wiretap monitor
witness until lunchtime. Following the initial hour of testimony, Judge Loftus became concerned about the extent of Burns' knowledge of the case. During the lunchtime recess, the judge questioned Burns in her chambers about Yengo's absence. Burns stated he did not know why Yengo had failed to obtain court approval for his absence, why he was absent, or where he had gone.
In response to questions from the court, Burns informed the judge that Yengo had called Burns at 9 o'clock the preceding evening to advise that he was going out of the country. Burns stated further that he had reviewed the file with Yengo for 15 minutes at 11:00 p.m. on that evening and that previously he had spent two days reviewing the file and discussing it with Yengo.
The trial proceeded with Burns acting as counsel for Leone. Judge Loftus tried several times to locate Yengo through calls placed by her secretary to his answering service. Judge Loftus also called Yengo's home and spoke with his daughter, who told the judge that Yengo had gone to Bermuda on a four day vacation and would return on Sunday, March 5. However, the daughter was unable to inform the court where Yengo was staying in Bermuda.
The trial court concluded that she had no alternative but to let the trial continue. The other attorneys stated that the testimony that would be adduced during Yengo's absence would not relate to Leone. Although the court expressed concern that an expert witness for the State might testify before Yengo returned, the trial continued uninterrupted through Friday, March 3.
The judge did not issue a citation for contempt on March 2 or March 3, the days on which Yengo was absent. Instead, she sent a telegram to his home ordering and directing him to appear before her at 9:00 a.m. on Monday, March 6, 1978, the next trial date.
On that date, Yengo appeared in court. The trial judge cleared the courtroom, except for court personnel and Yengo.
He explained that he had been in Bermuda on business for a supermarket. He stated that he did not communicate with the court because he did not know if he would be going to Bermuda until late Wednesday, March 1. He also explained that, as a matter of trial strategy, he had decided not to cross-examine the monitor witness from the State.
In the course of the colloquy with the court, the trial judge stated:
I called you here this morning and gave you the opportunity to speak because I thought that maybe the information that had come to my attention by the various phone calls I had to make, that you had gone to Bermuda for the weekend, was wrong. I thought maybe there was even some kind of explanation for it . . . but that is not so. There is absolutely no emergent necessity for you to leave this Country and go to Bermuda. Your actions just bespeak nothing but irresponsible professional conduct toward your client and towards this court.
She then cited him for contempt in the presence of the court and stated he would be "dealt with further at another time with regard to the ...