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The mere unexplained absence of an attorney is a hybrid contempt. In fashioning the appropriate judicial response, the New Jersey Supreme Court adheres to its declaration that the summary contempt power should be exercised sparingly. The characterization of the contempt as direct or indirect should be deferred until after the attorney has an opportunity to explain his absence. If there is an adequate explanation, the matter should proceed no further. However, if the attorney refuses to explain, the judge may treat the offense as a direct contempt. Both the absence and the refusal are in the presence of the judge, who may determine the matter summarily. Similarly if the attorney offers an insulting, frivolous, or clearly inadequate explanation, both elements of the offense are in the presence of the judge, who may treat the matter as a direct contempt. Of equal importance, the refusal to explain or an offensive explanation creates the need in the court to deal immediately with the matter. The need for immediate adjudication and punishment outweighs the procedural safeguards that would ensue from referring the matter to another judge. In both instances, the attorney has a right to a hearing, albeit before the offended judge. The hearing is limited to proof of facts, legal argument, and the right of allocution.
John Yengco represented a defendant in a multiple defendant gambling conspiracy trial. The trial court instructed all attorneys that they needed to be punctual and could not be absent without prior approval because of the anticipated length of the trial. Without prior approval, Yengco failed to appear at trial. In his place, Yengco sent an attorney who shared office space with him. Yengco informed the trial court that he had been in Bermuda on business for a client. The trial court found Yengco guilty of direct contempt. The appellate division court reversed Yengco’s conviction concluding that the offense was an indirect contempt requiring notice and a hearing.
Did the unexcused absence of an attorney from a trial constitute contempt in the presence of the court justifying summary disposition under R. 1:10-1?
The instant court held that an attorney's failure to appear for trial could be either direct or indirect contempt. Since Yengco offered a clearly frivolous explanation for his failure to appear for the trial, both elements of the offense of contempt were in the trial court's presence, who properly treated the matter as a direct contempt. Further, Yengco’s unexcused absence was particularly egregious when viewed against the complexity of the case.