kanBARoo Court. 41st Installment. Defying Court Orders

What do journalists and lawyers have in common? Members of both professions have had to suffer time in jail for disobeying court orders, journalists to protect their sources, lawyers for zealously pursuing the interests of their clients. If unjust laws deserve breaking, oppressive court orders sometimes deserve the contempt they get. Notwithstanding this democratic axiom, the California State Bar may discipline an attorney and even disbar him for disobeying a court order, and the State Bar has passionately pursued these prerogatives. (See, for example, In the Matter of Respondent X, A Member of the State Bar (1997) 3 Cal. State Bar Ct. Rptr. 592.)

While not the equal of the Dred Scott court, the U.S. Supreme Court made an infamous decision affirming a duty to obey court orders, no matter how invalid, in Walker v. City of Birmingham. In its effort to suppress the civil rights movement, the Alabama courts restrained the rights of protesters to assemble peacefully during the public-accommodations sit-in movement. While no justices would dispute that the Alabama injunction was invalid on First Amendment grounds, the Supreme Court held in a 5 to 4 decision that convictions for violating the order must stand. According to the majority Alabama had the right to prohibit collateral attack on all orders issued by the state courts. (See Walker v. City of Birmingham (1967) 388 U.S. 307.)

Three dissenting opinions, each signed by all at least three dissenting justices, eloquently criticized the majority opinion and memorialized disobedience's constructive role. As Justice Brennan stated:

The vitality of First Amendment protections has... been deemed to rest in large measure upon the ability of the individual to take his chances and express himself in the face of such restraints, armed with the ability to challenge those restraints if the State seeks to penalize that expression… [R]emember the stern lesson history taught courts, in the context of the labor injunction, that the ex parte injunction represents the most devastating of restraints on constitutionally protected activities. (Walker v. City of Birmingham, supra, 388 U.S. at pp. 345-346 [Dissent, J. Brennan].)

In California one has the right to test any court order by disobeying it and then proving its invalidity in the ensuing contempt trial. Hence, no wrong has been proven against a respondent until the violator is found guilty of contempt of court. But the State Bar Court construes the statutory terms to mandate discipline without a contempt proceeding in California's constitutional courts. Under Business and Professions Code section 6103:

A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear … constitute causes for disbarment or suspension.

The State Bar construes the statute to give the State Bar jurisdiction based on the Bar's view of whether the attorney "ought in good faith to do or forbear" as ordered. The State Bar's interpretation is wrong for two reasons: (1) similar provisions do not apply until the courts have tried the matter; and (2) disciplining untried acts of disobedience to court orders is against California public policy. For the first, Commission of a felony warrants disbarment but usually only after actual conviction. The State Bar does not presume to try the felony itself. For the second:

In this state a person affected by an injunctive order has available to him two alternative methods by which he may challenge the validity of such order on the ground that it was issued without or in excess of jurisdiction. He may consider it a more prudent course to comply with the order while seeking a judicial declaration as to its jurisdictional validity. [Citation.] On the other hand, he may conclude that the exigencies of the situation or the magnitude of the rights involved render immediate action worth the cost of peril. In the latter event, such a person . . . may disobey the order and raise his jurisdictional contentions when he is sought to be punished . . . . (In re Berry (1968) 68 Cal.2d 137, 148-149).

The State Bar respondent accused of violating a court order can prove the order was invalid, although even that much was denied by the dissent in Respondent X, supra. Proof in the State Bar Court is not beyond a reasonable doubt, as in a contempt trial. Unlike a serious contempt trial, no jury of one's peers finds guilt. Rather, guilt is always decided by a single sub-constitutional judge. The absence of contempt charges, moreover, usually means the Superior Court judge did not think the disobedience sufficiently odious.

Lawyers often have the best reasons for disobeying court orders. The State Bar wields a double standard, by which the State Bar enforces court orders against lawyers with stringency greater than as applies to other citizens, ironically depriving lawyers of the law's equal protection for professional judgments central to advocacy. State-Bar respondents should challenge Business and Professions Code section 6103's unconstitutional application, which allows discipline without an underlying contempt proceeding. Better, the Legislature should repeal the entire statute. The courts have terrible contempt powers, sufficing to enforce court orders, violation not proving unfitness to practice.