A criminal case produced a contempt order that holds its own implications for family law practitioners, and that contempt order was upheld by the Court of Appeals, in Singleton v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___, 23 VLW 526 (10/7/08). Defense counsel non-appeared, having told his client that the client did not have to appear. That is because defense counsel had agreed with the prosecutor to a continuance. It was to be a jointly-requested continuance of the DWI trial date. Because, however, nobody mentioned this to the judge or the court staff until the scheduled trial date when the case was called, it was proper to cite the defense lawyer for contempt.
True to the earlier promise, the prosecutor did present to the judge an endorsed continuance order, but the judge did not have to sign it and did not. Though the lawyer admitted to the judge later on that he had no authority to support the position that he could tell the client not to show up, the defense lawyer did argue that he had acted in good faith, and in fact said “Your Honor, I tell probably hundreds of people every year that they don’t need to come to court.” He was told that that was wrong. To the argument on appeal that contemptuous intent is an element of this offense, the Court of Appeals, in an opinion by Judge Kelsey, says that this does not establish a “legitimate reason” for failure to attend a scheduled trial. This undermines the court’s authority, and justifies a contempt order. And the lawyer does not even get to argue that it was wrong to hold him in contempt without any kind of due process, because, although he attempts to make it now, he did not make that argument to the trial judge.