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COA upholds contempt finding against defense lawyer in CHIPS matter

David Patton v. Circuit Court for Kenosha County, 2023AP809-FT & 2023AP810-FT, District II, 9/13/23, 1-judge decision ineligible for publication; case activity (including briefs)

In an appeal displaying the extreme deference accorded to the circuit court’s contempt finding, COA defers to the circuit court’s decision to order a $100 contempt sanction against a lawyer in a CHIPS matter.

Attorney Patton represents “Maria” with respect to two CHIPS matters. (¶2). As a condition of return, Maria had been previously ordered to sign releases for her otherwise privileged medical information. (Id.). At a review hearing, Attorney Patton objected to one set of proposed releases, arguing that they were overbroad and that the requesting agency should submit a more “tailored” request that would not unduly compromise his client’s privacy. (¶3). The court sided with DCFS and found that their releases were not overly broad. (¶4). The following exchange occured between Attorney Patton and the court:

ATTORNEY PATTON: Your Honor … did you review the request?

THE COURT: I have made my decision.

ATTORNEY PATTON: So you didn’t review the request?

THE COURT: I have made my decision.

ATTORNEY PATTON: Okay. I understand that you’ve made your decision. I asked you a question. Are you willing to answer it?

THE COURT: And I’m not answering it. I said I have made a decision.


THE COURT: You don’t get to ask that question.


THE COURT: Is it in the record? If not, I haven’t reviewed it.


THE COURT: You get to be respectful to this Court. If it’s not in the record, obviously, I haven’t reviewed it.


THE COURT: Based upon what I’m hearing here today, I made my decision.

ATTORNEY PATTON: Okay. You made a decision that it wasn’t overly broad without reviewing the record. That is correct, Your Honor. Without reviewing—

THE COURT: You are now in contempt of court. I just told you you do not get to talk to me like that. You do not get to be disrespectful to this Court. Now you owe this Court $100.


THE COURT: Payable within five days. Watch how you talk to this Court or any other Court. That’s it for today.


After the court entered a written order faulting Attorney Patton for “arguing” with the court, his law firm requested a hearing at which time he could exercise his right to allocution. (¶7). However, the firm subsequently withdrew that request. (Id).

On appeal, COA focuses on the statutory requirements for contempt under § 785.01(1). (¶11). The standard here is a little squishy; the court exercises de novo review in analyzing whether the court followed the correct procedure but applies a deferential, erroneous exercise of discretion standard of review to the court’s actual finding of contemptuous conduct. (¶10). Reviewing the overall record, COA is satisfied there was no erroneous exercise of discretion and that Attorney Patton overstepped the bounds of zealous advocacy and instead made a “snarky, rude and unnecessary” comment when he faulted the court for not reviewing the releases at issue before finding they were not overly broad. (¶14). COA also rejects Attorney Patton’s procedural argument that he was not given an opportunity to allocute as required by Oliveto v. Circuit Court for Crawford Countygiven that the court only entered the monetary judgment after Attorney Patton’s firm withdrew their request for a hearing. (¶19)

In a footnote, COA accepts the circuit court’s argument that it was Attorney Patton’s fault that the circuit court did not have the releases at hand before granting DCFS’s request. While it was probably best practice for Attorney Patton, as the party objecting to the releases to make sure they were in the record…he wasn’t the party seeking to compel his client’s signature of those documents. Thus, while his frustration is probably understandable, it does seem like there were several steps that could have been taken to avoid this entire scenario, including holding fast to the request for a hearing at which time counsel could have hopefully perfected the record and, just maybe, persuaded the circuit court he was simply having a bad day.

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