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When Fort Lauderdale, Fla., attorney Lee A. Cohn was caught representing a client after he was disbarred, he was ready to plead guilty to criminal contempt of court. What Cohn didn’t expect was a ruling by U.S. District Judge William Zloch that the attorney had committed a Class A felony and was subject to a maximum sentence of life in prison. Zloch ended up sentencing Cohn to 45 days in 2007 and five years of supervised release. In anticipation of an appeal, the former chief district judge’s ruling noted the federal sentencing guidelines don’t cover everything, and criminal contempt is one exception. “Zloch says you can’t as a judge just make things up,” said Robert Jarvis, a law professor at the Nova Southeastern University’s Shepard Broad Law Center. The 11th U.S. Circuit Court of Appeals ruled Sept. 30 in Cohn’s case that there is no such thing as felony or misdemeanor contempt of court, finding the contempt charge to be “sui generis,” Latin for a class of its own or unique. The appellate court, which reached back to U.S. Supreme Court cases from 1987 and 1966 on contempt, returned the case to Zloch for resentencing. Contempt of court is unique on several levels, the appellate court reasoned. It doesn’t need to be presented to a grand jury, for instance. A judge simply assigns a prosecutor to litigate the case. “There has always been a legal debate over how to classify contemptuous behavior in the courtroom,” said Aventura attorney Yale Galanter, who along with Cohn represented O.J. Simpson in a Miami road rage case in 2001. A phone call to Cohn’s Fort Lauderdale office went unanswered. Galanter said he understands Cohn closed his practice after he was disbarred a second time in January for impersonating an attorney after he was initially disbarred. Cohn got in trouble with Zloch in 2006 when he represented a client who was pleading guilty to trafficking crack cocaine. The lawyer had been disbarred two weeks earlier by the Florida Supreme Court. Cohn’s law license also was suspended once in 2003 and twice in 2005. The drug defendant’s plea and sentence were vacated when a new attorney took over based on ineffective counsel. In retrospect, Cohn might be thought of kindly by fellow attorneys who break the rules in federal court by forcing the appellate court to explore the contempt issue and saving them from draconian sentences. “Uniform classification of criminal contempt would be inconsistent” with the law, the appellate panel said. “On the other hand, it would be an impracticable, painstaking task individually to classify each instance of criminal contempt.” JUDICIAL DISCRETION “This opinion doesn’t affect Lee as much as it affects other lawyers,” Galanter said. “Even though Zloch classified the contempt as a Class A felony, he really bent over backwards to give Lee a break and sentenced him to 45 days. The bottom line, it’s not going to change Lee’s sentence one iota because 45 days is certainly within the bounds of misdemeanor or felony.” A hearing is set Tuesday to determine Cohn’s status. He has been free on bond pending appeal. Attorney Marc Fagelson, a solo practitioner from Fort Lauderdale, argued the case, which was briefed by J. David Bogenschutz of Bogenschutz & Dutko in Fort Lauderdale. Bogenschutz said Zloch “believed he was kind of constrained” and took an academic view of the issue to get guidelines for contempt sentencing. The appellate panel — 11th Circuit Judges Gerald Bard Tjfolat and Susan H. Black and U.S. District Judge Orinda D. Evans of Atlanta — said in an unsigned opinion that the question of whether criminal contempt was a felony or a misdemeanor was “a case of first impression in this circuit.” Zloch tried to find a way to fit criminal felony contempt into the federal guidelines, Jarvis said. “The real problem is the sentencing guidelines. When you try to list everything in sentencing guidelines, you end up with cases like this that fall through the cracks,” he said. The impact is that a contempt sentence is up to a judge’s discretion as long as it doesn’t inflict cruel and unusual punishment as defined by the Eighth Amendment, Jarvis said. Zloch has not shown mercy to attorneys who break court rules or insult the federal justice system. He is contemplating unilaterally barring Fort Lauderdale employment lawyer Loring Spolter from federal court for five years after Spolter gave an interview to the Daily Business Review criticizing the judge’s dismissal of three of his cases.

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