Lawyer reportedly tells judge 'thank you' followed by slur in remote hearing
Updated: A Michigan appeals court has upheld a $7,500 fine and contempt finding imposed on a lawyer who allegedly said, “Judge - - thank you. F****** c***,” at the end of a Zoom hearing, in which she ruled against his client.
Marshall Tauber of Bloomfield Hills, Michigan, told the appeals court that, when he made the remark, his car video screen had gone black and he thought the video hearing was over. He made the comment at the conclusion of a June 2024 video hearing in which Judge Yasmine I. Poles of the Oakland Circuit Court ruled against his client on a motion to reinstate a lower bond. The appeals court rejected his arguments in an unpublished Sept. 30 opinion.
After the bond hearing, Poles issued an order to show cause why Tauber should not be held in contempt.
At the contempt hearing, a lawyer for Tauber said her client was “technologically inept at Zoom from a car” and he had no intent for anyone to hear his words. The lawyer said Tauber has been an attorney for more than 40 years, and there had never been a complaint about his behavior, his respect for the court, his diligence or his competence.
At the end of the hearing, Poles found Tauber in direct criminal contempt for using a gender-based slur directed to the court. Repeating Tauber’s words, Poles said the phrase did not “fairly roll off my tongue as easily” as it did for Tauber.
“That is, wow,” she said, according to the opinion.
Poles said staff members were in the courtroom at the time of the remark and Tauber’s client appeared to be in shock.
The appeals court found that Tauber was not deprived of due process and said Poles was authorized to find him in direct contempt based on her observations. The fact that the contempt occurred during a Zoom hearing rather than in the courtroom “does not preclude a finding that misconduct or insolent behavior by an attorney constitutes contempt,” the appeals court said.
The court added that there is no indication that the speaker of the gender-based slur was unclear. The statement was transcribed into the record, and Tauber had sent an apology letter to the court.
Tauber’s appeal also appeared to argue his actions weren’t “willful,” as required for a criminal contempt finding, because he spoke out of frustration and didn’t intend for anyone to hear, according to the appeals court.
“But, the term ‘willful’ for purposes of criminal contempt does not require such an intention,” the appeals court said. “Rather, the willful disregard consists of a statement that tends to impair the court’s authority or impedes its functioning. … Demeaning or belittling the trial court, particularly in front of a client, erodes the public’s confidence in the judicial system.”
Tauber plans to appeal to the Michigan Supreme Court. The biggest issue in the case, he says, is whether he was still in court when he made the comment.
“When your activities are in that gray area of the ether where the court controls when you’re off the so-called air, when are you out of the court?” Tauber says in an ABA Journal interview. “I thought I was out of the court when I said thank you, your honor.”
Tauber estimates that six to eight seconds elapsed between the time he thanked the judge and when he made the remarks.
“They weren’t directed at her, they weren’t intended to be insulting to her, they were just my thought at that moment,” he says. “And I didn’t think I was in the courtroom.”
Tauber says at the end of the bond hearing, he and the prosecutor both disappeared from the car screen, and he turned off the power in his car. He would “never ever ever” make such a remark if he knew he could be overheard, he says.
Tauber had hoped the appeals court would remand the case for a new show-cause hearing before a different judge.
The standard of proof in a criminal contempt proceeding is proof beyond a reasonable doubt, he says. There is no reasonable doubt, he says, if you are in the courtroom when a remark is made to a judge. But circumstances suggest he wasn’t in the courtroom and wasn’t aware he was still on Zoom.
Tauber says he should have had a hearing to establish reasonable doubt, but Poles made her contempt decision without his testimony and without a chance for him and his attorney to review the Zoom video. The appeals court evidently thought he didn’t ask for an adjournment to see the video during the show-cause hearing, resulting in waiver of the issue. But his lawyer did make the request, Tauber says.
“I said nothing at the show-cause hearing,” he says. “My attorney spoke for me.”
And when his appellate attorney heard the facts, Tauber says, she instantly said, “That is not the proper procedure for a criminal contempt case.”
Updated Oct. 9 at 3:30 p.m. to add Marshall Taubers comments.
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