A Washington federal appeals court on Tuesday affirmed a criminal contempt order for an Arlington, Virginia, attorney who refused to take the witness stand.

A panel for the U.S. Court of Appeals for the D.C. Circuit knocked down solo practitioner Matthew LeFande's bid to vacate the order. A federal magistrate judge in Washington hit LeFande with a criminal contempt order in September 2017 after he refused to take the witness stand in a civil case that involved two clients. U.S. Magistrate Judge Deborah Robinson of the District of Columbia held him in contempt and fined him $5,000, and U.S. District Judge Amy Berman Jackson affirmed the order last year.

In his appeal, LeFande sought to set aside the lower court's order, contending the district court lacked subject-matter jurisdiction in the underlying proceeding. He also argued it lacked personal jurisdiction over him, and that the order to testify violated attorney-client privilege.

“Because none of those arguments has merit, we affirm the criminal contempt order,” Judge Cornelia Pillard wrote. Judge Patricia Millett and Senior Judge Harry Edwards joined.

LeFande said he will seek an en banc rehearing. LeFande said he found the panel's reasoning “extraordinarily deficient,” and defended what he described as “an absolute duty” to his deceased client “who otherwise had no voice.”

In the underlying case, the lower court ruled against Lefande's clients and imposed a $300,000 judgement. The clients were locked in a dispute with real estate settlement company District Title.

District Title sought to conduct post-judgment discovery in an effort to collect the judgment. At one point, it sought to depose LeFande, because it believed he knew and helped his clients transfer assets to New Zealand to escape the judgment.

In a hearing, the magistrate judge ordered LeFande to take the stand for questioning, but he repeatedly refused, citing attorney-client and Fifth Amendment privileges, among other things.

LeFande told the D.C. Circuit that the district court lacked subject-matter jurisdiction over the underlying post-judgment discovery proceedings, because they came after one client died and the other filed for bankruptcy.

But the D.C. Circuit brushed aside his argument, writing that the district court “indisputably” had jurisdiction. Pillard wrote that “leaving the merits of those claims aside, the Supreme Court has specifically 'upheld a criminal contempt citation even on the assumption that the District Court issuing the citation was without jurisdiction over the underlying action.'”

The panel also rejected LeFande's argument that the court lacked personal jurisdiction over him because he wasn't served with a subpoena. Pillard noted the court had given LeFande “clear notice” of why he had to appear before the court, which gave him time to object to the order.

Although LeFande hadn't “specifically” raised the point on appeal, Pillard also said the panel believed the judge's in-person order to testify, instead of a subpoena, was sufficient.

The judge wrote: “As every lawyer knows, a court order is backed by the contempt power,” although she added that the panel expressed “no general approval, beyond the unusual circumstances of this case, of a court order as an adequate substitute for a subpoena.”

The panel also said LeFande's objection on the grounds of an attorney-client privilege violation was “contrary to circuit law.”

Pillard said LeFande bore the burden of establishing a claim of privilege. She noted the correct process for asserting privilege would have been for LeFande to take the stand and assert the privilege claims and their basis, something the lower court had specified when it rejected LeFande's blanket assertion of privilege.

LeFande's law firm biography says he has practiced complex civil litigation and appellate work for over 15 years. He argued the case, but was represented by n briefs.

A spokesman for the U.S. attorney in Washington, D.C., which handled the appeal, did not immediately return an email seeking comment.

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