Appeals court delays contempt sentence for attorney’s curse at judge

The Missouri Court of Appeals Eastern District has given a temporary reprieve to a veteran St. Louis County lawyer accused of cursing at a judge during a phone conference. 

In a July 20 order, the appeals court gave Judge John Borbonus a month to respond to a writ petition that attorney Eugene H. Fahrenkrog Jr. filed earlier that day. Until then, the court said, the judge was to “refrain from all action” until further notice.

The order effectively delays a criminal contempt case that has been the talk of the St. Louis legal community. On July 14, Borbonus found Fahrenkrog in contempt after he “did state directly to [the judge] ‘F— you!’” during a hearing. 

“Said behavior was willfully and intentionally committed, contemptuous, insolent and directly tended to interrupt proceedings of this Court and to impair the respect due its authority,” Borbonus wrote. He ordered Fahrenkrog to serve a one-week jail sentence.

To date, Fahrenkrog has not been incarcerated. His writ petition argues, “with due appreciation for the shock and outrage that the remark evoked,” that Borbonus abused his discretion in summarily punishing Fahrenkrog. 

His attorneys, Michael Gross and Joseph F. Yeckel, wrote that he should have an opportunity to prepare a defense and have a hearing before another judge. Reached by phone, Gross declined to comment on the case.

The July 14 hearing concerned an ongoing discovery dispute in a medical malpractice case that Fahrenkrog filed in St. Louis County Circuit Court in 2019. During the hearing, which was conducted via the Webex videoconferencing system, the judge ordered Fahrenkrog to respond to the defense’s interrogatories and to reproduce documents he’d previously turned over within nine days.

In an affidavit, Fahrenkrog wrote that he was upset with the “onerous” requirements the ruling put on his solo practice. He had connected to the hearing from his cell phone while at a hotel room in Kansas City and was not using video. According to Fahrenkrog, he pressed the power button on his phone and thought he had disconnected when he made an “expression of anger.” He then heard Borbonus ask, “What did you say?”

Fahrenkrog wrote that he was “horrified by my mistake” and apologized to the judge on the phone, in an email and in a voicemail left with his chambers. In his follow-up email, he wrote that “there was no excuse for losing my temper and I fully understand you are going to pursue contempt against me and you would certainly be justified in doing so.”

“I did not mean to be obstreperous or to disrupt the hearing,” he wrote in his affidavit. “I was not reciprocating any perceived abuse by Judge Borbonus, who was not at all abusive toward me. My outburst was from frustration, pure and simple.” 

According to his affidavit, Fahrenkrog reported the incident to the Office of Chief Disciplinary Counsel. 

Under Missouri’s Rules of Criminal Procedure, criminal contempt can be punished summarily if the judge “saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court.” Otherwise, contempt is to be “prosecuted on notice” and the defendant is to be afforded due process rights.

Gross and Yeckel argued in the writ petition that there is an “outcome-determinative question of fact” to be resolved.

“Making that remark to Judge Borbonus intentionally would be one thing; making the remark to himself in an empty hotel room with a reasonably held belief that he had disconnected his telephone from the hearing is another,” they wrote. “The first is the willful, intentional, and contemptuous act perceived by Judge Borbonus in the moment; the second is an accident, never intended to be heard by the Court or anyone else.”

According to the court records, an attorney for the defendant in the medical malpractice case, Joseph G.S. Goedde of Lashly & Baer, also was on the call. He was out of the office and could not be reached for comment.

Fahrenkrog, 75, maintains his own practice and shares an office with the Sumner Law Group in St. Louis as an of-counsel attorney. He earned his law degree from Washington University in St. Louis in 1971 and has been a plaintiff’s trial lawyer since 1975. He served as the president of the Missouri Association of Trial Attorneys in 1983 and led the Christian Legal Society from 2004 to 2006.

The case is State ex rel. Fahrenkrog v. Borbonus, ED109787.