concurring.
I agree with the majority’s analysis and result, but I write separately to emphasize the importance of Federal Rule of Criminal Procedure 42(b), which requires that notice and hearing be given in every case where the contempt may not be summarily punished. Clearly, the dictates of Rule 42(b) were not followed in this case, as the attorneys were never on notice, until the very end of the contempt hearing, that they were in jeopardy of being held in contempt. As we have previously observed, “[d]ue process requires that, before one is subjected to the court’s contempt power, one is entitled to notice that he is being so charged.” Remington Rand Corp.-Delaware v. Business Systems, Inc., 830 F.2d 1256, 1258 (3d Cir.1987). The notice requirement is not simply a procedural nicety; its practical importance is evident in this case. Had the attorneys known that they were in danger of being held in criminal contempt, they could have taken basic steps to protect their rights, such as retaining their own counsel or presenting more cogent arguments “relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.” Cooke v. United States, 267 U.S. 517, 537, 45 S.Ct. 390, 395, 69 L.Ed. 767 (1925).1
As to the substance of the present criminal contempt adjudication, I note that giving bad legal advice is not the equivalent of contumacious conduct. If the $500.00 fine had been imposed as civil sanctions for the *613reimbursement of counsel fees caused by appellants’ improvident advice, I would have affirmed such sanctions, or even a harsher civil penalty. Cf. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (per curiam) (affirming dismissal of antitrust action because of plaintiffs’ bad faith discovery conduct). However, when judges — even wise and sensitive judges — move from the civil to the criminal process to vindicate what they perceive as exceedingly grievous conduct of counsel, the judge must be scrupulously careful to protect the alleged contemnors’ procedural and substantive rights. Even in those rare instances when a judge must sentence lawyers to criminal contempt without prior notice pursuant to Federal Rule of Criminal Procedure 42(a), the lawyers’ conduct must establish beyond a reasonable doubt the criminal willfulness to disobey or resist a court order. Commonwealth of Pennsylvania v. Local Union 542, Int’l Union of Operating Engineers, 552 F.2d 498, 510 (3d Cir.1977), cert. denied, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977). In my view, the record in this case does justify a significant civil sanction but it does not warrant the draconian remedy of criminal contempt.
. I note that by representing themselves, appellants may have deprived themselves of the detachment that is necessary to protect proficiently their own rights. In particular, counsel’s waiver of the procedural argument is incomprehensible to me. I do not believe this waiver would have been made by counsel more detached from the fray and less involved in the obvious embarrassment of this incident. In any event, as the majority notes, At 607, the "procedural irregularities” in the present action may have constituted plain error.