dissenting.
The court’s opinion holds that where seasoned lawyers have instructed a witness to disobey a valid and unambiguous court order, the court cannot find that they had “ ‘[knowledge that [their] act [was] wrongful and a purpose to nevertheless do the act.’ ” At p. 609. I find this a startling proposition, one likely to work great mischief.1
I doubt that there is any lawyer in the United States who does not know that a subpoena is a court order and remains such until vacated or discharged by the court. Clearly, Messrs. Minella and Boylan were not ignorant on this score.2 If they had really believed that under some New Jersey “loose practice” the filing of their motion to dismiss had caused the court’s order to evaporate,3 they would have had no occasion to consider filing a protective order or *614to include a request for a stay of discovery in a footnote of the brief supporting their motion to dismiss.
If, as the court holds, there is insufficient evidence in this case to support a finding that Messrs. Minella and Boylan willfully resisted the court’s lawful order within the meaning of 18 U.S.C. § 401(3),41 am at a loss to understand how an offense under that section can be proven. Because the court’s decision undermines the statute and leaves district judges without authority to insist upon compliance with the orders of their courts, I respectfully dissent.
The majority focuses on the negligible delay caused by the attorneys’ conduct, as well as the court’s alternatives to the criminal contempt remedy. These factors may be relevant when evaluating whether a court’s decision to punish a contempt was an appropriate exercise of its discretion. They are not indicative, however, of whether an alleged contemnor acted with the willfulness necessary for criminal contempt.
In Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975), the Supreme Court reversed a contempt order against an attorney who, in good faith, advised a witness to disobey a subpoena duces tecum on fifth amendment grounds. Id. at 465, 95 S.Ct. at 594. Nonetheless, the Court reiterated the basic rule that all court orders and judgments must be complied with promptly and that those who privately determine the law and refuse to obey a court order risk contempt, even if the order ultimately is ruled incorrect. Id. at 458, 95 S.Ct. at 591. The Court emphasized that the result in Maness differed from the general rule because the attorney had advised his client to resist the subpoena on fifth amendment grounds. See id. at 460-61, 95 S.Ct. at 592. The privilege against self-incrimination would be meaningless, the Court concluded, if attorneys faced punishment for advising their clients to assert the privilege. Id. at 465-66, 95 S.Ct. at 594-95.
Appellants attempt to distinguish Commonwealth of Pennsylvania v. Local Union 542, 552 F.2d 498 (3d Cir.), cert. denied, 434 U.S. 822, 98 S.Ct. 67, 54 L.Ed.2d 79 (1977), in which we upheld a criminal contempt citation against an attorney who had been warned seven times that his courtroom conduct was bordering on contempt, thus providing the attorney with ample reason to know that a contempt citation would be imposed if he did not desist. See id. at 502. I do not read Local Union 5Ip2 necessarily to require the trial judge to place an attorney on notice that his conduct could result in a contempt citation. A warning is not the only basis on which an attorney would have reason to know that his conduct is wrongful.
Federal Rule of Civil Procedure 45(f) provides: “Failure of any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.” Messrs. Minella and Boylan instructed Steven Petner to disobey a valid order of the court, a volitional act by experienced attorneys. The district court did not believe their good faith defense. The issue before us is whether there was sufficient evidence to support its finding beyond a reasonable doubt that their conduct constituted willful disobedience of a court order. I believe that there was.
The remaining issue is whether the district court abused its discretion in imposing contempt in this case. To vindicate its authority, I believe the district court could have imposed a lesser sanction or even could have treated this matter as a breach of the discovery rules and imposed similar sanctions under Fed.R.Civ.P. 37. Nevertheless, the action taken by the district court was within its authority and I cannot say it constituted an abuse of discretion.
. I find equally startling, though more benign, the suggestion that a lawyer brings an issue before the court by burying a request in a footnote of a brief on another subject. See p. 611.
. If they had been uninformed concerning this "hornbook law” before service of the subpoena, they could not have remained ignorant thereafter. As was clear from its face, the subpoena was issued by the court, "commanded" Mr. Pet-ner to appear, and cautioned that “[t]his subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court.”
.Mr. Boylan described the loose practice as follows:
We do it in New Jersey. With the consent of counsel, we will file a Motion to Dismiss a complaint for lack of jurisdiction, and discovery will be stayed.
I note that Messrs. Minella and Boylan do not claim that the district court was without jurisdiction in this case, and they knew by virtue of the subpoena that there was no “consent of counsel” to a stay of the deposition.
. As I read the hearing transcript, the district court found that Messrs. Minella and Boylan knew they had no right to resist the court's order and, nevertheless, deliberately chose to do so. The majority apparently reads the record in the same way. If there were any doubt about whether such a finding was made by the district court, the appropriate response would be a remand for more explicit factfinding.