dissenting:
Although appellant’s conduct should be an embarrassment to himself, members of *308his firm and the trial bar, I respectfully dissent. The majority concludes that the contempt judgment below should be affirmed since it was civil in nature. Consequently, according to the court, the rights and protections guaranteed to those charged with criminal contempt are not applicable to appellant. The proceedings below, which were commenced after the case was settled, were pursued by the district judge for one purpose only, and that was to punish appellant for his professional misconduct and to vindicate the authority of the court. This is classic criminal contempt. Civil and Criminal Contempt in Federal Courts, 17 F.R.D. 167, 178 (1955).
The nature of contempt proceedings depends primarily upon the purpose for which the proceedings are brought. In re Stewart, 571 F.2d 958, 963 (5th Cir.1978). See also Gompers v. Buck Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L.Ed. 797 (1911). The purpose of civil contempt is remedial: “the penalty serves to enforce compliance with a court order or to compensate an injured party.” In re Stewart, 571 F.2d at 963. The purpose of criminal contempt is punitive: “the penalty serves to vindicate the authority of the court and does not terminate upon compliance with a court order.” Id. As stated by the Seventh Circuit in Pabst Brewing Co. v. Brewery Workers Local Union No. 77, 555 F.2d 146, 149 (7th Cir.1977):
“The feature that distinguishes criminal from civil contempt is that the purpose of the former is primarily to punish for actions already taken while the latter intends to coerce for prospective compli-ance____ The test to determine the nature of the contempt is to ask ‘... what does the court primarily seek to accomplish by imposing sentence?’ ”
In the instant case, appellant found himself in a predicament not uncommon to the trial bar. He was required to be in two courts 500 miles apart on the same day. His failure to extricate himself from this dilemma in a professional manner resulted in his being found guilty of contempt of court. Specifically, the district judge held that appellant (a) failed to appear in Cleveland for trial as ordered, and (b) told two different federal judges he was appearing before the other, when in fact, he was appearing before neither.
In her Memorandum and Opinion, the district judge states:
“[T]his court finds Jaques’ rude and irresponsible failure to appear on October 26, 1983 is clearly punishable as criminal contempt under 18 U.S.C. § 401(3) ____ Jaques’ unabashed prevarication regarding his whereabouts is punishable under § 401(1). Unfortunately, the First Circuit was unquestionably correct when it stated: • ‘Merely punishing the delinquent attorney does not solve the problem for the court 'whose calendar was disrupted.’ [United States v. Lespier, 558 F.2d 624, 628 (1st Cir.1977)].
Allowing Jaques to escape all sanctions after such misbehavior would, however, encourage chaos, reward reprehensible tactics, and breed contempt for court scheduled proceedings.
There can be no doubt that Jaques deliberately and recklessly disregarded his obligation to the court. Such intentional disrespect is sanetionable by criminal contempt.”
Memorandum and Opinion, p. 19. (Emphasis added). For these reasons, the district judge found Jaques guilty of contempt under 18 U.S.C. § 401(1) and § 401(3). Ja-ques was ordered to pay to the Clerk of the Court the costs of compensating the venire panel and to reimburse defendant for its counsel’s hotel expenses and attorney fees incurred on October 26, 1983.
Although the district judge stated that this fine was “remedial,” this characterization is not dispositive. United States v. Powers, 629 F.2d 619, 626 (9th Cir.1980). The contempt proceedings were not brought by an injured party seeking reimbursement for costs and expenses, nor were they intended to coerce prospective compliance. The matter was prosecuted by the district judge after the Ahmed case had already been settled. The fine, a portion of which was to be paid directly to the *309Clerk of the Court, was imposed as punishment for past misconduct. Its purpose was to vindicate the authority of the court in the face of what it perceived to be willful and reckless disregard for the court’s order. Accordingly, I conclude that the contempt proceedings were criminal in nature.
Nevertheless, it is apparent that the district judge was unclear herself whether she was citing appellant for criminal or civil contempt. The initial order to show cause referred to “sanctions,” yet at the hearing, no statement was made by the court clarifying whether the contempt was criminal or civil, despite appellant’s request to know the specifics of the charge he was facing. The trial court’s memorandum and order compounds the confusion. Her opinion retained the civil case caption (indicative of civil contempt), but the court specifically, and for the first time, used the term “criminal contempt” in describing appellant’s conduct. Thus, although I am convinced that the proceedings were for criminal contempt, the record is confusing on this point, as evidenced by this panel’s inability to agree whether it was civil or criminal.
A lawyer has a right to know from the very beginning whether he is being charged with criminal or civil contempt. The distinction is vital. Criminal contempt is a crime. If in fact the charge was criminal contempt, appellant was entitled to notice and hearing, right to counsel, right to bail, proof beyond a reasonable doubt, presumption of innocence, privilege against self-incrimination, and in some instances, not only a right to a jury trial, but the right to a hearing before another judge.1 While this circuit apparently has not addressed the question, the Fifth Circuit has repeatedly held that reversal is required when the record does not clearly disclose that the proceedings were civil or criminal. See, e.g., Skinner v. White, 505 F.2d 685, 688-89 (5th Cir.1974); Cliett v. Ham-monds, 305 F.2d 565, 570 (5th Cir.1962). With trial judges currently being urged to use “sanctions”2 to control discovery abuses and eliminate other delaying tactics, one can expect to see more contempt cases on appeal. The Fifth Circuit rule provides clear and unambiguous guidelines to the district judges and its adoption in this circuit would prevent future procedural confusion of the type evidenced by this case.
In addition, the contempt judgment cannot stand since the trial judge erroneously concluded that the order to show cause shifted to appellant the burden of disproving the charges. “It’s not the court’s burden to put on the evidence.” (Tr. 12/22/83, p. 30). Appellant was convicted because of the court’s belief that his explanations were not convincing. In North American Coal Corp. v. Local Union, 497 F.2d 459, 466 (6th Cir.1974), this court held the issuance of an order to show cause does not relieve the party alleging the contempt of the burden of proving the charge. No such proof can be found in this record. There was no sworn testimony and no witnesses, only a tumultuous exchange between appellant and the judge. The judge’s “findings” were based on ex parte accounts related to her by her law clerk and the district court in Baltimore. There can be no question she was incompetent as a witness to render such testimony. See Fed.R.Evid. 605 (presiding judge may not testify in that trial as a witness); Fed.R.Evid. 602 (requirement of personal knowledge); Fed.R.Evid. 802 (hearsay).
Likewise, despite appellant’s failure to show up for trial in Cleveland, it is undisputed that his associate was present at the commencement of the proceedings. Although a dispute exists over the associate’s exact role and authority in appellant’s absence, an attorney is not guilty of contempt for non-appearance where an associate appears in his place. United States v. Dela-hanty, 488 F.2d 396, 399-400 (6th Cir.1973).
In any event, even if the proceedings were civil in nature, I cannot agree that *310there is clear and convincing evidence that such sanctions were warranted under either 18 U.S.C. § 401(3) or § 401(1). Section 401(3) authorizes the court to impose sanctions for “disobedience or resistance to its lawful writ, process, order, rule, decree or command.” Here, the district judge concluded that sanctions were warranted under this statute because Jaques failed to appear in court on October 26, 1983. This conduct, however, cannot be sanctioned under section 401(3), absent an unequivocal order requiring Jaques to be present. I find no such order in the present case.
The trial judge scheduled trial to begin on October 24, 1983. This order, however, could not be the basis for the contempt charge because it was directed to appellant’s associate, not Jaques, and was rescinded by Judge Aldrich at the request of Jaques’ office because the trial in Baltimore was expected to continue until October 25, 1983. The only other “order” issued was a telephone message given by Judge Aldrich’s clerk to Judge Howard’s secretary in Baltimore, stating that Jaques would be “expected” to appear for trial in Cleveland on October 26, 1983.
In In re LaMarre, 494 F.2d 753 (6th Cir.1974), this court addressed the question whether such a message constituted an order under 18 U.S.C. § 401(3). In LaMarre, an insurance adjustor was repeatedly advised by telephone that the trial judge desired his attendance at settlement discussions. The District Court held him in contempt for refusing to attend, and this court reversed, holding that a request by telephone does not constitute an order under section 401(3):
“[The] cases hold or imply that for an ‘order’ or ‘command’ to be enforced by criminal contempt proceedings, it must be clear and definite and ‘entered’ upon the record or records of the court. These standards strongly suggest that such order be permanently preserved for review. This normally means a written order issued by the court and personally served upon the alleged contemner. Such an order, however, may likewise be enforceable if entered in open court in the presence of the person concerned or with his knowledge clearly proved.”
494 F.2d at 758.
Likewise, under similar facts, the Fifth Circuit held in In re Stewart, 571 F.2d 958, 966 (5th Cir.1978):
“[A]n oral ‘message’ such as this, not stated in open court where it could be taken down by a court reporter, addressed to a person not before the court, never entered upon the records of the court, and relayed ... through a person without official status, is not an ‘order’ or ‘command’ within the meaning of subsection (3).”
Judges and lawyers work in a contentious environment under great strains and pressures. Our system presumably thrives on combative advocacy. At the same time, the contempt power of the court is designed to protect the integrity of the court. Thus, when this awesome power is exercised by a judge, no doubt should exist concerning the interpretation of the order alleged to have been disobeyed. This is the teaching of LaMarre, regardless of whether the nature of the proceedings is civil or criminal. In either case, an unequivocal order is required to put the contemner on notice that severe sanctions may be imposed for non-compliance. Since no such order was issued in this case, sanctions could not be imposed under section 401(3).
Finally, as a matter of law, the alleged falsehood contained in the telephone call from appellant’s associate in Baltimore to the judge in Cleveland does not constitute a violation of 18 U.S.C. § 401(1). First, the call was not made by appellant himself, but by his associate. Absent proof that appellant authorized or ratified the allegedly false representation, appellant cannot be held vicariously guilty of contempt. North American Coal Corp., 497 F.2d at 467. Second, the associate’s call from Baltimore to the clerk in Cleveland was not “in the court’s presence or so near thereto as to obstruct the administration of justice.” The Supreme Court has specifically held that this language requires the contemptu*311ous conduct to occur in physical proximity to the court. Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941). In Nye, the defendant, an attorney who represented the defendant in a wrongful death suit, was charged with contempt for having induced the father of the deceased to dismiss the wrongful death suit through the use of intoxicants. Construing the statutory language “so near thereto” as used in the contempt statute, the Supreme Court stated:
“The question is whether the words ‘so near thereto’ have a geographical or a causal connotation. Read in their context and in the light of their ordinary meaning, we conclude that they are to be construed as geographical terms.”
Nye, 313 U.S. at 48, 61 S.Ct. at 815. See also Schmidt v. United States, 124 F.2d 177 (6th Cir.1941); Farese v. United States, 209 F.2d 312 (1st Cir.1954). Here, the conduct in question occurred in Baltimore. Under the cited case law, this does not constitute a violation of 18 U.S.C. § 401(1), as the purported misbehavior was not in the “presence” or “so near thereto” of the Cleveland judge as the statute requires.
In conclusion, while appellant’s conduct and language at the contempt hearing itself may be a basis for imposing sanctions, the contempt citation presently before this court was not warranted under § 401(1) or § 401(3). Likewise, I concur with Judge Wellford that the district court’s judgment cannot be supported by ex post facto reliance upon 28 U.S.C. § 1927. United States v. Ross, 535 F.2d 346 (6th Cir.1976).
Accordingly, I respectfully dissent from the decision to affirm the judgment of contempt entered by the District Court. I do, however, concur in that part of the majority opinion that refers appellant’s conduct at the show cause hearing to the appropriate Bar Association for review and possible disciplinary action.3
. The criminal contempt procedures are set forth in Fed.R.Crim.P. 42.
. Burger, 61st Annual Meeting of the Am.Law Institute, May 15, 1984; Burger, 1984 Year-End Report on the Judiciary.
. Since appellant is licensed by the State of Michigan, the appropriate body to look into this matter is the Michigan Attorney Grievance Commission, 600 Marquette Building, 243 West Congress Street, Detroit, MI 48226.