Grievance Administrator v. Fieger

(dissenting). As the Attorney Discipline Board (ADB) has before explained, indeed, in the context of offensive remarks made by this very respondent,

[flew if any members of the Michigan judiciary will be cowed by such outbursts.... [0]ur system of justice is not put at risk if these statements are not censored. The public and the profession can express their revulsion at such crudity, while at the same time feeling pride in belonging to a society that allows its expression. If we write rules governing speech to quell such antics, then we will have truly lost our bearings. The judiciary is not so fragile. It is the First Amendment that needs protection. [Grievance Administrator v Fieger, ADB No. 94-186-GA, opinion issued September 2, 1997 (Fieger II).]

Such protection has been lost today. The majority not only decides a question not before it, but, more troubling, its erroneous conclusions mark a sweeping expansion of the Michigan Rules of Professional Conduct. This expansion precipitates serious constitutional implications and, despite the majority’s protestations to the contrary, does in fact impermissibly exalt the protection of judges’ feelings over the sanctity of the First Amendment’s guarantee of freedom of speech. Thus, I respectfully dissent.

I. THE ADB DID NOT DECLARE THE RELEVANT RULES OF PROFESSIONAL CONDUCT UNCONSTITUTIONAL, SO THE ISSUE IS NOT RIPE FOR REVIEW

Although this Court granted leave to consider whether the ADB can declare a rule of professional conduct unconstitutional, that issue is not ripe for review because the ADB did not declare a rule unconstitutional, a majority of the ADB did not opine that it had the authority to do so, and the ADB’s dismissal of the complaint against respondent was not premised on the purported unconstitutionality of a rule. Thus, the majority errs in addressing this question.

*283In deciding respondent’s appeal, the ADB issued a splintered opinion. Three of the eight participating board members wrote that respondent’s conduct did not fall within the cited rules of professional conduct because the comments were not made “to” or “in” the tribunal. Framing it as an alternative basis for its holding, the lead opinion reasoned that the rules should be read narrowly to avoid constitutional problems. The lead opinion stated that even if remarks made outside the context of a pending case were actionable, the rules did not sufficiently inform a person “what statements might be deemed impermissibly discourteous or disrespectful by the Attorney Grievance Commission, or by a hearing panel, or this Board.”

Two members concurred in part and dissented in part. They wrote that the rules did encompass respondent’s statements, but the First Amendment protected his right to make those statements. The three remaining members dissented, opining that the rules were constitutional and that respondent violated them.

Thus, there is no need to answer the question into which the majority delves because the ADB neither declared the rules unconstitutional nor purported authority to do so. Rather, the ADB’s lead opinion first held that the rules did not cover respondent’s comments. Only then did it mention the constitutional aspects of the rules, but instead of declaring the rules unconstitutional, it merely held that because of the constitutional principles of free speech, the rules should be read narrowly. It then concluded that under a narrow reading, respondent’s comments did not violate the rules. Of course, this view did not garner a majority, and respondent was only vindicated because two of the five remaining board members believed that respondent’s comments were protected by the First Amendment. But *284the trae disagreement between those two factions was over whether respondent’s conduct was even covered by the rales, not over whether the rales themselves were unconstitutional.1 In other words, the rules survived the ADB’s decision — the board did not purport to invalidate them. As such, any opinion by this Court regarding the ADB’s power to declare rales of professional conduct unconstitutional is purely advisory in nature and outside the bounds of our constitutionally imposed duty.

Nonetheless, because the majority persists in issuing its statement on this matter, it is necessary to illuminate the error in the majority’s analysis, which analysis asserts that the ADB lacks the authority to render a rale unconstitutional. In carrying out our duty to regulate the legal profession in the state of Michigan, see Const 1963, art 6, § 5 and MCL 600.904, we created a governing body that operates as a court system reserved for attorney disciplinary matters, and which mirrors the ordinary trial and appellate system. See MCR 9.101 et seq. The attorney discipline system consists of a prosecutorial component (the Attorney Grievance Commission [AGC]), MCR 9.108; hearing panels composed of members who act as judges by conducting public, trial-like proceedings during which they receive evidence and after which they render any necessary discipline, MCR 9.111; and a review board (the ADB), *285which fulfills the judge-like appellate function should an attorney dispute a disciplinary order of a hearing panel, MCR 9.110.

Notably, MCR 9.110(A) describes the authority we bestowed on the ADB as follows: “The Attorney Discipline Board is the adjudicative arm of the Supreme Court for discharge of its exclusive constitutional responsibility to supervise and discipline Michigan attorneys.” (Emphasis added.) The ADB is further charged with disciplining attorneys, MCR 9.110(E)(5), suspending and disbarring attorneys, MCR 9.110(E)(6), and reviewing the AGC’s final orders of discipline, MCR 9.110(E)(4).

It is indisputable, as Justice KELLY points out, that this Court is vested with authority to declare enactments unconstitutional. And it appears from the plain language of the court rule that we have delegated this power to the ADB. When we charged the AGC with “discharging our] constitutional responsibility,” we listed no restrictions in this delegation of power. And, importantly, it seems that had we intended to limit the delegation accordingly, we would have explicitly reserved that power unto ourselves when we undertook the task of delegating our constitutional power to another entity, which task was certainly not taken lightly.

Further, it makes little sense to charge the disciplinary board with carrying out this Court’s duties and requiring it to discipline attorneys, reinstate them, and review final orders of discipline and dismissal in an appellate function without the benefit of deciding constitutional issues raised in that process. We have certainly not restricted trial or appellate courts from declaring enactments unconstitutional, and such rulings are always subject to this Court’s review, just as are *286decisions regarding attorney discipline. Moreover, the fact that we created the attorney disciplinary rules or that there are nonattorneys on the ADB is of no moment — this Court remains the final authority on any action the ADB takes, and we can overturn any of its decisions we perceive as erroneous.

In carrying out its duties, and to render a just and complete decision, it is only logical that the ADB consider any and all arguments an attorney raises in his or her defense. And constitutional issues will inevitably be raised during the attorney disciplinary process. Petitioner’s assertion that the board can consider constitutional principles in its decision-making process, but is nonetheless restricted from finding a rule unconstitutional, is an odd one indeed. This would require our adjudicative arm, to which we gave full charge, to consider only half the question. This Court simply did not restrict the ADB in that way.

In any event, as already discussed, the board did not declare any rule unconstitutional. Rather, it merely considered the constitutional issues respondent raised and construed the rules narrowly in light of those principles, an exercise that the Grievance Administrator acknowledges is permitted. As the Sixth Circuit Court of Appeals has observed:

Even if the Board could not declare a Rule of Professional Conduct unconstitutional — a proposition about which we are not convinced — “it would seem an unusual doctrine, and one not supported by the cited case[s], to say that the [Board] could not construe [the Rules of Professional Conduct] in the light of federal constitutional principles.” Ohio Civil Rights Comm’n v. Dayton Christian Sch., 477 U.S. 619, 629, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986). The Board could, short of declaring a Rule unconstitutional, refuse to enforce it or, perhaps, narrowly construe it. [Fieger v Thomas, 74 F3d 740, 747 (CA 6, 1996).]

*287Thus, the ADB’s actions were within its authority.

Moreover, for the reasons explained by Justice KELLY, the majority’s reliance on Wikman v Novi, 413 Mich 617; 322 NW2d 103 (1982), Lewis v Michigan, 464 Mich 781; 629 NW2d 868 (2001), and Const 1963, art 3, § 2 are entirely misplaced because none of those authorities compels the majority’s result.

Although, again, the question is not ripe, the majority errs in finding a restriction on the Court’s power to delegate constitutional power and in holding that the ADB cannot declare a rule of professional conduct unconstitutional. The majority proffers no persuasive authority to justify its holding. Rather, considering that this Court created the ADB, delegated to it the power to carry out our duty of maintaining discipline in the legal profession, and did not otherwise restrict its authority, it should logically follow that the ADB can both consider constitutional questions and declare a rule of professional conduct unconstitutional.

U. RESPONDENT’S SPEECH DID NOT VIOLATE THE RULES OF PROFESSIONAL CONDUCT UNDER WHICH HE WAS CHARGED

The lead opinion of the ADB correctly concluded that respondent’s public, out-of-court comments, made after the conclusion of the case about which he spoke, did not violate either Rule 3.5(c) or 6.5(a) of the Michigan Rules of Professional Conduct. The rules alleged to be violated simply do not prohibit the type of speech at issue in this case. The majority’s conclusions to the contrary are reached haphazardly and without any regard for the plain language, history, or context of the rules. In a melodramatic fashion, the majority misrepresents respondent as arguing that “there can be no courtesy or civility rules at all of this sort,” ante at 241, and the dissents as arguing for a “repudiation of ‘courtesy’ and *288‘civility’ rules,” ante at 264. Further, the majority loftily declares that the “respect for the wisdom of those who have preceded us in the judiciary in this country and the traditions of the legal process counsel that narrow and carefully tailored regulations of the sort set forth in MRPC 3.5(c) and MRPC 6.5(a) are necessary adjuncts to a responsible legal system,” ante at 241-242 (emphasis added), but then proceeds to interpret these rules with a brush so broad as to now encompass any offensive language used to criticize a judge. The majority’s troublesome expansion of those rules impermissibly silences harsh criticism of the judiciary about a concluded case, thus invading the purview of the First Amendment’s guarantee of the right to speak freely.

A. RESPONDENT DID NOT VIOLATE MRPC 3.5(c) BECAUSE HIS COMMENTS WERE NOT MADE “TOWARD THE TRIBUNAL’

MRPC 3.5(c) restrains attorneys from “engaging] in undignified or discourteous conduct toward the tribunal.” At the core of the arguments here is the interpretation of the phrase “toward the tribunal.” As is evident from the context of this rule, its historical evolution, and its plain language, this phrase pertains only to conduct that occurs in a tribunal or in the immediate environs of a tribunal, such as in judicial chambers.2 Because respondent did not make his comments in that setting, but, rather, made them during a radio broadcast, he did not violate the rule.

While respondent does not appear to argue that his comments were particularly dignified or courteous, the crux of this rule is to prevent such comments in or in *289the immediate environs of a tribunal, not at any time or in any space. In other words, conduct in or near a courtroom, such as conduct in judicial chambers or possibly comments made in pleadings filed with the court can be said to be conduct “toward” the tribunal. The majority’s removal of the proximate element of this rule does indeed result in “protecting the sensitivities of judges,” ante at 242, while at the same time raising grave constitutional implications by restricting a lawyer’s ability to speak outside the context of a judicial proceeding.3 See part III of this opinion. Further, contrary to the majority’s assertion otherwise, such a broad expansion of the rule can and will preclude criticism of the “most robust character,” ante at 246, because it will prohibit attorneys from commenting on legal proceedings of which they have been a part. Notwithstanding the indisputable ability of this Court to prescribe ethical and disciplinary rules, see ante at 240-245, the majority’s myopic focus on what we are permitted to do in the abstract eclipses the more critical question whether this particular ethics rule was crafted to apply to this particular conduct.

MRPC 3.5(c) was designed, as is evident from the placement of the rule in the entire set of professional conduct rules, a historic examination of the rule, and the way the rule has been applied, to control the *290conduct of attorneys in their interactions with the tribunal in their role as advocates for clients, not the conduct or speech of attorneys far removed from the tribunal and the advocatory process. The Michigan Rules of Professional Conduct are divided into eight chapters, each with a descriptive title. Within those chapters, each rule also has a descriptive heading. Notably, Rule 3.5(c) appears in chapter 3, entitled “Advocate,” and has a heading entitled “Impartiality and Decorum of the Tribunal.”4 This arrangement is but the first indication that the rules within chapter 3 are meant to govern attorneys in their active role as advocates and that the rules within the subsections of Rule 3.5 are directed toward behavior that affects the decorum of the forum involved, which in turn connotes a required nexus between the conduct and the actual forum.

In keeping with that theme, the other two subsections of Rule 3.5 prohibit an attorney from seeking to influence judges, jurors, prospective jurors, or other officials, MRPC 3.5(a), and prohibit ex parte communications, MRPC 3.5(b). And the remaining provisions in chapter 3 governing the attorney as advocate clearly pertain to an attorney’s direct dealings with the court system and the dispensation of justice. Those rules are headed “Meritorious Claims and Contentions,” “Expediting Litigation,” “Candor Toward the Tribunal,” “Fairness to Opposing Party and Counsel,” “Trial Publicity,” “Lawyer as Witness,” “Special Responsibilities of a Prosecutor,” and “Advocate in Nonadjudicative Proceedings.” None of these rules, by its heading or its *291content, purports to govern conduct that is unrelated to a potential or ongoing proceeding before a tribunal.

Importantly, the rules appearing in other chapters of the Michigan Rules of Professional Conduct do govern the conduct of attorneys outside of a tribunal. Specifically, chapter 8, “Maintaining The Integrity of the Profession,” contains two rules that are eminently more suited to curtailing the speech of attorneys outside the context of a legal proceeding than MRPC 3.5(c). For instance, MRPC 8.2(a) forbids an attorney from making “a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicative officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office.” And MRPC 8.4, which sets forth the rules regarding “Misconduct,” expressly forbids attorneys from engaging in behavior “that is prejudicial to the administration of justice[.]” MRPC 8.4(c). It would be difficult to say that the broad sweep of MRPC 8.2 and 8.4 does not extend to conduct that shares no physical nexus with a tribunal. In fact, instances too numerous to mention here exist in which an attorney who acted questionably outside the context of a tribunal was charged with violating the rules of chapter 8, but, notably, not Rule 3.5(c). Clearly, then, comments about judges made outside the context of a tribunal are governed elsewhere in the rules, lending further credence to the conclusion that the more precise scope of Rule 3.5(c) encompasses only behavior in or in connection with a tribunal.

Moreover, the comment accompanying this rule sustains the conclusion that the rule is directed only toward conduct that occurs in the tribunal or in the *292immediate environment of a tribunal.5 The comment on MRPC 3.5 states as follows:

Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the Michigan Code of Judicial Conduct, with which an advocate should be familiar.. ..

The advocate’s function is to present evidence and argument so that the cause may be decided according to law. Refraining from undignified or discourteous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.

Clearly, this comment envisions conduct in the context of tribunal proceedings. The comment speaks of “improperly] influencing a] tribunal,” “presenting] evidence and argument,” deciding a case, “speaking] on behalf of litigants,” “standing] firm against abuse by a judge,” “presenting] the cause,” “protecting] the record for . . . review,” and using patience in place of “belligerence” and “theatrics.” Each of these phrases is clearly connected with tribunal behavior or behavior with respect to an ongoing proceeding (see Rule 3.5[a], which governs improper influence, and Rule 3.5[b], which prohibits ex parte communication), and the comment does not refer to, and cannot be interpreted to govern, attorney conduct that occurs outside the context of a tribunal proceeding or the tribunal itself.

*293Further, when interpreting MRPC 3.5(c), the rule’s genesis, which can be traced to the American Bar Association’s (ABA) former Model Code of Professional Responsibility Rule 7-106(0(6), is also instructive. That rule, tellingly titled “Trial Conduct,” provided that “[i]n appearing in his professional capacity before a tribunal, a lawyer shall not. . . [e]ngage in undignified or discourteous conduct which is degrading to a tribunal.” Our former disciplinary rule, DR 7-106(0(6), was identical. Subsequently, the ABA instituted its Model Rules of Professional Conduct, retaining the following concept from DR 7-106(0(6): “A lawyer shall not.. . engage in conduct intended to disrupt a tribunal.” ABA Model Rule 3.5(d).6 We also replaced our former disciplinary code with rules of professional conduct, and our current MRPC 3.5(c) was fashioned from the new ABA rule as well as the corresponding former disciplinary rules. But despite minor wording changes to the rule, nothing about the current wording of the rule (“toward the tribunal”) nor its placement within the rules (under the “Advocate” chapter) suggests any intent of this Court to broaden the scope of the rule to situations beyond the context of tribunal proceedings.

As Justice Kelly explains, the revisions to MRPC 3.5(c), which deviated from the ABA’s revisions to its similar rule, merely eliminated the inquiry into an attorney’s intent that the ABA retained. Our rule instead focuses purely on whether the conduct can be said to be “undignified” or “discourteous,” without respect to whether the lawyer intended it to be so. But both our rule and the ABA’s rule contextually and textually preserved the condition that, to be punishable, *294the conduct must occur in a tribunal or its immediate environs. The overwhelming contextual evidence of this nexus is the placement of both rules among other rules governing conduct in a tribunal or its environs and under chapter headings referring to the decorum of a tribunal. And the textual evidence of the nexus derives from the ABA’s language, “disrupt a tribunal,” and the Michigan rule’s language, “toward a tribunal.”

Of course, it is also important to remark that there has been no warning to the bar that the transformation of DR 7-106(0(6) into MRPC 3.5(c) allegedly served to extend the reach of the latter to conduct occurring outside a tribunal and removed from the active legal process. Although there is compelling evidence that the new rule was not, in fact, so extended, to the extent that any gray area exists, it is preferable to resolve the question most favorably to respondent. See State Bar Grievance Administrator v Corace, 390 Mich 419, 434; 213 NW2d 124 (1973). The inherent fairness of this approach not only is self-evident, but also serves to avoid any precarious trespass over the boundaries of the First Amendment by requiring notice of what type of conduct will be prohibited before punishing it.7

*295Significantly, this Court has not had occasion to interpret MRPC 3.5(c) in its present form before today. Nor has research revealed any ethics opinions regarding this rule — save, critically, one. That ethics opinion involved this same respondent who found himself in quite the same situation as the present case. Fieger II, supra. There, it was claimed that respondent publicly made “knowingly false or reckless statements about various judges and a county prosecutor,” and he was likewise charged with violating MRPC 3.5(c), along with other rules. Both the hearing panel and the ADB refused to find that respondent’s statements violated Rule 3.5(c). The ADB agreed with the panel’s finding that Rule 3.5(c) is intended to govern only conduct directed to the tribunal in a pending matter. The panel had found that because respondent’s comments were made “about judges, and not to them in pending matters,” respondent had not violated the rule. The ADB agreed, concluding as follows:

We agree with the panel that the intent of the rule is to preserve the decorum of the tribunal so that proceedings may be conducted in an orderly fashion. Rude and undignified behavior can detract from the respect an adjudicator must possess in order to effectively manage a courtroom. *296The rule is obviously directed at preventing proceedings from devolving into chaos because of lack of respect for the judge. [.Fieger II, supra at 31.]

Thus, respondent has already been subject to disciplinary proceedings for speaking out publicly in criticism of the judiciary. Yet he was explicitly absolved of the allegation that public comments about judges violated Rule 3.5(c) by both the hearing panel and the review board. And we denied the Grievance Administrator’s application for leave to appeal that decision. 469 Mich 1241 (2003).8 Today, the majority abruptly changes the rule using a cursory and incomplete analysis that pays no heed to history, context, or even plain text. Those who admire the majority for its professed adherence to textualism may be surprised. Respondent probably will not be.

Under a scrupulous reading of the rule and the comment, and considering their evolution, there should be no other conclusion but that the rule governs only conduct that occurs in or near the tribunal in the context of litigation. Respondent’s comments, made during a radio broadcast, were not made in a tribunal, *297near a tribunal, or in any context remotely related to the litigation process or the dispensation of justice. As such, just as respondent did not violate Rule 3.5(c) in Fieger II, he did not violate it in this case.

Justice KELLY also correctly points out the deficiency in the majority’s assertion that limiting the rule’s application to tribunal environs would make the rule “superfluous” in light of a trial court’s contempt powers. See ante at 252; MCL 600.1711(1). The most flagrant error in the majority’s assertion is its obliviousness to the fact that Rule 3.5(c) applies not just to courts and courtrooms, but to all tribunals. Only courts have contempt power. Thus, because not all “tribunals” have contempt power, the disciplinary rule is in no way duplicative of the contempt statute.

Moreover, MRPC 3.5(c), like the rule from which it was adopted, “carries with it the option of a disciplinary sanction as a supplement to the traditional power of judges to punish disruptive behavior as contempt of court.” Office of Disciplinary Counsel v Breiner, 89 Hawaii 167, 173; 969 P2d 1285 (1999) (emphasis added), citing 1 Hazard & Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, § 3.5:401 (2d ed). Further, because only a court has contempt powers, MRPC 3.5(c) provides an avenue for others who may be offended by an attorney’s conduct to seek redress by filing a grievance. And MRPC 3.5(c) allows the body charged with regulating attorney conduct to impose a far more consequential range of discipline on an attorney for violating the rule, from public censure to disbarment. Thus, the rule is in no way rendered “superfluous” by MCL 600.1711(1), and the majority’s contention otherwise is irrational.

And I, like Justice KELLY, dispute the majority’s assertion that construing MRPC 3.5(c) to limit its *298application to tribunals “fails to accord consideration to the importance the courtesy and civility rules serve as a vehicle for preserving the public’s confidence in the integrity of the legal process.” See ante at 252. “[A]n enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” Bridges v California, 314 US 252, 270-271; 62 S Ct 190; 86 L Ed 192 (1941).

Read in its proper context, which the majority’s conclusory analysis fails to do, it is evident that MRPC 3.5(c) applies only to statements and conduct in a tribunal or its immediate environs. Had this Court intended its changes to this rule, which before indisputably governed conduct in a tribunal, to broadly expand the rule to prohibit statements about tribunals, it would have used the phrase “about a tribunal.” And, undoubtedly, such a broad expansion, with such weighty constitutional implications, would have been widely noticed, discussed within the bar, and probably challenged long before now. But this Court did not expand the rule in that manner, as is clear under any fair analysis. Such a change was not needed because other rules govern conduct that occurs elsewhere. Because respondent’s comments were far removed from the setting to which the rule applies, he did not violate it.

B. RESPONDENT DID NOT VIOLATE MRPC 6.5(a) BECAUSE HE DID NOT “TREAT” THE JUDGES WITH DISCOURTESY BY CRITICIZING THEIR DECISION

Respondent correctly contends that his conduct did not violate MRPC 6.5(a) because the rule does not apply to “a lawyer’s out-of-court, public criticism of the judiciary.” The rule states as follows:

*299A lawyer shall treat with courtesy and respect all persons involved in the legal process. A lawyer shall take particular care to avoid treating such a person discourteously or disrespectfully because of the person’s race, gender, or other protected personal characteristic. To the extent possible, a lawyer shall require subordinate lawyers and nonlawyer assistants to provide such courteous and respectful treatment.

An issue similar to that discussed with respect to Rule 3.5(c) inheres in this rule. Specifically, just as Rule 3.5(c) contemplates conduct in a courtroom, Rule 6.5(a) is attendant to lawyers’ interactions with clients and others with whom the lawyer comes into contact in the course of the legal process. Both the comment to this rule, which illuminates the overarching principles behind the rule’s requirements, and the consistent way in which the rule has been applied, support this conclusion. In relevant part, the comment states:

A lawyer is an officer of the court who has sworn to uphold the federal and state constitutions, to proceed only by means that are truthful and honorable, and to avoid offensive personality. It follows that such a professional must treat clients and third persons with courtesy and respect. For many citizens, contact with a lawyer is the first or only contact with the legal system. Respect for law and for legal institutions is diminished whenever a lawyer neglects the obligation to treat persons properly. It is increased when the obligation is met.

A lawyer must pursue a client’s interests with diligence. This often requires the lawyer to frame questions and statements in bold and direct terms. The obligation to treat persons with courtesy and respect is not inconsistent with the lawyer’s right, where appropriate, to speak and write bluntly. Obviously, it is not possible to formulate a rule that will clearly divide what is properly challenging from what is impermissibly rude. A lawyer’s professional judgment must be employed here with care and discretion.

*300A judge must act “[a]t all times” in a manner that promotes public confidence in the impartiality of the judiciary. Canon 2(B) of the Code of Judicial Conduct. See also Canon 5. By contrast, a lawyer’s private conduct is largely beyond the scope of these rules. See Rule 8.4. However, a lawyer’s private conduct should not cast doubt on the lawyer’s commitment to equal justice under the law. [Emphasis added.]

Again, it is clear from the comment that Rule 6.5(a) is circumscribed to an attorney’s treatment of persons with whom the attorney encounters in the legal process. This, of course, accords with the rule’s usage of the term “treat.” “Treat” means “[t]o act or behave in a specified manner toward.” The American Heritage Dictionary, New College Edition (1981). Just as respondent did not conduct himself “toward” the tribunal for purposes of Rule 3.5(c), he likewise did not conduct himself “toward” the tribunal for purposes of Rule 6.5(a). To hold otherwise contorts the plain meaning of the word “treat” and culminates in the curious conclusion that when a person speaks disrespectfully about another person outside that other person’s presence, the speaker is somehow “treating” that person in a certain manner.

Indeed, our disciplinary arm has sharply limited its application of the rule to instances of direct contact and has neither interpreted nor applied the rule in any other manner. Violations of the rule have been found only in instances of, for example, improper sexual conduct, Grievance Administrator v Neff, ADB No. 95-94-GA, notice of suspension issued April 30, 1996; Grievance Administrator v Bowman, ADB No. 95-95-GA, notice of reprimand issued January 3, 1996; Grievance Administrator v Childress, ADB No. 95-146-GA, notice of suspension issued December 6, 1996; Griev*301anee Administrator v Childress, ADB Nos. 97-169-GA and 97-183-FA, notice of suspension issued June 9, 1998; Grievance Administrator v Williams, ADB No. 98-203-GA, notice of suspension issued February 1, 2000; Grievance Administrator v Gold, ADB No. 99-350-GA, opinion issued May 16, 2002; Grievance Administrator v Kohler, ADB No. 01-49-GA, notice of suspension issued December 10, 2001; physical altercations with opposing counsel, Grievance Administrator v Lakin, ADB No. 96-166-GA, notice of reprimand issued November 13,1997; Grievance Administrator v Golden, ADB No. 96-269-GA, opinion issued May 14, 1999; Grievance Administrator v McKeen, ADB No. 00-61-GA, opinion issued May 7, 2003; vulgar and profane comments that interfered with a deposition, Grievance Administrator v Farrell, ADB No. 95-244-GA, notice of reprimand issued December 3, 1996; and threatening statements made directly to another person, Grievance Administrator v Warren, ADB No. 01-16-GA, opinion issued October 2, 2003; Grievance Administrator v Sloan, ADB Nos. 98-106-GA and 98-176-GA, notice of suspension issued April 1, 1999. Further, in some instances in which the only conduct at issue was name-calling in the course of direct communication, the rule was found not to be violated. See, e.g., Grievance Administrator v Szabo, ADB No. 96-228-GA, opinion issued February 11, 1998; Grievance Administrator v MacDonald, ADB No. 00-4-GA, opinion issued January 25, 2001.

As the lead opinion of the ADB correctly observed:

MRPC 6.5(a), like MRPC 3.5(c), seems clearly to extend to discourtesy toward and disrespect of participants in the legal system when such conduct interferes or has the potential to interfere with the orderly administration of justice. To apply this rule in this case, we would have to hold that “treat” means to make comments about a person *302outside their [sic] presence, after the conclusion of the proceedings. This would sweep in any comment critical of a participant’s role in the justice system even after that role had been concluded. In this country, many trials or other proceedings are subject to discussion and analysis after their conclusion. Nothing in Rule 6.5 suggests that “persons involved in the legal process” may not ever be criticized for their role in that process, not even after the involvement has ceased.

Nor is the majority’s treatise on our duty to oversee the legal profession and foster rules geared toward maintaining respect for the judiciary persuasive justification for the broad-reaching interpretation it adopts. As the United States Supreme Court has explained:

We recognize the importance of leaving States free to select their own bars, but it is equally important that the State not exercise this power in an arbitrary or discriminatory manner nor in such way as to impinge on the freedom of political expression or association. A bar composed of lawyers of good character is a worthy objective but it is unnecessary to sacrifice vital freedoms in order to obtain that goal. It is also important both to society and the bar itself that lawyers he unintimidated — free to think, speak, and act as members of an Independent Bar. [Konigsberg v State Bar of California, 353 US 252, 273; 77 S Ct 722; 1 L Ed 2d 810 (1957).]

Further, as we explained in In re Chmura, 461 Mich 517, 540; 608 NW2d 31 (2000), “the state’s interest in preserving public confidence in the judiciary does not support the sweeping restraints imposed by Canon 7(B)(1)(d).”9 Likewise here, the directive of Rule 6.5(a) that attorneys must treat others involved in the legal *303process with courtesy and respect cannot be interpreted as a sweeping restraint on attorney comment regarding concluded cases.

Reading the rule in its proper context and affording the term “treat” its common and ordinary meaning, it is again clear that respondent, by his comments, did not “treat” anyone involved in the legal process. Rather, his comments were permitted public criticism of Court of Appeals judges. Just as is the case with Rule 3.5(c), an interpretation of this rule that enlarges the realm of sanction to public criticism unrelated to the process of administering justice treads dangerously in the waters of the First Amendment’s protections of free speech. Respondent’s speech was not prohibited by Rule 6.5(a) and cannot be found to have violated it.

C. RESPONDENT’S COMMENTS DID NOT PERTAIN TO A PENDING CASE, FURTHER DIMINISHING ANY JUSTIFICATION FOR EXPANDING RULES 3.5(c) AND 6.5(a) BEYOND THEIR INTENDED MEANINGS

The majority observes that restraints on speech can be more encompassing if the speech pertains to an ongoing matter. See ante at 247; Gentile v State Bar of Nevada, 501 US 1030, 1070; 111 S Ct 2720; 115 L Ed 2d 888 (1991). It concludes that the matter about which respondent spoke (Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278; 602 NW2d 854 [1999]) was indeed pending and posits that this justified stricter curtailment of respondent’s right to speak publicly about it. Notwithstanding that the rules did not apply to respondent because they were not comments “toward” the tribunal and respondent did not “treat” the tribunal discourteously, the majority is quite misguided in concluding that the Badalamenti case was “pending.”

*304As Justice Kelly observes, legal and lay dictionaries define “pending” in much the same way: “[r]emaining undecided; awaiting decision,” Black’s Law Dictionary (8th ed), and “awaiting decision or settlement.” Random House Webster’s College Dictionary (1997). Because of the similarity, it is unnecessary to determine whether the term “pending” has acquired a peculiar meaning in the law. The outcome is identical despite which dictionary is used. A “pending” matter is an undecided matter awaiting decision, which the Badalamenti case clearly was not.

The majority points to several court rules and, because they are inapplicable, engages in an exercise of lexical gymnastics to reach its erroneous conclusion. Specifically, the majority cites MCR 7.215(F)(1)(a), which explains when Court of Appeals opinions become “effective.” That rule states that an opinion becomes “effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court[.]” Notably, the rule does not use or define the term “pending” and is in no way referenced by or connected to the disciplinary rule at issue. As such, it is a poor source by which to interpret when a case might be “pending” for purposes of restricting attorney comment, particularly when the word’s common and legal meanings are flatly ignored.

Similarly unhelpful is the majority’s striving attempt to support its position by citing various other procedural rules, specifically MCR 7.302(C)(2)(a), (b), and (c), MCR 7.210(H), and MCR 7.317(C) and (D), that govern filing applications for leave to appeal to this Court and returning the record to the lower court. See ante at 248-249 & n 14. Of course, those rules say nothing about when a Court of Appeals opinion is either “effec*305tive” or still pending. But more importantly, the majority fixates on our procedural mechanisms to the complete disregard of the constitutional framework within which the question must be examined. The bounds of free speech are not a function of procedural court rules, as discussed later. Rather, the inquiry must center on whether the type of harm sought to be prevented is imminent if the speech is not curtailed. When a record is returned to the lower court is completely irrelevant to a discussion regarding whether speech about a case can be silenced.

The majority also “reveals” that respondent ultimately moved for rehearing and for leave to appeal as if this were damning evidence of the pendency of the Badalamenti case. Ante at 249-250 & n 17. It is not. Nothing the majority points to, and nothing uncovered in an exhaustive jurisdictional search, supports the novel notion that speech can be restricted until the time when no further relief from a judgment can ever be sought.

Just as strangely, the majority states that the Badalamenti case was “ ‘begun, but not yet completed’ ” because the Court of Appeals, “by granting a motion for reconsideration or rehearing, could still have affected the substantial rights” of respondent’s client. Ante at 249. It farther opines that the case was still “awaiting rendition of a final judgment” because “Mr. Fieger filed an application for leave to appeal in this Court. . ..” Ante at 250 n 17. This is faulty logic at its core. When respondent made his statements, there was no motion for reconsideration. When respondent made his statements, the case was not “awaiting rendition of a final judgment” because respondent had not, in fact, filed an application for leave to appeal in this Court. It cannot be said any more simply: nothing that had begun lacked completion.

*306Further, without support, the majority decides that the opposite of “pending” is “final.” Ante at 250 n 17. Proffering a purported antonym, with nothing more, to divine the meaning of a word is certainly a novel approach, but in any event,