Grievance Adm'R v. Fieger, Docket No. 127547.

• Court: Supreme Court of Michigan
• Writing for the Court: Taylor
• Citation: 476 Mich. 231,719 N.W.2d 123
• Parties: GRIEVANCE ADMINISTRATOR, Petitioner-Appellant, v. Geoffrey N. FIEGER, Respondent-Appellee.
• Decision Date: 31 July 2006
• Docket Number: COA No. 9.,Docket No. 127547.

719 N.W.2d 123 476 Mich. 231 GRIEVANCE ADMINISTRATOR, Petitioner-Appellant,
v.
Geoffrey N. FIEGER, Respondent-Appellee. Docket No. 127547. COA No. 9. Supreme Court of Michigan. Argued March 8, 2006. Decided July 31, 2006.

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Robert L. Agacinski, Grievance Administrator, Robert E. Edick, Deputy Administrator, and Dina P. Dajani, Associate counsel, Detroit, for the Grievance Administrator.

Mogill, Posner & Cohen (by Kenneth M. Mogill), Hyman Lippitt, P.C. (by J. Leonard Hyman), Morganroth & Morganroth (by Mayer Morganroth), and Schwartz, Kelly & Oltarz-Schwartz, P.C. (by Michael Alan Schwartz), Lake Orion, Birmingham, Southfield, Farmington Hills, for Geoffrey N. Fieger.

TAYLOR, C.J.

As a preliminary matter, this opinion addresses the issues raised on appeal in this case. By a separate opinion in this case, the signers of this majority opinion, Chief Justice Taylor, Justice Corrigan, Justice Young, and Justice Markman, respond to the allegations of Justice Weaver regarding our suitability to sit in this case.

In this case, we conclude that certain remarks by attorney Geoffrey N. Fieger about the appellate judges who were hearing his client's case violated MRPC 3.5(c) (which prohibits undignified or discourteous conduct toward the tribunal) and MRPC 6.5(a) (which requires a lawyer to treat with courtesy and respect all persons involved in the legal process), and that those rules (sometimes referred to as "courtesy" or "civility" rules) are constitutional. Accordingly, we reverse the opinion and order of a divided Attorney

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Discipline Board (ADB) that incorrectly concluded the rules were unconstitutional and remand for the imposition of the agreed-to professional discipline, a reprimand, on Mr. Fieger.

I. Facts and Proceedings Below

In 1997, a jury in the Oakland Circuit Court returned a $15 million verdict in a medical malpractice action in which Mr. Fieger represented the plaintiff Salvatore Badalamenti. On appeal, the defendants hospital and physician claimed that the verdict was based on insufficient evidence and that they had been denied their constitutional right to a fair trial by Mr. Fieger's intentional misconduct. After hearing argument, a three-judge panel of the Court of Appeals, Jane Markey, Richard Bandstra, and Michael Talbot, unanimously ruled on August 20, 1999, that the defendants were entitled to judgment notwithstanding the verdict because the plaintiff had failed to provide legally sufficient evidence that would justify submitting the case to the jury.¹ The panel also held that Mr. Fieger's repeated misconduct by itself would have warranted a new trial. In particular, the Court of Appeals indicated that Mr. Fieger (1) without any basis in fact, accused defendants and their witnesses of engaging in a conspiracy, collusion, and perjury to cover up malpractice, (2) asserted without any basis in fact that defense witnesses had destroyed, altered, or suppressed evidence, and (3) insinuated without any basis in fact that one of the defendants had abandoned the plaintiff's medical care to engage in a sexual tryst with a nurse. The panel described Mr. Fieger's misconduct as "truly egregious" and "pervasive" and concluded that it "completely tainted the proceedings." Id. at 289, 290.

Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that which he had exhibited during the Badalamenti trial and on his then-daily radio program in Southeast Michigan, continued by addressing the three appellate judges in that case in the following manner, "Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss my ass, too." Mr. Fieger, referring to his client, then said, "He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the finger he should keep is the one where he should shove it up their asses."

Two days later, on the same radio show, Mr. Fieger called these same judges "three jackass Court of Appeals judges." When another person involved in the broadcast used the word "innuendo," Mr. Fieger stated, "I know the only thing that's in their endo should be a large, you know, plunger about the size of, you know, my fist." Finally, Mr. Fieger said, "They say under their name, `Court of Appeals Judge,' so anybody that votes for them, they've changed their name from, you know, Adolf Hitler and Goebbels, and I think—what was Hitler's—Eva Braun, I think it was, is now Judge Markey, she's on the Court of Appeals."²

Subsequently, Mr. Fieger filed a motion for reconsideration before the same panel. After that motion was denied, this Court

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denied Mr. Fieger's application for leave to appeal on March 21, 2003.³

On April 16, 2001, the Attorney Grievance Commission (AGC), through its Grievance Administrator, filed a formal complaint with the ADB, alleging that Mr. Fieger's comments on August 23 and 25, 1999, were in violation of several provisions of the Michigan Rules of Professional Conduct, including MRPC 3.5(c), MRPC 6.5(a), and MRPC 8.4(a) and (c).⁴ While the complaint was pending, the parties entered into a stipulation. In return for Mr. Fieger's agreement not to contest that his remarks had violated MRPC 3.5(c) and MRPC 6.5(a), the charges alleging a violation of MRPC 8.4(a) and (c) would be dismissed. The parties further stipulated the sanction of a reprimand. The agreement was specifically conditioned on Mr. Fieger's being allowed to argue on appeal, while the discipline was stayed, both the applicability and the constitutionality of MRPC 3.5(c) and MRPC 6.5(a). Mr. Fieger maintained that the rules were inapplicable because his remarks were made after the case was completed and were not made in a courtroom. Further, he maintained that the two rules were unconstitutional because they infringed his First Amendment rights.⁵

On appeal to the ADB, with one member recused, the remaining eight members of the ADB issued three opinions. The lead opinion, signed by board members Theodore J. St. Antoine, William P. Hampton, and George H. Lennon, concluded that MRPC 3.5(c) and MRPC 6.5(a) did not apply to Mr. Fieger's comments because they were made outside the courtroom in a case they regarded as completed. They further observed that, if the rules did apply, then they were in violation of the First Amendment. A second opinion, signed by members Lori McAllister and Billy Ben Baumann, agreed that Mr. Fieger's comments were protected by the First Amendment, but dissented from the lead opinion's conclusion that the rules only apply to remarks made within the courtroom. A third opinion, agreeing in part with the second opinion, and signed by members Marie E. Martell, Ronald L. Steffens, and Ira Combs, Jr., held that Mr. Fieger's remarks, even though made outside the courtroom, were prohibited by the rules, and that the remarks were not protected by the First Amendment.

The sum of all this was that a majority (albeit not the same majority for each issue) concluded that the two rules applied to Mr. Fieger's out-of-court statements, while a different majority concluded that those rules were in violation of the First Amendment.⁶

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The AGC, through its Grievance Administrator, sought leave to appeal in this Court. We granted leave to appeal to consider whether the remarks by Mr. Fieger, although uncontestedly discourteous, undignified, and disrespectful, nevertheless did not warrant professional discipline because they were made outside the courtroom and after the Court of Appeals had issued its opinion. We also granted leave to appeal to consider whether the ADB possesses the authority to decide issues of constitutionality and whether the two rules in question are constitutional.⁷

II. Standards of Review

We typically review the ADB's factual conclusion that an attorney has violated a rule of professional conduct for proper evidentiary support on the whole record. In re Freedman, 406 Mich. 256, 277 N.W.2d 635 (1979); In re Grimes, 414 Mich. 483, 326 N.W.2d 380 (1982). Yet, review of the record for evidentiary support of the factual conclusions is unnecessary here because Mr. Fieger's plea agreement did not contest that the remarks were "undignified, discourteous, and disrespectful." The remaining issues to be resolved are questions of law. We decide de novo the legal issues concerning the ADB's authority, construction of the rules of professional conduct, and the constitutionality of these rules. Grievance Administrator v. Underwood, 462 Mich. 188, 193-194, 612 N.W.2d 116 (2000).

III. Attorney Licensure and Discipline in Michigan

Const. 1963, art. 6, § 5⁸ and MCL 600.904⁹ give this Court the duty and responsibility to regulate and discipline the members of the bar of this state. Grievance Administrator v. Lopatin, 462 Mich. 235, 241, 612 N.W2d 120 (2000). Most obviously, this responsibility entails concern for the competence, character, and fitness of attorneys, but historically also has included the issuance of rules regulating the manner in which lawyers communicate to the public about other participants in the legal system, primarily judges and other lawyers. While many other professions are regulated with the goal of ensuring competence and fitness, it is only the legal profession that also has imposed upon its members regulations concerning the nature of public comment. The First

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Amendment implications are easily understood in such a regulatory regime and this Court, like other courts of last resort including the United States Supreme Court, has attempted to appropriately draw the line between robust comment that is protected by the First Amendment and comment that undermines the integrity of the legal system.

Indeed, whether this line can be drawn anywhere to take cognizance of the interests of...