concurring in part and dissenting in part:
I concur in both the result and rationale of Part II of the majority’s opinion, vacating moot claims, and Part VIII of the majority’s opinion, reversing the ruling on disqualification of attorney Richard M. Lang-way. I dissent from the majority’s affirmance of sanctions against attorney Richard M. Kirby and the law firm of Hansell & Post. I do so not because I approve counsel’s actions in this case — emphatically, I do not — but because the sanctions here at issue were imposed for the violation of direction by the district court which I believe was unclear. Because I am unwilling in principle to place upon an attorney by hindsight a duty to divine at his peril the import of an unclear directive from the court, I reach a result contrary to the majority on the issue of sanctions.
The cornerstone of Judge Vance’s thoughtful resolution of the sanction issue is that “[t]he decision to take the question of informal contacts with class members under advisement acted as an order which barred opt-out solicitations and similar communications until further notice.” Majority opinion at 12. I cannot agree with this determination. When a court tells a lawyer that his argument is under advisement that lawyer should, in fairness to the judge, refrain from further action on the contested point or, alternatively, seek clarification from the court. This lawyer acted otherwise and in doing so skated on the thinnest of ice. The issue before us is simply whether the ice broke. The majority concludes it did, and I, that it did not.
The power of judicial sanction is great. The consequence of its exercise may be severe. This is properly so because of the magnitude of the interest served, the orderly administration of justice — the rule of law itself. But a concomitant of that power is a great caution and an abiding concern that the rule upon which the law is to operate be clearly articulated. As the majority notes, this is particularly so with respect to lawyers because upon a lawyer’s understanding depend the rights of many, and the trial lawyer is an advocate.
The rule articulated by Judge Evans in this case, and putatively violated by Kirby was, regrettably and through no fault of *1212Judge Evans,1 unclear. Solely on that basis, I disapprove the affirmance of sanctions in this case.
Ratio decidendi aside, a further observation is warranted. In Bernard v. Gulf Oil Co., 619 F.2d 459 (5th Cir.1980) (en banc), our predecessor court reversed the district court order prohibiting a class-action litigant’s contact with class members. Two grounds for that result were articulated. The- narrower ground, not at issue here, was that the order was inappropriate under Rule 23(d) of the Federal Rules of Civil Procedure. Bernard, 619 F.2d at 478. However, the en banc court also found the subject order implicated first amendment freedoms of expression and invalidated it as an unconstitutional prior restraint. Bernard, 619 F.2d at 477. Reviewing that decision, the Supreme Court affirmed on the Rule 23(d) ground, but was silent on the constitutional holding of the case. Gulf Oil Co. v. Bernard, 452 U.S. 89, 103-104, 101 S.Ct. 2193, 2201, 68 L.Ed.2d 693 (1981). The constitutional holding of Bernard, whatever that holding may be, is thus binding authority in this circuit today. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc).
As I read Bernard, it holds that an order barring communication between class-action litigants and other members of the class violates the first amendment. I apprehend that attorney Richard Kirby, perhaps with some surprise, also read Bernard in this way. As I said in Bernard, I believe it unwise to subject orders issued by a trial judge in connection with an ongoing law suit to first amendment scrutiny. Bernard, 619 F.2d at 481 (Hill, J., dissenting). For that reason, I believe Judge Vance’s narrower interpretation of Bernard, incorporated in the majority’s opinion here, states better law. Nevertheless, I am reluctant to uphold sanctions against a lawyer, reading Bernard without benefit of Judge Vance’s opinion, for interpreting that case as I interpreted it.
Finally, it is contended that the attorney did not violate any order of the district court because he did not personally contact members of the subject class but merely assisted his client, the bank, in doing so. This is frivolous! A lawyer is retained by the client as the client’s representative in the judicial process. The client may be bound not only by representations made by the lawyer to the court, but also by the court’s directives to the lawyer acting on behalf of the client. Any theory to the contrary would necessitate, in addition to the appearance of counsel, the appearance of each client before the court. Such a rule would be unworkable. It is emphatically rejected.
In summary, I conclude that what may well have been intended as a directive issued by the district judge in this case was, through no fault of the judge, unclear. Although I should prefer that one exercising the prerogatives, and assuming the heavy responsibilities of a trial lawyer deal more forthrightly with the court, I do not join in affirming sanctions levied for violation of that directive. To that extent, I respectfully DISSENT.
. At whose door may the confusion attending Judge Evans’ direction with respect to the contact of potential class members be laid? I believe it was the responsibility of the lawyer seeking the court’s protection from that contact to request of the court a clear directive. That was not done. And yet, as I cannot fault this earnest and even-handed judge, seeking to pass upon innumerable issues in a complex and quickly moving case, I cannot fault an advocate for overlooking the fact that a directive of the court was phrased with less than absolute clarity. Ours is a human system, striving to be fair. We can expect no more than that.