The petition instituted by the Justices of the Appellate Division, First Department, specifically charges that respondent violated Disciplinary Rules 1-102, 1-103 (B), 2-101 (A) and (B), and 8-102 (A) and (B) and Ethical Considerations 1-5, 8-6 and 9-2 of the Code of Professional Responsibility of the American Bar Association, adopted without change by the New York State Bar Association, and canon 1 of the Canons of Professional Ethics.
The majority has found respondent guilty of using ‘ ‘ intemperate, vulgar and insulting language ’ ’ which they consider to be “an offense against the dignity and the integrity of the courts and tends to create disrespect for judicial officers generally thereby lessening public confidence in our legal system.” They have therefore decided to censure respondent. From an *226analysis of their language I can only conclude that they have found respondent innocent of all charges of having violated disciplinary rules. With this I agree. However, they have apparently censured respondent as a result of their conclusion that he is guilty of a violation of an ethical consideration. With this I cannot agree.
Ethical considerations cannot result in censure as, unlike the disciplinary rules, they are aspirational in character rather than mandatory (see Preliminary Statement to the Code of Professional Responsibility). This is even recognized by petitioners whose reply concedes that ethical considerations are merely guidelines. Since ethical considerations are not in and of themselves mandatory rules, the findings of the majority should not be the basis for formal disciplinary action as is here being taken.
There are many other aspects of this case which militate against the result reached by the majority. The Grievance Committee of the Association of the Bar of the City of New York, which had recommended after their initial investigation that formal disciplinary action not be taken against respondent, has filed a memorandum in respondent’s behalf. It states, in part, that respondent, “ in a letter to the editors of the magazine in question (not published), . and on other occasions disavowed any intention to attribute venality or personal dishonesty to members of the judiciary and he has expressed regret that his ‘ looseness of speech ’ lent itself to such interpretation.” These attempts by respondent to take corrective action -should be favorably considered by this court in evaluating respondent’s conduct.
The majority’s opinion is directed at the following quotation:
‘ ‘ There are so few trial judges who just judge, who rule on questions of law, and leave guilt or innocence to the jury. And Appellate Division judges aren’t any better. They’re the whores who became madams.”
“I would like to [be a judge] just to see if I could be the kind of judge I think a judge should be. But the only way you can get it is to be in politics or buy it—and I don’t even know the going price.”
The metaphor referring to the elevation in status of Appellate Division Justices is clearly a figure of speech and although the language was colorful, cannot possibly be taken literally as an accusation. A lawyer should not be punished solely on the basis of intemperate remarks especially when these remarks deal with matters of broad current public concern which have *227been widely discussed in newspapers, magazines and professional journals. Respondent) as a Public Defender who has practiced for years in a contentious and frustrating field of the law, was qualified to make .some comment about the status of the criminal court system in New York City and was, in fact, directed to do so by his superior. In addition, the article’s criticisms were not directed at any individual.
Finally, there is another aspect to this matter which troubles me deeply. Overshadowing all else are serious and weighty constitutional questions (see Erdmann v. Stevens, 458 F. 2d 1205). Certainly it cannot be doubted that a citizen has the right under the First and Fourteenth Amendments of the United States Constitution and article I of the New York State Constitution to criticize the judiciary or any other branch of our State and Federal Governments. Although.a member of the Bar must maintain the highest standards of ethical conduct in fulfilling his professional responsibilities (see Matter of Baker, 28 N Y 2d 977, affg. 34 A D 2d 229), he should not be forced to surrender his valuable constitutional rights.
For the reasons enumerated above, I respectfully dissent. The petition should, in my opinion, be dismissed.
Heblihy, P. J., Staley, Jb., and Reynolds, JJ., concur in Per Curiam opinion; Gbeenblott and Simons, JJ., dissent and vote to dismiss in an opinion by Gbeenblott, J.
Respondent censured.