dissenting.
I respectfully dissent. I agree with the Court’s conclusion that the quoted passage from the text of respondent’s brief is not a ground for discipline. Although it is “heavy handed,” it nevertheless asserts grounds for transfer provided by this Court’s rules.
I disagree that footnote 2, tasteless as it is, is a ground for disciplinary action. The footnote asserts that “one is left to wonder whether the Court of Appeals was determined to find' for Appellee ... and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported that conclusion).” I *720do not agree with the respondent’s contentions in the offending footnote, and I certainly do not condone the respondent’s choice of language in expressing them. Moreover, such intemperate language is very poor advocacy, distracting as it does from the points that are sought to be made. I nevertheless do not believe these opinions are sanctionable. Indeed, I would find them within the broad range of protected fair commentary on a matter of public interest.
Although footnote 2 certainly is understood to challenge the intellectual integrity of the opinion, I do not believe it suggests any motive other than deciding the case in favor of the party the court determined should prevail. It certainly does not suggest criminal motives. In this respect, it seems to me no different from the attacks many lawyers and nonprofessionals have launched on many court decisions, including such notable ones as Bush v. Gore and Brown v. Board of Education. I cannot see how this footnote differs from the charges occasionally leveled by judges at other judges. For example, Justice Scalia recently contended in Atkins v. Virginia, 536 U.S. 304, -, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (Scalia, J., dissenting) that “[sjeldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” See also Webster v. Reproductive Health Servs., 492 U.S. 490, 532, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989) (Scalia, J., concurring) (stating that assertions by Justice O’Connor were “irrational” and “cannot be taken seriously”).
Although this Court has previously held that the law of defamation and the law of professional conduct do not overlap, In re Terry, 271 Ind. 499, 502, 394 N.E.2d 94, 95-96 (1979), the United States Supreme Court has since made it clear that “disciplinary rules governing the legal profession cannot punish activity protected by the First Amendment.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1054, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). It seems clear to me, then, that Justice Sullivan was correct when he noted in In re Atanga, 636 N.E.2d 1253, 1259 n. 1 (1994) (Sullivan J., dissenting), that the “actual malice” test of N.Y. Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), applies to determinations that an ethics violation has occurred by expressing criticism of a legal opinion. That test is a subjective one, and for a violation to have occurred the respondent “in fact [had to have] entertained serious doubts as to the truth of [the] publication.” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 688, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989).
As the Court points out, the respondent set forth the reasons why he believed his criticism of the Court of Appeals was valid. He contends the court’s opinion was “factually and legally inaccurate,” misstated the record, misapplied case law and did not discuss other relevant cases. He contends that to this day he “believes in the substance of the language contained in the footnote.” Although I do not agree with his conclusions, I can find no basis to find that the respondent entertained serious doubts as to the accuracy of his claims. Therefore, I do not agree the respondent’s conduct is punishable under Rule 8.2.
Finally, I think we should be very cautious in imposing discipline for lawyers’ acts that question the actions or processes of the courts but do not affect client interests. This Court acts as judge, jury, and appellate reviewer in a disciplinary proceeding. The prosecutor, the Disciplinary Commission, relies on this Court for funding and direction. Where the offense consists of criticism of the judiciary, we become the victim as well. This mixed role *721is thrust upon us by the State Constitution. I accept it, but believe that it demands the utmost restraint in imposing discipline for expression of criticism of the courts. I would require a finding that a lawyer had at least substantial doubt as to the accuracy of a misstated material fact before sanctioning the lawyer for comments on judicial acts or processes. That standard is not met here.