concurring and dissenting.
[¶22] I would adopt the Disciplinary Board’s entire recommendation. Because *79the majority does not adopt the Disciplinary Board’s recommended sanction I dissent to that portion of the majority opinion.
[¶ 23] Lucas relied upon the decision in Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 578 A.2d 1075 (1990), construing a provision of that State’s rules of professional conduct comparable to N.D.R. Prof. Conduct 4.2, to justify his actions in contacting the Condominium Board. I agree with the majority opinion that the reasoning of the other courts which have considered this matter are more persuasive than Pinsky and that we should reject the Pinsky rationale. Nevertheless, at the time Lucas contacted the Board, there was a split of authority on an issue on which this Court has not yet spoken. Ordinarily, in applying the Rules of Professional Conduct, I do not believe that a lawyer should be disciplined for relying on a minority position that this Court subsequently rejects.
[¶ 24] Although Lucas had been reprimanded previously for similar action, Lucas petitioned this Court to review the hearing panel’s decision. We denied the petition and did so by order and without explanation. This Court does not grant leave to appeal an informal decision “unless the person seeking leave to appeal shows that the board acted arbitrarily, capriciously, or unreasonably.” N.D.R. Lawyer Discipl. 3.1(D)(8). Nevertheless, it is only now, in the majority opinion, that “We join the majority of courts in rejecting the rationale of the court in Pinsky ” and “We conclude that the reasoning of courts in In re Haley and Runsvold is more persuasive than Pinsky and that the majority position is more in line with our precedent and with our prior application of Rule 4.2 in the prior Lucas case.”
[¶ 25] Perhaps Lucas should have been able to glean the fact we disagreed with his interpretation of Rule 4.2 from our order denying his petition to appeal the public reprimand. However, that public reprimand concerned Rules of Professional Conduct in addition to Rule 4.2. I believe that Lucas’s failure to grasp the significance of the order denying his petition to appeal is why the hearing panel in this instance found Lucas’s action was more negligent than intentional. For that reason, as well as the other reasons cited by the hearing panel, I would impose a public reprimand rather than suspension.
[¶ 26] BENNY A. GRAFF, S.J., concur.