concurring and dissenting.
While concurring with the majority decision with respect to the Soptick complaint, I respectfully dissent as to the majority decision on the Haas complaint. The majority has correctly noted the general rule recognized in State v. Nelson, 210 Kan. 637, 640, 504 P.2d 211 (1972), that an attorney’s constitutional right of free speech is tempered by his obligation to the courts and the bar, a limitation not imposed upon the ordinary citizen. Recause of the seriousness of any state infringement upon a constitutionally protected freedom, the court has properly limited its ability to discipline attorneys for violations of the Code of Professional Responsibility only in those instances where the exercise of the constitutional right infringes upon some significant state interest. *909In defining the scope of a significant state interest, this court has approved the rationale of Polk v. State Bar of Texas, 374 F. Supp. 784, 787-788 (N.D. Tex. 1974), which holds that the state has a significant interest only when the attorney’s conduct reflects on his ability to represent his clients competently and honestly, or interferes with the administration of justice. The majority in this case has concluded that respondent’s campaign advertisement contained statements which he should have known were false, thereby adversely reflecting on his ability to represent his clients competently and honestly. It is with this conclusion that I disagree.
In Polk v. State Bar of Texas, 374 F. Supp. 784, the attorney Polk had made derogatory statements about the professional conduct of the prosecuting attorney and judge in a criminal case in which Polk was the defendant. The court found the statements insufficient grounds for discipline, as Polk’s statements were made in the capacity of a private citizen and outside his professional status as an attorney. The court concluded that while, in some instances, discipline might be appropriate, in that case there was no evidence that Polk’s conduct in any way affected either his representation of his clients or the administration of justice. In the cáse at bar, there is, likewise, a lack of showing that the statements made by respondent Russell adversely affected his ability to represent his clients or the administration of justice. This case is, therefore, readily distinguishable from those cases in which discipline was held appropriate for abusive and unfounded attacks on the integrity of an incumbent judicial candidate, as undermining the effectiveness of the judge and the administration of justice. See the cases cited in 57 A.L.R.2d 1362, Attorney’s Conduct in Political Campaign as Ground for Disbarment or Other Disciplinary Action. See also In Re Sawyer, 360 U.S. 622, 3 L.Ed.2d 1473, 79 S.Ct. 1376 (1959) (conduct did not impugn integrity of the trial judge, and, therefore, did not obstruct the orderly administration of justice).
I, likewise, cannot agree with the majority’s conclusion that, because Section 11 of the Kansas Bill of Rights specifically states that a person exercising his right to free speech is responsible for abuse of that right, it should follow that respondent in this action is to be subjected to professional discipline for his campaign advertisement. In Kansas, a political candidate puts his qualifi*910cations into issue, and any comment thereon, however injurious, is privileged so long as the comment is made in good faith. See Good v. Higgins, 99 Kan. 315, 161 Pac. 673 (1916); Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281 (1908); and State v. Batch, 31 Kan. 465, 2 Pac. 609 (1884). This rule is in accord with the more recent decisions that a communication which is qualifiedly privileged is not libelous unless actual malice is pleaded and proved. Bradford v. Mahan, 219 Kan. 450, 456, 548 P.2d 1223 (1976). A candidate for political office has a cause of action in defamation under Kansas law for false criticism by his opponent only when such criticism is motivated by malice. In the present case, counsel for the disciplinary administrator in his brief has conceded that the publication here in issue was in all likelihood privileged under the law of libel and slander.
Where, as here, the attorney was acting outside of his professional capacity in the exercise of his constitutional right to free speech and the offending conduct could not reasonably affect his representation of clients or interfere with the administration of justice, there is no sound basis for professional discipline. The threat of discipline in such a case will have the effect of chilling an attorney’s exercise of his right to free speech by discouraging him from entering into and participating fully in the political process. I, therefore, respectfully dissent.