¶68
(dissenting) — George Trejo allowed a trusted employee to access his client trust account. This employee repaid Trejo’s trust by embezzling from him. Because of this theft, his client trust account ran a deficit and incurred an audit by the Washington State Bar Association. But today the majority blames the victim of the theft and redoubles Trejo’s loss. His suspension is the result of his lack of distrust resulting in minor accounting errors. However, Trejo should not be punished so severely for his naiveté that led to his victimization as “[t]hey that know no evil will suspect none.”22 Since Trejo is the only victim of this theft, I must dissent.
Sanders, J.¶69 When an attorney violates professional duties, the court determines the appropriate sanction using a two step process. In re Disciplinary Proceeding Against Anschell, 149 Wn.2d 484, 501, 69 P.3d 844 (2003). “ ‘First, we determine a presumptive sanction by considering (1) the ethical duty violated, (2) the lawyer’s mental state and (3) the extent of the actual or potential harm caused by the misconduct. *736Then, we consider any aggravating or mitigating factors which may alter the presumptive sanction.’ ” In re Disciplinary Proceeding Against Dann, 136 Wn.2d 67, 77, 960 P.2d 416 (1998) (quoting In re Disciplinary Proceeding Against Johnson, 118 Wn.2d 693, 701, 826 P.2d 186 (1992)).
¶70 Trejo admits he violated former Rules of Professional Conduct (RPC) 1.14(a) (2002), 1.14(b)(3) (2002), and 5.3(b) (1985).23 The main dispute revolves around the sanction Trejo must bear for these three violations. I believe the disciplinary board erred in determining Trejo’s mental state and the level of injury his violations caused. These errors resulted in the board’s imposing the wrong sanction. There is no evidence Trejo’s violations were done knowingly. More importantly, his violations caused “ ‘little or no’ injury”24 to his clients.25 Therefore Trejo’s presumptive sanction is properly admonition. In addition the majority fails to recognize Trejo’s restitution further mitigates his violations.
I. Presumptive sanction for violations
¶71 To determine the presumptive sanction for a violation, the court must determine the attorney’s mental state leading to the violation and level of injury caused by the violation. Am. Bar Ass’n, Standards for Imposing Lawyer Sanctions std. 3.0 (1991 & Supp. 1992) (Standards). Under the Standards a lawyer acts knowingly when he is consciously aware “of the nature or attendant circumstances of the conduct” and undertakes the conduct notwithstanding its unethical nature. Standards Definitions at 17. By contrast a lawyer acts negligently when he fails “to heed a substantial risk that circumstances exist or that a result will follow.” Id.
*737¶72 An ethics violation causes injury when it harms “a client, the public, the legal system, or the profession. . . . The level of injury can range from ‘serious’ injury to little or no’ injury.” Id.
Former RPC 1.14(b)(3) violation and presumptive sanction
¶73 Trejo admitted he violated former RPC 1.14(b)(3) by failing to keep the required records on his Interest on Lawyer’s Trust Account (IOLTA). But the majority improperly asserts Trejo knowingly violated former RPC 1.14(b)(3), apparently because he knew what records were required and he did not maintain them. Majority at 723-24. It also holds this violation injured Trejo’s clients. Id. at 724.
¶74 The majority’s analysis errs because there is no evidence suggesting Trejo knew his trust accounting records were insufficient. The majority relies on Trejo’s previous reprimand for failing to keep records. Id. at 723-24. However, following the reprimand Trejo changed his procedures and began keeping some trust accounting records, including a “hand written journal.” Finding of Fact 12. Although these accounting records were insufficient, there is no evidence Trejo knew this record keeping violated his professional duties. Because he was not aware his procedures were insufficient, he was merely negligent when he violated former RPC 1.14(b)(3).
¶75 More importantly, Trejo’s lack of trust account records caused “ ‘little or no’ ”26 harm to his clients. Trejo had only one client receiving funds from the trust account, and this client received every penny. There is no evidence the client suffered any deprivation based on the short delay in transmitting these funds.
¶76 The majority claims, “[t]he delay in payments constitutes an injury to a client.” Majority at 724. Although the majority makes this statement unabashedly, it fails to identify any actual harm this short delay caused the client. *738The only possible harm suffered is the client’s loss of interest on the funds, likely measured in pennies. This loss of pennies in interest must be the “harm” the majority seeks to punish.
¶77 That the majority would find the client’s loss of interest sufficient to deprive Trejo of his ability to practice law is curious. This court routinely confiscates interest earned by a client from funds held in an IOLTA account, and yet today we punish an attorney for doing that very thing (although much less so).27 Unlike the “harm” at issue here, in the aggregate the court’s total take is nearly $9 million a year.28 I find it not only unconscionable but hypocritical for the majority to punish Trejo for depriving a client of pennies in interest, when we deliberately, willfully, and intentionally confiscate millions of dollars in client funds from thousands of clients annually.
¶78 Since Trejo violated former RPC 1.14(b)(3) negligently, and caused at most de minimis harm to his clients, the presumptive sanction for this violation is admonishment.29
Former RPC 1.14(a) violation and presumptive sanction
¶[79 Trejo violated former RPC 1.14(a) when he deposited earned funds into his IOLTA account, thereby commingling personal and client funds. Although Trejo admitted to *739commingling client funds with his own,30 there is no evidence he did so knowingly. Nor was any client actually or potentially injured by this commingling.
180 Trejo did not knowingly commingle client funds with earned fees. As the Board recognized, whether nonrefundable retainers are earned fees or if the fee is unearned until the client consents to representation is unsettled. Assuming arguendo Trejo knew “he should not commingle client and personal funds,”31 nothing proves Trejo knew he was improperly commingling the funds he reasonably believed were unearned.
¶81 The majority claims Trejo’s inadvertent commingling of funds in his IOLTA account was potentially injurious because it “could result in a personal creditor satisfying a judgment against Trejo from the client trust account.” Majority at 726. A “£[potential injury’ ” is harm that would have resulted from the violation “but for some intervening factor or event.” Standards Definitions at 17.
¶82 However, the majority’s identification of this potential injury fails to meet this standard as the identified injury is nothing more than a hypothetical, inchoate risk that was never in danger of coming to fruition. There is no evidence that Trejo had any outstanding debts, nor is there any evidence Trejo had creditors seeking to satisfy a judgment from his assets. There was no “intervening factor or event” that prevented a creditor from attempting to attach the IOLTA account. Thus the potential injury identified by the majority is simply an unsupported hypothetical risk and not an actual “potential injury” justifying suspension.
¶83 Since Trejo’s commingling of funds was done negligently, and there was little or no injury caused by the *740violation, the presumptive sanction for this violation is also admonishment.32
Former RPC 5.3(b) violation and presumptive sanction
¶84 Lastly, Trejo violated former RPC 5.3(b) by failing to adequately supervise Alvarez, who embezzled funds from Trejo through his IOLTA account. There is no evidence Trejo knowingly failed to adequately supervise Alvarez, nor is there evidence that his clients were harmed by the lack of supervision. In fact, logic would dictate Trejo did not know his employee was stealing from him because he suffered the greatest harm: direct theft by an employee.
185 Trejo was negligent in supervising Alvarez. The crux of the majority’s assertion is that Trejo knew, and consciously disregarded, he had a duty to implement controls over Alvarez’s access to the trust account. However, the evidence does not support this assertion. The evidence supports only the inference that Trejo knew his “ethical duties regarding trust accounting could not be delegated to a nonlawyer assistant.” Majority at 727. But this does not mean an attorney cannot put a third party in charge of his trust account. As Trejo points out, most law firms delegate responsibility for trust fund accounting to a separate accounting department. It is not Trejo’s delegation of responsibility in this case that was improper, but his dishonest employee. Trejo cannot be punished again for trusting his employee who turned Trejo into a victim by stealing from | him.
186 Again, Trejo’s clients received all funds due; there I was no harm. The majority fails to address the harm thisl violation caused, but again the only possible harm is| measured in pennies.
*741¶87 Because Trejo’s violation of former RPC 5.3(b) was negligent and caused little or no harm, the presumptive sanction is, again, admonition.33
II. Mitigating factors
¶88 In addition to the mitigators found applicable by the majority, the restitution mitigator should also apply. Trejo voluntarily provided his client with thousands of dollars in free legal services in an effort to mitigate the short delay the client experienced in receiving his funds. This is more than mitigation; it is a generous good faith effort not merely to restore the loss but to restore client confidence in his integrity.
¶89 The majority refuses to give effect to this mitigator in part because the letter waiving his fees “did not include an apology and did not mention the delay in payments.” Id. at 732. It is unclear how the lack of apology counsels against this mitigating factor, as restitution was more than made. In addition, the majority finds it important that the waiver of fees was made after the commencement of disciplinary proceedings. Id. However, “[rjestitution which is made upon the lawyer’s own initiative should be considered as mitigating.” Standards std. 9.32 cmt. Since Trejo provided the valuable legal services without being required, this is mitigating and should be considered.
¶90 Trejo negligently violated his ethical duties; however his actions did not harm his clients, unlike the harm34 this court causes thousands of clients annually. We might be justified in suspending Trejo’s accounting license, but admonition is the appropriate sanction for violating his *742ethical duties as a lawyer. I refuse to join the majority’s suspension of Trejo’s license when his biggest flaw was misplaced trust in an employee who subsequently stole his money.
¶[91 I dissent.
J.M. Johnson, J., concurs with Sanders, J.
Ben Jonson, a tribute to Innocence, in Tryon Edwards, The New Dictionary of Thoughts: A Cyclopedia of Quotations 311 (C.N. Catrevas, Jonathan Edwards & Ralph Emerson Browns eds., Standard Book Co. rev. ed. 1964) (1891).
Although Trejo admitted to committing the violations, he did dispute some | facts underlying the allegations.
Am. Bar Ass’n, Standards for Imposing Lawyer Sanctions Definitions at 17 (19911 & Supp. 1992).
In fact Trejo was the only party to suffer harm here, as his employee was| stealing from him.
Standards Definitions at 17.
The income earned on a client’s funds in an IOLTA account is the property of | the client. Phillips v. Wash. Legal Found., 524 U.S. 156, 118 S. Ct. 1925, 141 L. Ed. 2d 174 (1998). As such, this court’s requirement in RPC 1.15A(i)(l) that these | funds be transmitted to the Legal Foundation of Washington is quite simply as I much a taking under article I, section 16 of the Washington State Constitution as it is under the Fifth Amendment to the United States Constitution. The taking is wrongful because the judiciary lacks the constitutional power of eminent domain, I that being a legislative not judicial power, whether or not just compensation is due. Eggleston v. Pierce County, 148 Wn.2d 760, 770 n.7, 64 P.3d 618 (2003).
Legal Found, of Wash., 2006 Annual Report to the Public: It’s Not Justice If It’sI Not Equal (2006) available at http.V/www.legalfoundation.org/sites/legalfoundatioii/| upload/filemanager/Inside-LFW/2006-Report-FINAL.pdf (last visited June 3, 2008).
Standards std. 4.14.
The hearing examiner found Trejo commingled funds 66 times. Finding of Fact 22. Trejo correctly challenges this finding, as the auditor improperly considered retainers paid by a third party, but without approval by the client, to be funds earned by Trejo. This is an improper approach, and because the auditor ailed to indicate how each of the 66 violations occurred, we cannot know how any violations actually occurred.
Majority at 725.
See Standards std. 4.14.
Standards std. 7.0.
I say we cause clients harm because we deprive them of their property right to the interest earned on their money. It is no answer to say that this interest [would not exceed the bank fees to set up a separate account since nothing other [than our own IOLTA rule prevents non-IOLTA accounts from being aggregated [into a single account — which is exactly the case with an aggregated single IOLTA •account. See RPC 1.15A(i)(l). This problem would not exist if the beneficial purposes to which the money is put were fully funded by the legislature from its teneral fund.