(dissenting) — I agree with the majority that a bipolar disorder may be an extraordinary mitigating circumstance to be considered when the record supports it as an excuse or explanation. This record does not support that conclusion.
The hearing officer recommended disbarment based upon the following finding of fact:
Despite his illness there is no causal connection between it and the impropriety of his conduct in borrowing money from his clients and wrongfully appropriating his client's money from his trust account for his own use. Despite the illness, the respondent was fully aware of what he was doing.
Finding of fact 7.
Thus the hearing officer did not agree with the conclusions drawn by the majority from the same record.
Eleven members of the Disciplinary Board do not agree with the majority. They changed the above finding of the hearing officer to the following:
Although there is evidence that Mr. McLendon's behavior was a manifestation of the manic episode of his illness, the record does not support the proposition that he was not aware of what he was doing.
Order of the Disciplinary Board, at 1-2.
Ten members of the Disciplinary Board do not agree with the majority because they found disbarment to be appropriate. Of the 13 persons who have reviewed this matter, only 2 agree with the majority. A thorough review of the record reveals why.
*777The essential question is whether the testimony and documents demonstrate that McLendon's felony conviction for theft from his clients, his conversion of $90,305.78 clients' trust funds and his improper loans of $1,127,859 are all explained and excused by his bipolar disorder.
A carefiil analysis of the record supports fidly the findings of the hearing officer and the Disciplinary Board. The improper loans from clients began in May 1982. They continued until December 1986. McLendon stole trust funds from six clients, including two minors, from June 1986 to April 1987. In 1985 McLendon stipulated to ethical violations, and agreed to make restitution; he still owes more than $37,000.
The majority finds that these repeated egregious acts of misconduct, over a period of 5 years, can all be excused by his bipolar disorder.
Therefore, the medical testimony must be examined. The majority quotes Dr. Gipstein. Majority, at 766. Dr. Gipstein saw McLendon six times in 1978, 8 years before the trust account violations and almost 4 years before the improper loans. His diagnosis was severe depression. He found no symptoms of mania. Specifically, he said: "So you couldn't say from what I have given you there that he had a bipolar illness." Deposition of Gipstein, at 14, 41. Bearing in mind that Dr. Gipstein did not diagnose bipolar any time he saw McLendon, his generalized statements about the disorder are of little help. He did, however, explain impaired judgment, upon which the majority builds its whole case. He said: "Well, a person makes decisions that rational people around would say are foolish, foolhardy. A person does not recognize the consequences of those decisions or denies them." Deposition of Gipstein, at 25.
There was no medical testimony concerning the period from 1978 to 1985. In June 1985 McLendon consulted a psychiatrist, Dr. Keller, whose care extended to April 1987. This covers the period when all the trust account violations occurred and when two of the improper loans were made. It is critical to note that at this highly important stage, Dr. *778Keller did not diagnose a bipolar disorder. The 1985 diagnosis was "suffering from an acute adjustment disorder with depressive features." Exhibit 22. Dr. Keller was not seen for more than a year, when the diagnosis was changed to major depression with obsessional personality pattern. Exhibit 22. Only when these proceedings were underway did Dr. Keller, and based upon information from the then attending psychiatrist, retroactively, express a belief that McLendon was suffering from a bipolar disorder. Reliance upon Dr. Keller's testimony for this crucial time period is highly suspect because his testimony came only in a PA-page affidavit, admitted without objection.
The majority relies upon the testimony of Dr. Leggett, a psychiatrist, who saw McLendon only after all the defalcations had occurred. A close examination of his several relevant answers shows that his generalizations do not support the conclusions drawn by the majority. He testified:
Q: Doctor, a person with a bipolar disorder that's in the manic stage, so is their judgment impaired? For instance, does the manic state have anything to do with their ability to form an intent, does it have anything to do with their ability to know what they are doing, be aware of what they are doing?
A: Many times a person in a manic state has no indication what they're doing is beyond the scope of reasonable behavior. They have very poor insight. They don't understand what is going on with their illness, and they see their behavior as being very normal when everyone else can see it as being very abnormal. I am not sure I answered your question. I forgot your original question.
Q: My original question, I am trying to figure out if we have a person suffering from a bipolar disorder that would be in a manic stage, how that would affect their mental state, their ability to form an intent or the ability to know that they acted and be aware of the consequences?
A: It would be severely impaired.
Transcript, at 150-51.
the hearing officer: Just explain briefly how a person who suffers from manic depressive disorder, because he has that disorder, would mishandle his client's funds.
the witness: All I can tell you, Your Honor, I have seen a lot of cases of bipolar disorders, and people who have very poorly managed funds.. I have a recollection of a farmer I saw who *779was 60 years old who sold all his cattle, was building an empire, very stable person ordinarily but went into a manic episode and was into hock to a quarter of a million dollars. After he was treated, he was in disbelief of that, also, couldn't do that. A person who is manic, they show very poor judgment. They make decisions reíd quickly based upon grandiose ideations. Everything seems to make sense to them, but they are totally out of touch with reality during manic episodes.
Transcript, at 194-95.
the hearing officer: But a person who is in a depressive state does not mishandle his client's money.
the witness: A person in a depressive state usually is very lethargic and is more indecisive, and they may make decisions or not make decisions, not do anything, so a lot of their problems they have in the depressive phase is maybe omission. They don't do certain things. They neglect certain things. They don't show up for certain things. They do sloppy work. They do incomplete work. They procrastinate. They avoid. This is what, in my experience, most of the problems that a bipolar depressed has experienced. So therefore, they make poor decisions, but it's in a different sort of way.
Transcript, at 196-97.
Q: What Mr. McLendon did was to steal thousands of dollars from minor children, to steal money from the estates that was to be for the benefit of children, to steal money from his clients after having been a lawyer for 20 to 30 years. I didn't quite hear in your descriptions of these farmers or these fellows something quite on that level.
MR. oreskovich: I am going to object to the form of the question.
the hearing officer: Overruled.
A: I think that these people who I described, if they had access to anything, they would have done the same thing. I don't think Mr. McLendon's behavior in the manic state was unlike many other people I have seen in the manic state. I know this is hard to reconcile with a person themselves in terms of why would a person do this and why do you blame it on mental disorder, but I can tell you it happens. It happens a lot of times.
I have had, like I say, a person who has bought something and sold it to someone else, and that is fraud, and that's antisocial activities, and it's against the law. And many times the legal system brings them into me [sic] to begin with because they do commit crimes, they do commit things that are fraudulent that are theft, they take things and sell them and say, I will be able to pay it back because
*780I will make millions of dollars over here, so they kind of rationalize over here how they are going to do these things. It happens.
If a person has access to these things, of course, they are more likely to be able to use these things. They will spend their own money until it runs out, and they will get investors, try to talk banks into things, try to talk other people into things. They will sell things that don't belong to them because they will always say, I am going to be able to pay them back with lots of money and more because I am going to make millions on these ventures.
So their thinking is that what they are doing is not illegal because they are going to be able to make millions off of them and be able to pay it back and be able to service these people. So they are rationalizing all the time they are doing it in a very grandiose sort of way, is what they are doing.
Transcript, at 197-99.
Thus, there is a fundamental and glaring omission from the testimony. No one ever testified that McLendon did not recognize that his conduct violated, clearly and repeatedly, the most basic ethical standards of lawyer conduct. Even the most favorable testimony from the most favorable witness, Dr. Leggett, skirts this critical point. His catchall phrase, emphasized by the majority, is "severely impaired". But bear in mind what he was asked: "[H]ow would that effect [sic] their mental state, their ability to form an intent or the ability to know that they acted and be aware of the consequences?" Transcript, at 150-51. This vague exchange does not answer the critical question whether McLendon knew he should not steal clients' money or borrow in clear violation of the rules. Leggett expanded his answers with references to "very poorly managed funds", "they show very poor judgment", "[s]o they are rationalizing all the time they are doing it in a very grapdiose way, is what they are doing." Transcript, at 197-98. An explanation, yes; an excuse, no.
More important, perhaps, than a minute analysis of the medical testimony are the facts never mentioned by the majority. From 1982 to January 1986, McLendon took the responsibility for all major personal injury cases in his office. Transcript, at 251-54. In addition, he engaged in numerous transactions apart from his law practice. Perhaps there were *781foolhardy, even bizarre transactions during this time, but he sought out and engaged in those transactions. There is no hint or claim of incompetency regarding those ventures. There is no hint or claim that his judgment was so impaired that any of his business transactions, outside the practice of law, were tainted with fraud or theft.
The McLendon files evidence his participation in all the loan activities. Most of the disbursement checks are signed by him. Those promissory notes which were in evidence were signed by him. What is more, McLendon admits these improper borrowings and had an independent recollection of all the loan transactions, except one. Transcript, at 272-74. He gave no explanation or excuse for these highly improper borrowings from clients to the tune of $1,127,859.
The real issue here is what should be the sanction for these admittedly serious, repetitive violations of the most basic standards of lawyer conduct. American Bar Ass'n, Standards for Imposing Lawyer Sanctions, Std. 9.22 (1986) fists 10 aggravating factors. It is not surprising that these 17 separate incidents, over nearly 5 years, with 11 counts and the violation of 10 separate rules result in the existence of 7 of the 10 possible aggravating factors. Adding the felony conviction results in a most distressing pattern of abuse of trust.
In summary, I find it difficult to believe that McLendon could practice law, try and settle major cases, and otherwise function as he did over a period of years, but become impaired beyond responsibility only when dealing with clients' funds. His plea to first degree theft should not be minimized as does the majority. The crime charged involves intent. RCW 9A.56.020(1)(a). He does not deny intent to steal. He said: "I accept full responsibility. . . [but] wrong medication for acute depression . . . rendered me incapable of proper rationalization. I took unauthorized control over my clients [sic] funds." (Italics mine.) That is hardly an equivocal plea.
Finally, McLendon is on probation as a felon for 10 years. In In re McGrath, 98 Wn.2d 337, 345, 655 P.2d 232 (1982), we said: "[W]e find it repugnant to the basic standards of *782our legal profession to allow one who is serving a 10-year probation sentence for a felony conviction, for an act involving moral turpitude, to practice law and to represent clients in the courts of this state." The majority dismisses McGrath as not "persuasive". Majority, at 774. It should admit that it is overruling McGrath since it does do so.
I would uphold the decision of the hearing officer and uphold the considered judgment of 10 of the 12 members of the Disciplinary Board, and disbar. On February 27, 1990, we summarily suspended McLendon because of his felony conviction. With credit for that time, he could petition for reinstatement in early 1995. RLD 9.1(a). At that time, the bar and this court would know the exact status of his restitution and payment of costs and expenses. RLD 9.1(b). This is much more definitive and proper than the majority's nebulous direction that "proper arrangements for repayment be provided". Majority, at 775. Given the fact that he stipulated to restitution in 1985, and only made one payment in 1986, it appears highly desirable that we wait until 1995 to learn what he has done about the $90,305.78 that he stole from clients, and learn about the status of claims of $131,206.99 against the client security fund, as well as unpaid loans from clients.
Andersen, C.J., and Durham, J., concur with Brachten-BACH, J.