I am not in accord with the majority and therefore must dissent. In my view the discipline imposed is entirely too severe.
Respondent was admitted to practice in this State in December, 1946. In this disciplinary proceeding, a Referee has found that between February 29, 1952 and March 25, 1954 respondent *12applied to Ms own use funds of clients who have been fully reimbursed and have accepted the explanations of respondent.
While it is true that the charges represent derelictions that cannot be overlooked, there are, however, mitigating circumstances. At the time of the acts and for a long period prior thereto, respondent was faced with the responsibility and care of his aged and serious ailing parents, and his conduct should be viewed in the light of the attending stress, financial and emotional. I am inclined to give weight to the extenuating circumstances. (See Matter of Levin, 9 A D 2d 532; Matter of Strahl, 13 A D 2d 446.)
The charges have been pending for approximately six years. During that period respondent has risen to a position of trust and confidence while bearing the impact of these proceedings.
The transgressions charged to respondent are of an isolated type that would indicate little likelihood of recurrence. A proper regard for the protection of the public would indicate that there is little hazard in the risk of future misconduct on the part of respondent. The object of disciplinary proceedings is, of course, the protection of the public and the maintenance of orderly high standards among practitioners. Disciplinary action is merely a means used in the accomplishment of this end. Where a record discloses that by his own efforts respondent has brought himself to the point of maintaining himself professionally at the desired level of standards, where his acts of misconduct have done no serious injury to others and where there has been full reparation, discipline, particularly drastic and severe discipline, serves no purpose and tends to become retaliatory rather than protective.
I am aware that discipline as a deterrent to others is wholly justifiable, but in such cases there must be a careful balancing of the benefits to others against the harm to the individual. While we must not lose sight of the fact that the justification of all discipline is the protection of society, rehabilitation is in the long run the most hopeful approach thereto. We should demonstrate an understanding of individualized treatment which means that discipline should take into effect all the factors bearing on the offender’s private and professional life. It is important that the offender himself understands the basis for the imposition of discipline. Furthermore, what appears to the offender to be unequal discipline hinders his adjustment and ’ serves no useful purpose—bearing in mind the Aristotelian admonition: “ There can be no greater injustice than to treat unequal things equally.”
*13TTlt.imflt.ftly, no one can be improved except by himself, and the degree of individual responsibility assumed by the offender will be decisive. I am opposed in principle to the enunciation of and compulsory adherence to any rule which firmly establishes the degree of discipline in all cases involving any particular type of infraction. As is so capably pointed out in the majority opinion, this court has the power to make ameliorative distinctions in the administration of disciplinary action. This respondent has shown by his own conduct his capacity to completely rehabilitate himself and has discharged his duties to the profession, the community, himself and his family in a highly satisfactory manner. This should be sufficient to reasonably induce this court to make the ameliorative distinction which I believe is required in the administration of discipline in this proceeding. Furthermore, I believe that a spirit of mercy should attend matters of this type, especially where the respondent has a good reputation for integrity. (See Matter of Rothbard, 225 App. Div. 266; 237 App. Div. 846.)
For the reasons stated above, I dissent and vote to confirm the report of the Referee but feel that suspension should be the only discipline meted out in this proceeding. Such suspension, with leave to apply for reinstatement at the end of the suspension period, would well serve the ends of justice and protect the public. (See Matter of Axtell, 229 App. Div. 323, affd. 257 N. Y. 210; 235 App. Div. 350.)
Breitel, J. P., Stevens, Eager and Steuer concur in Per Curiam opinion; McNally, J., dissents in opinion.
Respondent disbarred.