dissenting:
Because I disagree strongly with two central points in the majority opinion, I dissent from the disposition of this disciplinary proceeding.
There is no question, and the majority acknowledges, that the respondent, Thomas Mullins, was guilty of professional misconduct. He clearly neglected legal matters entrusted to him in violation of Canon 6 of the Code of Professional Responsibility, DR 6-101 (A)(3). By allowing the statute of limitations to run and bar his client’s personal injury action, without justification and with repeated entreaties by his client that he take action, the respondent was guilty of negligent professional malpractice and suspension, annulment, or other appropriate sanction is mandated. See, Article VI, §25 of the ByLaws of The West Virginia State Bar.
The sanction applied by the majority — an indefinite suspension with the right of immediate reinstatement— is based upon the conclusion that the respondent was suffering from debilitating emotional problems during the period of the challenged misconduct. The fact that an attorney suffered illness or emotional disturbance cannot excuse a prolonged failure to attend to his client’s business. Committee on Legal Ethics v. Smith, W. Va., 194 S.E.2d 665 (1973). Mental incapacity or disability is no defense in a disciplinary action because the object of such a proceeding is to protect the public and the prospective clients of the attorney rather than to impose punishment. See, Comment, 69 W. Va. L. Rev. 341 *657(1967). Factors bearing on the physical and emotional health of an attorney may be considered in mitigation of any sanction to be applied as a result of disciplinary proceedings. Committee on Legal Ethics v. Smith, supra.
The majority’s deference to the foregoing principles belies the fact that there is absolutely no evidence in the record before this Court upon which the rules can be applied. The record is totally silent with regard to the presence or absence of debilitating emotional problems on the part of the respondent.
In his appearance before this Court in response to the petition ~of~the Legal Ethics Committee, the respondent exhibited an apparent attitude of deep resignation. In response to questioning by members of the Court during this appearance, Mullins reluctantly acquiesced in a characterization of his emotional condition as depression. Based on this exchange, the majority has concluded as a matter of fact that Mullins “had been undergoing serious tribulations in his personal life with emotional consequences of grave concern.” I reject this finding and our ability to make it. We are neither psychiatrists nor seers, but judges. Regardless of the degree to which we, as men, trust our intuitive senses in our personal affairs, we are bound to reject speculation and conjecture in our role as adjudicators. In my opinion, the proper disposition of this case would have been to remand it to the Legal Ethics Committee for further investigation of the emotional condition of the respondent at the time of the misconduct and the subsequent investigation. Instead, the majority has chosen to denounce the Legal Ethics Committee for its “inattention to mitigating circumstances,” circumstances which were not brought to the attention of the Committee during its investigation because of the respondent’s total failure to cooperate. I believe the criticism to be unwarranted and the remedy applied to be inappropriate.
The second point of disagreement which I have with the majority opinion centers around its holding that an attorney who is the object of a disciplinary inquiry has *658an “absolute right” to refuse to cooperate in any way with the State Bar or its Ethics Committee. As the majority has acknowledged, this holding is directly contrary to the position taken in other jurisdictions. In view of the high duty of the profession, every lawyer has the obligation, in the absence of the assertion of the Fifth Amendment right against self-incrimination, Sternberg v. State Bar of Michigan, 384 Mich. 588, 185 N.W.2d 395 (1971), to provide all information relevant to an inquiry of his professional conduct. In addition to the cases cited in the majority opinion, see, Matter of Andrews, 378 N.Y.S.2d 408 (App. Div. 1976); In Re Birrell, 215 N.Y.S.2d 293 (App. Div. 1961); In Re Cohen, 7 N.Y.2d 488, 199 N.Y.S.2d 658 (1960); In Re Young, 316 S.W.2d 855 (Ky. 1958).
I fear that the majority decision gives license to professional misconduct in violation of the rules of this Court, the Constitution and By-Laws of the West Virginia State Bar and the Canons of Professional Responsibility in several respects. First, inasmuch as the West Virginia State Bar is an agency of this Court, Art. I, Constitution of the West Virginia State Bar, contumacious conduct directed towards that body is tantamount to contempt of this Court. Further, members of the legal profession have a mandatory duty to uphold the standards of conduct applicable to the profession and to “act diligently and vigilantly in the investigation and prosecution of violation of those standards.” Art. VI, §1, ByLaws of the W. Va. State Bar. See also Art. VI, §9, ByLaws of the W. Va. State Bar, and Canon 1, DR 1-103, Code of Professional Responsibility.
Disciplinary Rule 1-102 of Canon 1 of the Code of Professional Responsibility specifically provides:
“A lawyer shall not”
(5) Engage in conduct that is prejudicial to the administration of justice. (6) Engage in any other *659conduct that adversely reflects on his fitness to practice law.”
I firmly believe that an attorney who deliberately and wilfully disregards the legitimate inquiries of the Ethics Committee acts in violation of the quoted disciplinary rule.
Finally, it is my opinion that an attorney acts in flagrant disregard for his ethical responsibility to avoid the appearance of professional impropriety when he chooses to ignore or dismiss as troublesome or unworthy of his attention, the proper processes of the agency established by this Court to regulate the legal profession.
As I have noted above, any emotional condition of the respondent in this case could be considered as a factor in mitigation of his refusal to cooperate with the Ethics Committee. This consideration lends even greater support to what I believe to be the proper disposition of this case, a remand for further development of the probative facts relating to the respondent’s emotional condition.