dissenting:
I dissent from the majority opinion as I believe it has completely destroyed any rational basis for determining when a disbarred attorney should be reinstated to the practice of law. All courts uniformly recognize that the disbarment of an attorney is based on the fact that he has committed an extremely serious offense. Moreover, it is uniformly held that in order for a disbarred attorney to regain his license he bears the heavy burden of showing that he has rehabilitated himself. We made these two points plain in our recent case of In re Brown, 166 W.Va —, 262 S.E.2d 444, 445-46 (1980):
*33“[I]t is incontestable that a disbarment results from the most serious ethical violations, and the courts have traditionally cast a heavy burden on the petitioning attorney to demonstrate his fitness for reinstatement. In re Reed, 341 So.2d 774 (Fla.1977); Lester v. Kentucky Bar Association, 532 S.W.2d 435 (Ky.1976); In re Braverman, 271 Md. 196, 316 A.2d 246 (1974); In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975); 7 Am.Jur.2d Attorney at Law § 72 (1963).” (Footnote omitted)
See also Annot. 70 A.L.R.2d 268, 297 (1960).
These two points are entirely ignored by the majority. Without citation to a single other jurisdiction, it substitutes as a standard a new rule that an attorney need only wait out the five year period by “behaving honorably” and the burden is then thrust upon the Ethics Committee “to present facts and circumstances which would lead to an inference of bad character or lack of fitness to practice law.” Syllabus Point 3, in part.
The reason for this new rule is obvious. It has been tailored to fit the circumstances of this case, since Mr. Smith has made no attempt to show that he has rehabilitated himself. During the five year period from the date of his disbarment until his petition for reinstatement, he did little other than comply with the mandatory terms of his federal probation. He made no effort toward some gainful employment or community involvement and conceded that in the last year or two he was only waiting to see if he would be reinstated. Even the majority could hardly claim that this position meets the burden of showing rehabilitation which courts uniformly place on petitioner. As a consequence it had to invent a new rule in order to reinstate Mr. Smith.
It is appalling that the majority would entirely ignore the recommendation of the Ethics Committee who heard the witnesses and made findings of fact in regard to Mr. Smith’s reinstatement. The Committee unanimously concluded that at the present time he should not be *34reinstated.1 Most courts have held that findings of the Legal Ethics Committee upon reinstatement hearings should be accorded considerable weight. Tardiff v. State Bar of California, 165 Cal.Rptr. 829, 612 P.2d 919 (1980); In re Wigoda, 177 Ill.2d 154, 395 N.E.2d 571 (1979); In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975); In the Matter of Freedman, 406 Mich. 256, 277 N.W.2d 635 (1979); Petition of Harrington, 134 Vt. 549, 367 A.2d 161 (1976). The rule has been stated in this fashion in In re Hiss, supra:
“In any disciplinary proceeding the findings and recommendations of the board, though not binding on this court, are entitled to great weight. See March v. Committee of Bar Examrs., 67 Cal.2d 718, 720, 63 Cal.Rptr. 399, 433 P.2d 191 (1967); In the Matter of Bennethum, 278 A.2d 831, 833 (Del.1971); Petition of Eddleman, 77 Wash.2d 42, 43 459 P.2d 387 (1969). Cf. In re Application of Strand, 259 Minn. 379, 381, 107 N.W.2d 518 (1961). The board has heard testimony and observed witnesses and, by virtue of this firsthand observation is better able than a reviewing court to judge the relative credibilities of witnesses and to assign weight to the evidence they give.” [368 Mass. at 461, 333 N.E.2d at 438 (footnote omitted)]
I find nothing in the report and findings of the Ethics Committee that leads me to conclude that it made any mistakes in analyzing the evidence or made any errors of law in applying the evidence to the settled legal principles that we announced in In re Brown, supra. It is difficult for me to believe that the Ethics Committee which is itself basically composed of lawyers is totally insensitive to the *35position of a disbarred attorney.2 As a matter of fact, much of the criticism leveled at the Bar by the public and press is that since its disciplinary proceedings are controlled largely by its own members there is a great tendency to be too lenient in disciplinary matters.3 Here the majority compounds the problem by not only substituting its judgment of the facts for that of the Ethics Committee’s, but also has totally warped the law by removing the burden of proving rehabilitation from the applicant and casting the responsibility for showing bad character on the Ethics Committee.
The majority obliterates the high ethical and moral standards that are demanded in the practice of law by the West Virginia Code of Professional Responsibility.4 For example, Disciplinary Rules 1-102 and 6-101 require:
“DR 1-102 Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule.
(2) Circumvent a Disciplinary Rule through actions of another.
(3) Engage in illegal conduct involving moral turpitude.
(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
*36“DR 6-101 Failing to Act Competently.
(A) A lawyer shall not:
(1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
(2) Handle a legal matter without preparation adequate in the circumstances.
(3) Neglect a legal matter entrusted to him.”
The majority ignores a concept that disciplinary proceedings cannot be analogized to a criminal punishment since the license to practice is a privilege, which can be withdrawn if the practitioner abandons the professional standards. We have consistently stated that an attorney disciplinary proceeding is neither a civil action nor a criminal proceeding because its primary purpose is “to preserve and protect courts of justice and the public from the official ministrations of persons unfit to practice.” In re Brown, 157 W.Va. 1, 7-8, 197 S.E.2d 814, 818 (1973), quoting 7 C.J.S. Attorney and Client, § 28. See also, Committee on Legal Ethics v. Pence, 161 W.Va. 240, 240 S.E.2d 668, 673 (1977); Syl. Pt. 2, Committee on Legal Ethics v. Graziani, 157 W.Va. 167, 200 S.E.2d 353 (1973), cert. denied, 416 U.S. 995, 40 L.Ed.2d 774, 94 S.Ct. 2410 (1974).
We, as well as other courts, have recognized that the courts have a duty to ensure that persons granted the right to practice law are appropriately qualified to carry out what is essentially a fiduciary duty to their clients, the courts, and the public administration of justice. In West Virginia State Bar v. Earley, 144 W.Va. 504, 531, 109 S.E.2d 420, 437 (1959), we quoted these principles from an earlier case:
“In the more recent proceeding of In re Eary, 134 W.Va., 204, 58 S.E.2d 647, the opinion contains this statement: ‘This Court has the inherent power to grant or refuse a license to practice law.’ The opinion also uses this language: ‘It is the duty of this Court to scrutinize carefully the qualifications of persons who seek to be admitted to practice *37before the courts of this State, in order that the public may be protected and the courts assisted in the discharge of the vital duties of the administration of law and the resolving of legal controversies. If this Court permits persons to enter the profession of the law who do not have the requisite moral qualifications, it would result in debasing the profession and would bring disrepute upon the administration of justice. Thereby, the confidence of the people in their courts would be destroyed. This we cannot permit.’ ”
Much the same thoughts were stated by the Kentucky Court in In re Stump, 272 Ky. 593, 114 S.W.2d 1094 (1938), in regard to the principles surrounding reinstatement for a disbarred attorney:
“The ultimate and decisive question is always whether the applicant is now of good moral character and is a fit and proper person to be reintrusted with the confidences and privileges of an attorney at law. This question has a broader significance than its purely personal aspect. From time immemorial lawyers have in a peculiar sense been regarded as officers of the court. It is a lawyer’s obligation to participate in upholding the integrity, dignity, and purity of the courts. He owes a definite responsibility to the public in the proper administration of justice. It is of utmost importance that the honor and integrity of the legal profession should be preserved and that the lives of its members be without reproach. The malpractice of one reflects dishonor not only upon his brethren, but upon the courts themselves, and creates among the people a distrust of the courts and the bar.” (272 Ky. at 598, 114 S.W.2d at 1097)
See also Matter of Raimondi, 285 Md. 607, 403 A.2d 1234 (1979), cert. denied, 444 U.S. 1033, 62 L.Ed.2d 669, 100 S.Ct. 705 (1980); Petition of Emmons, 330 Mich. 303, 47 N.W.2d 620 (1951); State v. Butterfield, 172 Neb. 645, 111 N.W.2d 543 (1961).
For the majority to cast aside these concepts and conclude that disbarment is exacting punishment and vengeance on the attorney perverts the entire disciplinary *38process. No court has adopted this view, and for sound reasons. Disbarment does not strip an attorney from earning a livelihood. It precludes him from the practice of the legal profession. There is little doubt that with a college degree and his legal training he is amply qualified for many positions in industry, marketing and business, without the necessity of considering something less than a “white collar” job.
The loss of the license to practice arises not because of some mystical concept that we exact “vengeance,” but on the very real and practical judgment that the attorney has failed to meet professional standards as a result of proven facts concerning his delinquent conduct. This concept is not peculiar to the legal profession but is well known to the medical profession as well as others.
For the majority to buttress its vengeance argument by citing a juvenile case, State ex reí. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980), demonstrates its failure to grasp the key principles involved. Juveniles who have committed acts of delinquency have by statute and our case interpretations been accorded leniency because the law recognizes that they are young and immature. It is because of their youth and immaturity that the law determines they should not be punished as adults. Furthermore, because of their youth, there exists a substantial possibility of rehabilitation. These principles bear little relationship to attorney disbarment where we are confronted with mature, highly-educated adults who have committed crimes involving moral turpitude.
I cannot blind myself, as does the majority, to the petitioner’s prior disciplinary record before this court, a factor which other courts have also considered. E. g. Committee on Professional Ethics v. Wilson, Iowa, 290 N.W.2d 17, 23 (1980); In re Riccardi, 80 Cal.App. 66, 74, 251 P. 650, 653 (1926).
In Committee on Legal Ethics v. Smith, 156 W.Va. 471, 194 S.E.2d 665 (1973), this same petitioner appealed the Ethics Committee’s recommendation that he be given a 30-day suspension or public reprimand for failing to return *39retainer money to an out-of-state client after petitioner neglected to take any action on the client’s claim. According to this statement in the opinion:
“[a]t no time during the period of time involved did the defendant take any action to prosecute the Lentz claim. He instituted no suit; he did not inform anyone connected with the Logan Coca Cola Bottling Company that he had been retained; he did not seek an accounting; he did not attempt to find any information on which to file a suit or to negotiate settlement.” (156 W.Va. at 473-74, 194 S.E.2d at 667)
After considering petitioner’s defense to the effect that he had bad health problems and was heavily involved in litigation in various courts as an attorney and as a criminal defendant, this Court declined to order suspension but did issue a public reprimand.
Finally, I am troubled by the majority’s blithe assumption that it knows better than the Ethics Committee what is best for attorneys. This Court sees only a small fraction of the disciplinary cases that are handled by that Committee, since it is only the serious penalties that are appealed to us. The Ethics Committee has not been draconian in its approach to disciplinary cases. The Bar By-Laws provide a humane treatment for those attorneys who commit ethical violations while under the stress of mental or emotional disability.5 Anyone familiar with the practice of law recognizes that its demands for dedication and service can impose severe emotional burdens on an attorney. Where misconduct has resulted from this situation, the Ethics Committee, upon independent verification by physicians or psychiatrists of the legitimacy of the emotional problems, has not pressed for total disbarment but rather a suspension until the attorney regains his health.
To my knowledge, we have had only one other reinstatement case where we have ignored the recommendations of the State Bar Ethics Committee. In re Daniel, *40153 W.Va. 839, 173 S.E.2d 153 (1970). We overrode the recommendations and reinstated Mr. Daniel to the practice of law only to discover that he then committed disciplinary infractions after reinstatement and had to be suspended from the practice again. Committee on Legal Ethics v. Daniel, W.Va., 235 S.E.2d 369 (1977).
I do not maintain that the petitioner, Mr. Smith, is never entitled to be reinstated. I do maintain that on the present record he has not carried his burden of showing rehabilitation. His failure to establish after disbarment any meaningful social or work pattern in his community, coupled with the gravity of his initial offense, which was a crime against the election process, and his prior disciplinary record leads me to conclude that the Ethics Committee is correct.
The majority does a disservice to the legal profession, the public at large, and to the courts by its opinion. I predict we will live to regret this decision and at some point in the future will have to overrule it.
I am authorized to state that McGRAW, J., joins me in this dissent.
The majority states that “the Ethics Committee’s objection to reinstatement was proforma." Op. at 772.1 find this incredible in light of the final paragraph of the Ethics Committee’s Report:
“The Committee believes that in view of the nature of the offense for which Smith was convicted, the position of prominence and trust which he occupied at the time of the commission of that offense, his reinstatement would be harmful to the administration of justice, and would lower confidence in the integrity of the courts, and would be damaging to the efforts of the bar and its efforts to police the profession and to the whole judicial system and would be incompatible with the public interest and welfare.”
As a result of an amendment to the State Bar By Laws adopted April 3, 1979, three nonlawyers were appointed to the nine-member Ethics Committee over a three-year period. By-Laws of the West Virginia State Bar, Article VI, Section 5.
See, e.g., Woolfram, Barriers to Effective Public Participation in Regulation of the Legal Profession, 62 Minn.L.Rev. 619 (1978); see also Waltz, The Unpopularity of Lawyers in America, 25 Clev.St.L.Rev. 143 (1976); Round, The Lay Tradition As To The Lawyer, 12 Mich.L.Rev. 627 (1914).
The West Virginia Code of Professional Responsibility is substantially the same as the American Bar Association’s Model Code, which has been adopted in virtually all states.
By Laws of The West Virginia State Bar, Article VI, Section 26.