Matter of Sommers

CLIFFORD, Justice,

dissenting.

I agree with the Court that although respondent’s conduct in respect of the Gallone, Jazwinski, Berkey, Dispoto, Conway, and Guido matters constituted serious ethical infractions, suspension for a period not longer than the time running from the date of temporary suspension, namely, March 1, 1985, is sufficient discipline. The issue then becomes whether a knowing misappropriation in the Gener matter has been established, as the Court concludes it has, by clear and convincing evidence. I think not.

Did respondent intend to appropriate client funds to his own use, knowing that they were client funds and that he was not entitled to them? I would have to acknowledge that on this record one might very well determine that he did. On the face of the printed page respondent’s explanation is not exactly overwhelming: “At the time I had disbursed the funds to myself I believed that I was owed that money and I still believe I was owed that money. * * * I certainly didn’t intend that [$]750 was going to be my payment for a fully contested divorce that would include two days.” But his denial is enough when one keeps in mind the other distractions in respondent’s professional existence and personal circumstances—both a shambles—to bring me up short of a conclusion that respondent’s knowing misappropriation has been established by clear and convincing proof. Maybe the explanation does not inspire in this observer a sense of respondent’s professional distinction, but it does leave an impression of credibility.

We are trying to divine respondent’s state of mind: what did he “know” and what did he “intend”? His transgression must be established by clear and convincing evidence. And contrary to the usual function of an appellate court, in which we sit to *225determine whether there is sufficient evidence in the record to support a lower court’s conclusions and in which we ordinarily defer to the factfinder’s appraisal of credibility, we are obliged in disciplinary proceedings to make our own independent conclusions on all disputed factual issues, including questions of credibility. (The exercise is, incidentally, therapeutic, a bit of an eye-opener, a reminder that in that respect, at least, appellate judges generally have the less uncomfortable, even easier, task than our colleagues on the trial bench, who have to make “credibility” calls every day.) Ultimately, then, I must fall back on my own appraisal of—almost visceral reaction to—respondent’s denial.

Were I engaged in the conventional appellate-review function, I might very well agree with the Court’s result. Respondent surely did not do right by Ms. Gener. But when, in the context of these proceedings, this forlorn, luckless, disorganized, hapless lawyer tells me that he did not knowingly take somebody else’s funds, then no matter how thin his proffered justification may be when viewed from the rational perspective of more “conventional” lawyers, I cannot conclude that the contrary proposition has been established by clear and convincing proof. I am reluctant to admit, as I must, that the very same evidence involving a different respondent might bring me to the opposite result—reluctant, because that kind of ad hominem basis for a determination does not do much for stability and consistency in our disciplinary adjudications. What can I say? I believe this respondent. I may not believe the next one. Factfinders—trial judges and juries—make those kinds of appraisals every day.

I would suspend for the period of temporary suspension, and reinstate only on the condition of a proctorship arrangement to be approved by the Office of Attorney Ethics.

For disbarment—Chief Justice WILENTZ and Justices HANDLER, POLLOCK and GARIBALDI—4.

For suspension—Justices CLIFFORD, O’HERN and STEIN—3.

*226ORDER

It is ORDERED that CHARLES W. SOMMERS of HACKENSACK be disbarred and that his name be stricken from the roll of attorneys of this State, effective immediately; and it is further

ORDERED that CHARLES W. SOMMERS, JR. be and hereby is permanently restrained and enjoined from practicing law; and it is further

ORDERED that respondent comply with Administrative Guideline No. 23 of the Office of Attorney Ethics dealing with disbarred attorneys; and it is further

ORDERED that respondent reimburse the Ethics Financial Committee for appropriate administrative costs.