dissenting:
I vehemently dissent to the majority opinion remanding this case to the Committee on Legal Ethics of the West Virginia State Bar for a hearing to permit the respondent to make an evidentiary record and present any mitigating factors which would allow the Committee to make a finding different from their recommended decision to annul Boettner’s license to practice law.
After reading the majority opinion, I wonder if the legal profession will ever climb in the eyes of the general public to a position other than that just ahead of a used car salesman. It seems that for every step forward, we take two steps back. In these days of increased awareness of ethics, both professional and personal, one would expect this Court to tighten the ethical standards applicable to members of the legal profession. Instead, the majority loosens the standards to allow erring attorneys to explain away their misdeeds. Who better than lawyers can master that hurdle? Should the standards for attorneys be any less than the standards established for Caesar’s wife?
West Virginia Code § 30-2-6 (1986) provides that, upon presentation of proof that the attorney in question has been convicted of a felony or any other crime involving moral turpitude, a court shall annul said attorney’s license to practice law. In In the Matter of Mann, 151 W.Va. 644, 154 S.E.2d 860 (1967), this Court ruled on facts very similar to this case and annulled Fletcher W. Mann’s license to practice law. In so holding, the Court stated:
The present case must be distinguished from other cases of a similar nature in which courts of other jurisdictions are authorized to consider extenuating circumstances in determining proper disciplinary action against attorneys even in cases involving moral turpitude.... ******
[W]e are of the opinion ... that the conviction of Fletcher W. Mann is one which involves moral turpitude [failure to pay income tax].
Id. 151 W.Va. at 648, 154 S.E.2d at 865, 866.
The rules that govern the practice of law in this area are presumed to be known by all licensed practitioners. Since the Mann decision in 1967 at least, these rules have been black and white and easily understood. However, the majority now turns the black and white to gray. By requiring the Legal Ethics Committee to hold a mitigation hearing, the majority opinion sends a message to the Committee that, even though they applied the law correctly, they may have been too harsh.1
In reaching their conclusion, the majority opinion explains that they had available to them a transcript of Boettner’s guilty plea agreement hearing and his trial testimony in the federal case of United States v. Tonkovich, Criminal No. 2:89-00104. The Legal Ethics Committee also had these transcripts before them when they recommended that Boettner’s license be annulled. After reviewing the transcripts, I cannot imagine what prompted the majority to reverse the well-reasoned principle set forth in Mann and require the Legal Ethics Committee to make a subjective decision as to whether there were extenuating circumstances at the time of the attorney’s violation.
The transcripts reveal some interesting facts, some of which are well-known, while others were ignored by the majority. While elected to the Senate of West Virginia and serving as its Majority Leader, Boettner filed as a candidate for the office of Attorney General in the 1984 Democratic Primary. Boettner chose to seek this *142office in spite of the fact that, by his own admission, his financial situation for funding such a campaign was desperate. To assist him with this campaign, Boettner asked Sam D’Annunzio, a well-known legislative lobbyist who was also a director of the Lowndes Bank in Clarksburg, West Virginia, to help him obtain a $25,000 campaign loan from that bank. The lobbyist arranged for the loan, and Boettner executed a promissory note payable in ninety days. Boettner had no way to repay this debt unless he was victorious in the May, 1984, Primary. He lost his bid to be nominated for Attorney General, and after ninety days the bank began writing Boettner and threatening legal action if the note was not paid. It is clear from the transcript that Boettner’s failure to pay the note and interest became a real problem for the bank, because bank regulators were questioning the note. Thus, in 1985 the lobbyist made a $2,700 interest payment on the note. Boettner did not claim this payment as a campaign contribution, nor did he report it as income on his federal tax return.
Further, a $500 check made payable to Boettner from Jack Catalano was apparently sent to the lobbyist, who in turn gave it to the bank, which then applied it to the monies due on the $25,000 loan. Boettner states that he did not know of this payment until a later date, and it was not reported as a campaign contribution nor shown as income on Boettner's 1985 income tax return. In August, 1985, the lobbyist made a second interest payment of $800 on the note, when Boettner again was unable to make any payment. Again, this $800 was not reported as a campaign contribution nor shown on Boettner’s 1985 income tax return.
Still in desperate financial condition, Bo-ettner sought re-election to the Senate of West Virginia in the spring of 1986 and found himself running against a candidate who had the ability to raise and spend money to defeat him. Thus, Boettner again asked his friends for help. Senator Anthony Yanero sent him $3,000, which Boettner did not report as a campaign contribution. The $3,000 contribution violated election laws, as do all single contributions in excess of $1,000. Therefore, Boettner treated it as a loan from himself to the campaign. Boettner repaid himself for this “loan” and then repaid Senator Yanero. The lobbyist, Sam D’Annunzio, also sent Boettner $3,000 through campaign workers and, again, none of this money was reported as a campaign contribution. Interestingly enough, Boettner was a member of the West Virginia Legislature when the campaign reporting laws were enacted.
To further complicate matters, in December, 1986, Boettner decided to acquire a house on Kanawha Boulevard in Charleston for the price of $80,000. Magnet Bank agreed to finance the purchase. However, Boettner realized that he could not make monthly payments on both the home mortgage loan and the note at Lowndes Bank. Thus, Boettner contacted his friend, State Senator Larry Tucker, a Vice President of Farmers & Merchants Bank in Summers-ville, to see if he could help him with the purchase of the house and transfer his campaign loan at Lowndes Bank to Senator Tucker’s bank. Senator Tucker referred the matter to Sam D’Annunzio, who had a corporation which made real estate purchases. The lobbyist’s corporation then purchased the house after arranging to have the appraisal increased to $100,000 or $110,000 and after financing was approved at Senator Tucker’s bank. The mortgage loan was in the amount of $93,000 and apparently included the $13,000 remaining on Boettner’s original $25,000 campaign loan from Lowndes Bank. As previously noted, the amount of Boettner’s debt had been reduced by payments from his political fundraisers. The lobbyist purchased the house, paid the balance due on the note at the Lowndes Bank, and that amount was added to the mortgage payable at Senator Tucker’s bank. Now, Boettner had no house debt or campaign debt.
Boettner moved into the house as a renter until the print media revealed the facts surrounding the purchase and assumption of the campaign loan. Boettner then moved out, claiming he did not realize the lobbyist had financed the house and loan. *143Boettner signed a note at Senator Tucker’s bank for the balance of the campaign note.2
Boettner learned of a federal investigation involving his campaign loan at Lowndes Bank when the lobbyist informed him that certain records involving the loan had been subpoenaed and that he should write the bank to obtain copies of all the records subpoenaed by the federal government. Boettner states that he subsequently learned that the lobbyist and Mr. Catala-no had helped make payments on his campaign loan and that, at the request of the lobbyist, Senator Tucker had included the balance due on the campaign debt in the mortgage loan.
Subpoenaed in June, 1989, to appear before the federal grand jury investigating Senator Tucker, Boettner exercised his Fifth Amendment right not to testify and was taken before a federal judge and granted immunity so that he would testify. This immunity was granted before Boett-ner entered into a plea agreement. Boett-ner readily admitted that the reason for his willingness to enter into a plea bargain agreement with the federal government was the possibility that he was going to be charged with other criminal activity.
While testifying at Senator Tonkovich’s trial, Boettner was questioned about his failure to report certain campaign contributions, and responded as follows:
Q. So is it fair to say in 1986 you made a deliberate decision to violate the criminal law?
A. I made a decision not to report it [the contributions from Mr. D’Annun-zio, Mr. Catalano, and Senator Yane-ro].
Q. Which you knew would be a violation of a criminal law?
A. I knew that was required and I didn’t do it, yes, sir.
Rule 8.4 of the Rules of Professional Conduct, upon which the Committee initially based its disciplinary proceeding, states as follows:
Rule 8.4 Misconduct It is professional misconduct for a lawyer to:
* * * * * *
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects....
In light of Boettner’s own sworn testimony, which I quoted above, I am left to wonder what remains for the Ethics Committee to consider at a so-called mitigation hearing. "What type of evidence could Bo-ettner possibly produce at this point which would justify mitigating the punishment already recommended by the Legal Ethics Committee? I assume the majority wants the Committee to listen to the matters contained in the briefs which were filed after the Committee’s decision and submission of the case to this Court for alternative types of punishment.
When Boettner learned of the majority opinion in this case, he was quoted by the electronic media as saying, “It is a great victory.” I would have to agree. Mr. Bo-ettner must feel like he is holding the winning ticket at the race track.
Boettner not only received immunity from further criminal prosecution for matters which had been under investigation by the federal prosecutor and the Kanawha County prosecutor in exchange for testimony, but also was given little more than a slap on the wrist in Federal District Court —probation, no fine, and public service. Then his ethics case reached this Court at a time when the majority obviously felt that standards for the practice of law should be less stringent than the standard set forth twenty-three years ago in Mann. The majority overruled Mann retroactively, despite the fact that Boettner, as an attorney, is presumed to know the law and should have been aware of the premise of Mann when he committed the crime.3 Mr. Boett-ner, present your winning ticket at the window.
*144In reading the Mann opinion, I note that Mr. Mann suffered from seriously impaired physical health at the time of his income tax violations. His ninety-one-year-old mother — an invalid, totally paralyzed, unconscious, and confined to a hospital — was dependent upon him for her support. Mr. Mann’s wife had suffered a massive heart attack which required that she cease her employment as a school teacher and rendered her unable to perform household work. In fact, the Court noted that “[W]hile we are deeply sympathetic to Fletcher W. Mann because of his extremely heavy burden of troubles, we cannot agree that matters of this character are proper for consideration on the question of whether the offense of which he was convicted is one involving moral turpitude.” Mann, 151 W.Va. at 649, 154 S.E.2d at 863. In spite of the Court’s sympathy for Mr. Mann’s plight, his license was annulled.
One can only hope that an heir of Fletcher W. Mann remains alive so that he might petition the State Bar’s Committee on Legal Ethics on behalf of the late Mr. Mann for a mitigation hearing in the hope of having Mr. Mann’s license reinstated posthumously.
. Webster's New Collegiate Dictionary defines mitigate as "1. To render or become mild or milder; mollify. 2. To make or become less severe, harsh, etc.; meliorate; temper_” Black’s Law Dictionary defines mitigation as "Alleviation; abatement or diminution of a penalty or punishment imposed by law. Reduction, diminishing, or lessening amount of penalty or punishment."
. Whether the balance due on the campaign loan was ever paid is not revealed in the transcript.
. In the end, Boettner even used the office granted to him by the voters as a bartering tool, agreeing to resign his Senate seat in order to get a lesser sentence. 'By the nature of their training and because of the oath they take when *144accepting the duties of a practicing attorney, lawyers elected to public office should be held to a higher standard of conduct than other elected officials. As elected officials, this Cotut should be the guardian of the public trust. In this case that trust falls another degree because those who should enforce it have turned away from their responsibility.