specially concurring:
I reluctantly agree with the majority that, given the limited disciplinary record available to this court in this case, the discipline the majority imposes on respondent is appropriate. I write separately because I do not believe that bar counsel investigated or presented this case in conformity with the standards required by our rules.
Rule 57(a), Rules of the Supreme Court, provides that a lawyer shall be disciplined upon conviction of a felony “as the facts warrant.” That same rule provides that a certified copy of the judgment of conviction be transmitted to the State Bar. Rule 57(a)(2). This proof of conviction constitutes “conclusive evidence of guilt of the crime for which convicted in any discipline proceeding based on the conviction.” Rule 57(a)(3). Thus, bar counsel need not reliti-gate the commission of the criminal offense in the disciplinary proceeding; however, that does not mean the State Bar’s investigation of the relevant facts in order to recommend what discipline to impose should stop with the receipt of the criminal judgment.
When, as in this case, the order for interim suspension has been vacated because a felony conviction has been set aside upon successful completion of criminal probation, see A.R.S. § 13-907(A), the pending disciplinary proceeding “will not automatically terminate.” Rule 57(d). Indeed, as happened here, the disciplinary process continues regardless of the disposition of the criminal judgment, and the disciplinary disposition “shall be determined on the basis of the available evidence.” Rule 57(d). I believe the combined wording in rule 57(a) that discipline shall be imposed “as the facts warrant” and in rule 57(d) that the disposition shall be based on “the available evidence” imposes a duty on bar counsel to investigate and present more complete evidence of the facts involved in the underlying criminal offense than a mere copy of the formal criminal judgment of conviction.
The sketchy disciplinary record in this case leaves me troubled about respondent’s potential involvement with a client in his drug usage. The majority reasons, “He did not misappropriate client funds or neglect client business, nor did he involve his clients in his drug usage. This factor weighs very heavily in our decision.” At 158, 791 P.2d at 1041. However, respondent admitted before this court that one of the codefendants with whom he was arrested for possession of cocaine was a former client. Although the limited record before us does not indicate that respondent’s drug abuse affected his representation of clients, it creates a doubt in my mind about the extent of his involvement with a client in his illegal drug activities.
In reviewing the transcript of testimony before the Committee, I find no evidence presented by bar counsel about this potential involvement with a client. Bar counsel presented a certified copy of respondent’s conviction, and told the Committee, “the sole issue today is the determination of the extent of discipline; in effect, this is a mitigation hearing." Bar counsel indicated that “the only witness that we may have that would be classified as a State Bar witness, or perhaps a joint-witness, is ... [the] Director of the [Membership] Assistance Program.” Most of the exhibits admitted by stipulation of the parties concern respondent’s evidence of rehabilitative *163efforts after the crime, not factual circumstances surrounding the actual offense.
The only testimony respondent gave before the Hearing Committee regarding the circumstances of the criminal offense was as follows:
I was with two other people and a small amount of cocaine had been purchased, and I was stopped by a Phoenix police officer on Buckeye Road on a traffic violation, and eventually we were searched, and 19 milligrams was found in my possession.
The only evidence before us of respondent’s potential involvement with a client is in Exhibit 20, respondent’s presentence report, which contains the following summary of his statement about the crime:
Under the advice of his attorney, the defendant stated that he preferred not to discuss the specific details of his arrest. He would like the Court to be aware that he had known Ms. Pickering for over seven years and that although she mentioned that he was her attorney, that he only represented her in the past as a favor to her when she did not have money to hire someone else. He felt that she was off probation at the time that this occurred and wanted to make it clear that he never encouraged others to use drugs, particularly since he had a problem with them himself.
(Emphasis added.)
When respondent was questioned at oral argument before this court about the involvement of his client, he was evasive about his professional relationship with his codefendant:
Q My question to you is, what happened the night you were arrested? Who were you with? And how did they come to be with you?
A One of the persons with me was Pickering, a person I had known for approximately 7 years.
Q A former client?
A Well....
Q The probation report indicates____
A Okay, and I had informed the probation officer with respect to that that I had known her for years before that, ... that she had gotten into trouble, hired me, begged me to represent her, ... pro bono, ... which I did. But I want it to be clear to the court that my relationship with that particular person was ... six or seven years before that.
Q Was she known to you to be a drug addict at that time?
A User, drug user, I would state, yes.
Q How did she get involved that night?
A We were just in contact.
Q Did you bring her to Mr. Solano with you to get drugs?
A We were in the car together.
Upon being questioned at oral argument about what the record indicated about respondent’s involvement with a client in his drug use, bar counsel responded as follows:
Well, specifically, Your Honor, that one woman involved had been an acquaintance of Mr. Rivkind’s prior to that representation and after that representation, but the evidence does not indicate that Mr. Rivkind engaged in drug activities with clients, that he purchased from clients, or sold to clients. That’s not in the record, sir.
(Emphasis added.)
I am able to discern, however, from easily obtainable documents of public record regarding respondent’s conviction and the convictions of his two codefendants, that the woman arrested with respondent for possession of cocaine was not only a former client, but was, at the time of the arrest, still on a 3-year probation imposed on December 5, 1984, for the conviction for which he had represented her. Moreover, respondent was present when she was so sentenced. In fact, as a result of her “involvement” with her attorney on the night of their arrest, her previous undesignated offense was designated a felony conviction, and she was subsequently convicted of a drug offense. However, bar counsel failed to bring this to the attention of any of the three tribunals before which they present*164ed this case. I raise this point not to produce another aggravating factor outside the scope of the disciplinary record before this court, but to indicate the need for bar counsel to fully investigate the facts and present evidence regarding the underlying criminal offense. Bar counsel must do more than simply produce a copy of the judgment of conviction when conducting a disciplinary proceeding under rule 57(d). I realize that doing so may result, in future cases, in the filing of additional counts of misconduct, but this may be necessary to protect clients, the public, the bar, and the bench.
I believe that bar counsel, as the representative of the State Bar of Arizona, has a duty to investigate the full factual record of a respondent’s criminal conviction. See R. Abel, American Lawyers 246-47 (1989). I believe “the available evidence” before the committee, the commission, and this court should include, at a minimum, not only the certified copy of the judgment of conviction, but also the following relevant documents from respondent’s criminal file as evidence of the factual background of respondent’s misconduct: (1) the findings of fact and conclusions of law made by the trial court in ruling on respondent’s motion to suppress; (2) the decision of the court of appeals upon respondent’s appeal from his conviction; (3) the presentence report submitted by the probation department in the criminal files of respondent’s codefendants; and (4) any available transcripts regarding respondent’s statements about the circumstances of the arrest, and the statements of his codefendants and other witnesses.
However, because bar counsel did not investigate the facts to this extent and present pertinent evidence of client involvement in this criminal offense, I reluctantly must agree with the majority that respondent’s “involvement with a client” in his illegal drug activity is not established in this limited record, which contains evidence only of the mitigating circumstances regarding his rehabilitative efforts, which occurred only after his conviction. However, if respondent’s involvement with his client could be inferred from the records in the criminal cases, and if those records wére before us, I would have found that involvement to be an extremely aggravating circumstance. See, e.g., In re Toran, 151 Wis.2d 194, 443 N.W.2d 927 (1989) (attorney arranged to receive cocaine from client in partial payment of fees); People v. Smith, 778 P.2d 685 (Colo.1989) (after representing client, attorney purchased cocaine from client and allowed police to record conversation to avoid drug charges filed against himself). I believe that such involvement in criminal activity with a client, if evidenced by the disciplinary record before us, would have warranted substantially more serious discipline than that imposed here.
The majority has applied ABA Standard 5.12, which recommends suspension when the attorney’s criminal conduct does not include the aggravating elements contained in Standard 5.11. However, Standard 5.11 recommends disbarment when the criminal conduct involves “an attempt or conspiracy or solicitation of another to commit” any of the named offenses, which include sale or distribution of controlled substances. If this record had established that respondent involved his client in obtaining his illegal drugs, I would have applied the more harsh disbarment discipline recommended by Standard 5.11.
As in all disciplinary cases, the real issue is not whether this attorney has suffered enough or whether the recommended sanctions are excessive, but how to best protect the public from future harm and maintain its respect for the legal profession. I believe the public is best protected from attorneys who involve their clients in crime by the sanction of disbarment. See, e.g., The Florida Bar v. Beasley, 351 So.2d 959, 960 (Fla.1977).