(dissenting) — I dissent because the record in this case is insufficiently developed on the question of Petersen's mental state at the time of the acts with which he is charged to justify disbarment. Tb justify this most severe sanction we should be persuaded Petersen was essentially responsible for his misdeeds. On the record before us, that conclusion cannot be definitively ascertained.
The majority correctly indicates that disbarment is the presumptive sanction for conversion of client funds. Majority, at 854 (citing American Bar Ass'n, Standards for Imposing Lawyer Sanctions, Stds. 4.11, 5.11 (1986)). Although that is true, it is important to remember the ABA Standards do not purport to recommend the type of discipline to be imposed in any particular case. Indeed, the ABA Standards emphasize the discipline imposed "must reflect the circumstances of each individual lawyer, and therefore provide for consideration of aggravating and mitigating circumstances in each case." ABA Standards, Std. 1.3 Commentary, at 19.
The majority correctly notes the ABA Standards provide that behavior normally justifying disbarment may receive a lesser sanction if mitigating circumstances are present. Of the mitigating factors listed in the ABA Standards, the majority identifies the most relevant as Standard 9.32(c) personal or emotional problems and (h) physical or mental disability or impairment. I agree. The question then becomes, as the majority indicates, whether respondent's depression is an "extraordinary mitigating circumstance" warranting disbarment. Majority, at 856-57. It is here that I diverge from the majority's otherwise sound analysis.
The majority properly adheres to the analytical framework provided by the ÁBA, according to which the following factors are evaluated to determine the appropriate sanction: (1) the ethical duty breached; (2) the mental state of the actor; and (3) the extent of the injury. See ABA Standards, at 5. My reservation with the majority's disposition of this case is that the record points in different directions with respect *875to Petersen's mental state at the time he committed the acts charged. On the one hand, the record includes findings by the hearing examiner that the conversion of funds was "knowing". See majority, at 847, 847-50. On the other, the record contains findings that it was Petersen's serious depression that permitted the misdeeds to occur: "Respondent Petersen's misconduct occurred in 1987 and early 1988 as the result of a major depression." (Italics mine.) Hearing Officer's Letter Opinion, at 5; "Richard Petersen suffered a major depression during which he committed all of the acts for which he is now subject to discipline." Hearing Officer's Letter Opinion, at 7; see also majority, at 847-48 (quoting finding of fact 81).
The transcript of the proceedings before the hearing examiner included the following testimony about Petersen's depression from the licensed nurse practitioner in psychiatry and mental health who treated him:
Initially it was environmental, the things that were mentioned previously: the death of his father, inability to resolve the grief over that, the divorce, the heavy work load, just the emotional content of dealing with the people he was dealing with, the long hours, the poor eating, the poor sleeping. He stopped exercising. That's what started it.
But at some point, his brain accommodated him by going haywire and it became biologically mediated, and at that point changing his environment completely most likely would not have gotten rid of the depression. . . .
(Italics mine.) Transcript of Proceedings vol. I, at 124-25.
At the very least then there is ambivalence in the record regarding Petersen's mental state at the time of the relevant acts. Nevertheless, the majority concludes "[a] comparison with recent similar cases suggests that Respondent's depression is not an 'extraordinary mitigating circumstance' which would affect the presumptive sanction of disbarment." Majority, at 864.
The majority relies principally on two cases for this holding, In re Rentel, 107 Wn.2d 276, 729 P.2d 615 (1986) and In re Johnson, 114 Wn.2d 737, 790 P.2d 1227 (1990). The majority explains:
*876[T]he fact that Respondent Petersen knowingly converted the claims warrant places his case within the ambit of Johnson and Rentel. In both cases, the respondents converted client funds, claimed depression and substance abuse as mitigating factors, had expert testimony to support their claims, and entered rehabilitation programs. In both cases the court focused on the respondents' knowledge of their wrongdoing at the time the conversions occurred. Both respondents were disbarred.
Majority, at 867. In my view the test we set forth in Rentel and Johnson, and on which the majority relies, is insufficiently precise to permit a fair disposition of this case on the record before us. In those cases we asked whether the acts were committed "knowingly". The record here reveals the difficulty inherent in our present application of the "knowing" standard.
As discussed earlier, the hearing examiner expressed two potentially incompatible conclusions: (1) Petersen's misappropriation of funds was knowing’, and (2) the conduct was the product of his depressed mental state. Hearing Officer's Letter Opinion, at 5, 7. Indeed, there is uncontroverted expert testimony in the record that Petersen was considering suicide at the time of the relevant acts, and that he is unlikely to engage in such acts again because he has learned to manage his mental health. The majority cites this portion of the record:
[H]e had no idea that it was all depression or that it was a significant, a severe depression going on at that time.
He knew his mood was down, but thought that it was due to situational factors. And yet with his history and the severity of the symptoms, it was obvious that he was suffering from a major depression.
. . . My understanding of the incident of misappropriation of funds and his mental status at the time lead me to believe in fact that he was suffering from a serious depression to the point that he was actively suicidal at times. There were days when he would contemplate dying and would plan his death. And then there would be days where that would remit.
The stress that he was going through at the time, of having done, I believe, three murder trials, two of them — I may be wrong on this, but it seems to me that a couple of them were aggravated, one of them involved the death penalty, also han*877riling a fairly heavy felony load at the time, going through a divorce, and having severe financial difficulties, that with his mental status, I believe, made it much easier to do what he did.
I don't see it as a matter of intentionally — and, again, I don't mean to argue semantics or legal terms here. I'm not a lawyer. But I don't see it as being in the same kind of willful act as somebody walking into a convenien[ce] store with a gun and robbing it.
I see it more as the act of a desparate [sic] man, a man whose world was literally falling apart, . . .
So at this point, assuming that he doesn't get into that kind of depression again with those kinds of stressors, I believe that the chance of something like this happening are [sic] insignificant. Whether or not he can prevent that, I believe he can. Can I say that beyond a reasonable doubt he'll do that? I don't know. I mean, I can't say that for anybody.
But I believe at this point he has an adequate understanding of his condition and what he needs to do to take care of himself. He's demonstrated a willingness and a capacity to do that. I don't see it as being a problem.
(Italics mine.) Majority, at 859-61 (quoting Transcript of Proceedings vol. I, at 109-12 (July 12, 1990)). If Petersen's misconduct was the consequence of a state of clinical depression — a question at least possible on this record — it seems both unfair and gratuitous to disbar Petersen, both because his acts are less culpable if the product of illness, and because the pubbc would not be vulnerable to similar acts in the future if he obtains effective treatment and maintains sound mental health. See In re Noble, 100 Wn.2d 88, 96, 667 P.2d 608 (1983) (the primary purpose of sanctions is not punishment (although they may have a punitive effect, see, e.g., In re Rentel, 107 Wn.2d at 282); their primary purpose is to protect the pubbc, deter misconduct, and protect pubbc confidence in our bar). See In re McLendon, 120 Wn.2d 761, 774, 845 P.2d 1006 (1993) (citing In re Noble, 100 Wn.2d at 95).
lb the extent our previous cases suggest the severity of the sanction for conversion of cbent funds should turn solely on whether the conduct at issue was "knowing", I bebeve the inquiry should be further refined. The mere fact that *878Petersen was aware of his conduct should be insufficient to justify disbarment. Instead, we should ask whether the conduct, even if knowing, was the product of mental illness over which the respondent had no meaningful control, and for which he can be treated. Only if the answer is yes should the most severe of sanctions, disbarment, be imposed.
This court tacitly expressed a similar concern in the recent case of In re McLendon, supra, in which we overturned the Disciplinary Board's decision to disbar for conversion of funds because we considered the acts at issue to be the product of mental illness. The board concluded McLendon acted knowingly in converting the funds. The ABA Standards state that to act with "knowledge" one must have "the conscious awareness of the nature or attendant circumstances of the conduct. . .". American Bar Ass'n, Standards for Imposing Lawyer Sanctions 17 (1986), cited in McLendon, at 770; see also Standards for Imposing Lawyer Sanctions, Stds. 4.11, 4.12. The expert testimony indicated McLendon's judgment was severely impaired by the "biochemical, physiologic" nature of his disorder. McLendon, at 770. We overturned the board's finding as to McLendon's knowing mental state, relying in part on the following uncontroverted testimony from his doctor:
Q: My original question, I am trying to figure out if we have a person suffering from a bipolar disorder that would be in a manic stage, how would that affect their mental state, their ability to form an intent or the ability to know that they acted and be aware of the consequences?
A: It would be severely impaired.
Q: Would the same hold true for depression?
A: Yes.
(Italics added in McLendon.) McLendon, at 765-66 (citing Transcript of Proceedings, at 151).
We explained that we departed from the Disciplinary Board's recommendation because it treated the respondent "exactly as if he never suffered from bipolar disorder" and because we were "fairly persuaded the sanction of disbar*879ment is not fairly supported by the record." McLendon, at 774 (citing Noble, at 96).
In effect in McLendon, we declined to accept the board's characterization of the conduct as "knowing" because the uncontroverted medical testimony indicated that the respondent's judgment was so impaired that it would be unfair to hold him accountable for his wrongdoing. See McLendon, at 772 ("The record reflects that, while McLendon could act or function, his mental state and his judgment as to his actions, in all aspects of his life, were beyond his control in both phases of the illness"). The record in the instant case does not permit a conclusion one way or the other as to whether Petersen's behavior was knowing in the sense that it would be both sensible and fair to hold him accountable for his actions. I would therefore remand to the hearing examiner for further findings regarding the nature of Petersen's mental state during the period in question, specifically whether he was suffering from a state of clinical depression, and if so, how it affected his judgment. I would then have the hearing examiner — who has had the opportunity to observe the demeanor of Petersen and the other witnesses and is thus in a better position to fashion a sentence — modify the sentence accordingly.
Dolliver and Johnson, JJ., concur with Utter, J.