dissenting.
This is a difficult case that compels us to consider the purposes of our disciplinary system for attorneys and presents us with an opportunity to choose a sanction to further those goals. Bearing in mind that the overarching purpose of the discipline system is not to punish but to enhance confidence in the legal profession and protect clients and the community affected by a lawyer’s actions, I conclude that on the facts of this case, not only the individual attorney but the legal profession as a whole would be better served by a more lenient sanction that places a meaningful incentive on voluntary disclosure of serious lawyer misconduct.
My dissent has nothing to do with disagreement over the Board’s or the majority’s characterization of the gravity of Randy Weiss’s misconduct. In fifty-four transactions over a period of three years, he embezzled hundreds of thousands of dollars that belonged to his firm. He kept the money in a personal money market account and paid taxes on the interest earned, treating it as his own. But for the unusual fact that he did not touch the funds, Weiss’s conduct is sadly reminiscent of other thefts from people to whom lawyers owe a fiduciary responsibility. His conduct is criminal and involves dishonesty, and therefore violates Rule 8.4(b) and (c) of the Rules of Professional Responsibility.
What takes this case out of the ordinary is what happened next. Filled with remorse, Weiss consulted his rabbi and, on his advice, informed his partners about what he had done: He then repaid the money (which, as mentioned, he had not used), foregoing the 17.2% share to which he would have been entitled had the firm received the fees in the normal course. He also paid for an outside audit and helped to implement procedures to prevent similar future occurrences. The record indicates that, but for his voluntary disclosure, Weiss’s misconduct would not have been revealed.1 Weiss ceased to be a part*675ner of the firm after his disclosure. He remains associated 'with the firm, however, and his former partners have indicated that they will review his status upon conclusion of these proceedings. Weiss has been examined by two psychiatrists, both of whom advise that his actions were motivated by extreme insecurity, that he has responded well to treatment and that he is unlikely to repeat his misconduct. The Hearing Committee similarly found that Weiss is unlikely to engage in future misconduct.
Weiss’s decision to disclose his misconduct voluntarily is not only unusual as a matter of fact; it is also without precedent in our disciplinary cases. Rejection of the Board’s recommendation in this case, therefore, will not “foster a tendency toward inconsistent dispositions for comparable conduct” because we simply have never had a case like this one.2 D.C. Bar R. XI, § 9(g). The majority adopts the recommended sanction of suspension for three years with one year suspended in favor of probation for two years or until his therapist advises that therapy is no longer necessary. For the reasons that follow, I conclude that the recommended sanction is inconsistent because it is too harsh in comparison to other cases. Most important, the recommended sanction is also unwarranted because it does not adequately serve the interest of promoting voluntary disclosure. Instead, I would suspend the entire recommended three-year suspension in favor of probation conditioned on the continuation of therapy until Weiss’s therapist advises that therapy is no longer required.
The principal case where we have discussed voluntary reporting of misconduct is In re Hutchinson, 534 A.2d 919 (D.C.1987) (en banc). After buying call options on a tip from a friend, Hutchinson communicated the inside information about an impending tender offer. He then lied under oath in the course of an SEC investigation to cover up the insider source of the information and his own actions. See id. at 921. He later recanted his misstatements and told the truth. In a civil en*676forcement action brought by the SEC, Hutchinson agreed to surrender $72,000 in profits. See id. He also plead guilty to a misdemeanor under the Securities Exchange Act of 1934, 15 U.S.C. § 78 ff (a) (1982). See id. In the ensuing discipline case, we noted that his eventual cooperation mitigated his offense and suspended him for one year. See id at 924-25.
The majority dismisses the relevance of the more lenient sanction in Hutchinson on the ground that the underlying misconduct in the two cases is different. But the differences are immaterial on the question of sanction. Although Hutchinson’s untruthful testimony and disclosure of inside information and Weiss’s embezzlement of firm funds are different, both involve dishonesty and are punishable as crimes3; both constitute violations of the rule against engaging in dishonest conduct or committing a criminal act that impugns a lawyer’s honesty, trustworthiness or fitness as a lawyer.4 Moreover, insider trading is a type of theft from investors who do not have the benefit of inside information to avert loss or realize gain. See Hutchinson, 534 A.2d at 921 (noting that in consent order settling the SEC civil enforcement action Hutchinson’s profits from insider trading were distributed to sellers of stock options). Thus, I disagree that the misconduct in the two cases is not comparable. What is significantly different is that nothing in Hutchinson suggests that the insider trading would have gone undetected, as the SEC immediately mounted an investigation. Unlike Weiss, who reported his misconduct to his firm and to Bar Counsel under circumstances where it was not likely to be discovered, Hutchinson made a tactical decision to disclose only under pressure of an SEC investigation. If Hutchinson was suspended for one year in a situation where he disclosed in the course of an impending investigation, Weiss, whose disclosure was truly voluntary, should not be suspended for two additional years. To do so is to apply inconsistent sanctions.
The recommended sanction is also “unwarranted” in light of “the nature of the violation, the mitigating and aggravating circumstances, the need to protect the public, the courts and the legal profession,” In re Haupt, 422 A.2d 768, 771 (D.C.1980), and the moral fitness of the attorney. See In re Smith, 403 A.2d 296, 303 (D.C.1979). The violation, though admittedly grave, has been fully cured. No client funds or trust, the prime concern of the disciplinary system, were involved. The direct victims of the misconduct, Weiss’s firm and partners, have been made whole financially, and continue to include him in their law practice. Weiss’s moral fitness, is evidenced by his decision to self-report, the actions he took to correct his misconduct, and the absence of any prior or anticipated problem with the discipline system.
So the remaining question is what sanction will best protect the public, the legal profession and the courts. I do not dispute that a valuable function of sanction is its deterrent value, and that a sanction of suspension might in routine cases deter others from engaging in similar conduct. But fidelity to the facts of this case re*677quires us to ask the narrower question whether misconduct that would go undetected but for voluntary disclosure, as here, will be deterred by the prospect of suspension. If one assumes that the misconduct would remain undetected, the premium is on encouraging voluntary disclosure and full restitution. I rather think that will be more likely at the prospect of a significantly lessened sanction that does not imperil the ability to practice law.
If deterrence depends on the expected value of punishment, calculated as the severity of that punishment multiplied by the probability of apprehension and conviction, as the probability of detection increases, a less severe penalty must be used to achieve the same level of effective deterrence. See RiohaRD A. PosNER, Economio Analysis of Law 204-07 (3d ed. 1986). Typically the probability of detection is less than one — escape is always possible. For an individual who self-reports a violation, however, the probability of detection is one, and to achieve the same level of effective deterrence as those who attempt to avoid punishment, the severity of the punishment must be lessened. If not, no one would self-report, because a rational individual would always prefer to secrete his crime and suffer the possibility of detection rather than confess that crime and face the certainty of the identical penalty. An individual who self-reports therefore should always be punished less severely than one who does not, assuming comparable violations.
Weiss, of course, made full disclosure out of a sense of remorse and not because of an expectation gleaned from our cases that he would escape serious sanction. But if we could always rely on a prodding conscience, the investigations, adjudications and sanctions of the disciplinary system would be largely unnecessary. In the discipline system, we do not stand in judgment of lawyers’ souls and impose punishment in some absolute sense. Our job is more prosaic: to evaluate attorney conduct in light of the Rules, and assess sanctions that further the goals of protecting clients and promoting confidence in the Bar. See In re Reback, 513 A.2d 226, 231 (D.C.1986) (an banc) (“In all cases, our purpose in imposing discipline is to serve the public and professional interests we have identified, rather than to visit punishment upon an attorney”). Consequently, our approach should be pragmatic and logical.
The imposition of probation in this case not only would recognize — as have other jurisdictions5 — that Weiss’s self-disclosure and full restitution merit leniency, but also would provide an opportunity to establish a real incentive for future voluntary self-disclosure and restitution, which would foster integrity in the profession, enhance public confidence and ease the burden at all levels of the discipline system: Bar Counsel, the BPR and this court. We have the discretion to do so. See In re Banks, 709 A.2d 1181, 1182 (D.C.1998) (explaining that “nothing in our decisions prohibits the Board from recommending probation in a *678non-disability case”). I would not miss that opportunity.
. Weiss acted not only as counsel but as title insurance agent, and was compensated in both capacities. In his testimony, Weiss explained that, unlike legal fees, the cost of title insurance is not shown on the settlement statement. Generally, the licensed title insurance agent who conducts the closing retains for his or her account a portion of the title *675insurance premium as a commission (in this case 80 percent) remitting the rest as to the title insurance company for its risk associated with the transaction. Whenever Weiss acted in his capacity as real estate lawyer and title insurance agent, an invoice would be generated by the law firm for legal fees associated with the transaction, and the firm’s accounting system would show an account receivable in that amount. That bill would either be paid directly to the firm, or, if paid to Weiss, would be turned over to the firm. An invoice, however, was not generated by the firm for the title insurance commission, which was owed by the client to Weiss — not the firm — as agent. As a result, the firm’s billing system would not show an account receivable for the title insurance commission. Under this system Weiss easily was able to remit the legal fees to the firm and retain the title insurance commission for himself in approximately 30 percent of the cases without being detected.
. The cases relied on by the Board and the majority do not approximate the voluntariness and candor that Weiss has shown and, in some cases, were the exact opposite. See In re Appler, 669 A.2d 731 (D.C.1995) (disbarring attorney, who suffered from bipolar disorder, caught after he embezzled more than 1.1 million from his law firm over a five-year period and there was possibility of relapse into future misconduct); In re Gil, 656 A.2d 303 (D.C.1995) (noting that "respondent's betrayal of the trust of a friend.... show[ed] him to be wanting in his fundamental awareness of right and wrong”); In re Goffe, 641 A.2d 458 (D.C.1994) (noting that attorney, who lied and manufactured evidence, did not "understand the impropriety of his conduct”).
I also do not think that the cases on which Weiss relies, In re Berg, 694 A.2d 876 (D.C.1997), and In re Paragano, 747 A.2d 1189 (D.C.2000), are particularly useful because they are reciprocal discipline cases in which we defer to the sanction imposed by the original disciplining jurisdiction.
. In Hutchinson we noted that lying to the SEC is a felony punishable by imprisonment for five years or a fine of $10,000, or both, under 18 U.S.C. § 1001 (1982), and that lying under oath is perjury under 18 U.S.C. § 1621 (1982) and D.C. code § 22-2501 (1981). See Hutchinson, 534 A.2d at 924.
. Here, the applicable provision is Rule 8.4(b) and (c). The predecessor at issue in Hutchinson was D.R. 1-1.02(A).
. The Minnesota Supreme Court has declined to suspend attorneys, where the miscondufct has come to light as a result of full voluntary disclosure. See In re Nurnberger, 272 N.W.2d 914 (Minn.1978) (placing on supervised probation an attorney who converted large sums of money from clients’ trust fund to own use over a period of three years, but then remitted funds to clients and disclosed to all affected clients and discipline system, in absence of investigation); In re Simonson, 365 N.W.2d 259 (Minn.1985) (ordering public reprimand and fine for lawyer who misappropriated $67,652 in client funds, which usually is sanctioned by disbarment, in case where lawyer voluntarily disclosed even though misconduct might have gone undetected, cooperated with investigation, made restitution and had good character).