dissenting:
I respectfully dissent. At the outset, it must be observed that certain aspects of this case, of vital significance to the contentions presented by both the bar association and the respondent, have been glossed over by the majority. Hence, they merit further consideration and emphasis here.
First, the cursory reference to the proceedings before Judge Miller in the United States District Court does not reflect the full import of the respondent’s plea and its acceptance. As the assistant United States Attorney presenting the case suggested to the court at that time, although the Government normally lodges a “vigorous objection to a nolo contendere plea, especially [when] offered by an attorney in a tax evasion case,” in this instance it merely wished to “file a minor technical objection” because of the respondent’s “health.” Nor, in departing from its customary policy in such cases, did the prosecution make any recommendation of sentence.
Eminent counsel then representing the respondent in the tax case informed the court that he had strongly recommended the negotiations and the resulting plea. For reasons which he thoroughly detailed, it was his considered *530opinion that many of the witnesses whom the prosecution intended to call could be discredited, and that the remainder of its case was tenuous. Furthermore, having witnessed the effect upon the respondent of the two-week trial in the Criminal Court of Baltimore, he was truly fearful of the toll — as was the heart specialist treating the respondent — that might be exacted by a six-week trial in the tax case. No one has ever challenged this estimate, nor the likelihood that the respondent’s testimony alone would have consumed approximately two weeks. As the record shows, the trial judge sitting in the Criminal Court of Baltimore (Ross, J.) had found it necessary on humane grounds to call frequent recesses of ample duration.
In accepting the plea, Judge Miller emphasized that “absent special circumstances,” a plea of nolo contendere normally would not have been allowed “in a case of this type.” Nevertheless, he had concluded that this was “one of the rare cases in which it would be appropriate” to do so. (emphasis added). Later, at the sentencing hearing, he amplified his reasons:
“. .. [T]his is a case that would likely be lengthy, at least several weeks. The health of the defendant is very bad, according to the medical reports which I have received and which other members of this Court, in connection with pre-trial motions and matters, have also received.
“. . . [T]his is a type of case in which it is, as a practical matter, almost mandatory that the defendant take the stand and testify in explanation of the various matters[.] ... Based on the medical evidence which is available to me, such an ordeal, aside from the strain of the trial itself, would be extremely serious to the health of the Defendant; and that is probably putting it as an understatement. .. .” (emphasis added).
He - then proceeded to impose sentence, which he subsequently modified by requiring the respondent merely to serve 22 days at Allenwood Prison Camp.
*531Secondly, because it erroneously perceives the respondent’s emphasis on the weaknesses of the tax case as an effort to attack the conviction itself, the majority completely overlooks the relationship which those infirmities bear to this proceeding. Specifically, as the prosecutor handling the case patiently detailed on three separate occasions (before the federal court, the bar association’s grievance committee, and the three-judge panel below), the Government had built its case not only on the conventional “net worth plus expenditure” theory, but also on the estimate by a Department of Labor economist that the respondent and his family had spent specific sums on “consumables.” This approach, which had not been previously employed by the Government in this federal district, was in the opinion of the prosecutor “novel”; hence, he and his colleagues “had some question as to whether or not it would be successful.”
The remaining proof of the tax case was to rest on the testimony of a large number of witnesses who had been clients of the respondent in connection with various gambling charges lodged against them in the state courts. One -particularly large segment of these witnesses had also testified for the state in the criminal court prosecution, where they had been so thoroughly discredited that an acquittal resulted on all of the charges that had been brought to trial. In light of this summary of the tax case, one can appreciate why the prosecutor characterized the nolo contendere plea as a “good deal” for the Government.
The majority dismisses the recommendation of the two former United States Attorneys that the respondent not be prosecuted as an attempt by the latter to equate their evaluation of the tax case with the required “compelling extenuating circumstances.” Although this is clearly not the purpose of his argument, it is not inappropriate to consider what one of the former prosecutors did say in these proceedings. Mr. Sachs had thought the case so “thin and weak” that he returned it to the Department of Justice with a recommendation against prosecution. At the hearing before the three-judge panel, he was less delicate, *532characterizing the case as a “lousy” one — “a very thin net worth case; ... we did not feel that the case should go forward.... we felt it was marginal at best in terms of strength.” This was “the only time [he] remember[ed] disagreeing with the Tax Division” during his tenure as United States Attorney. That the appraisal of the two former United States Attorneys should not be lightly dismissed is perhaps underscored by the observation of bar association counsel that he had never known either of them to “walk away from a difficult case.”
The gravamen of the matter, however, is not simply that the federal prosecution might well have failed in the event of a trial. To merely make that point here would amount to little more than — as the majority erroneously regards it — an attack upon the conviction. This is where the majority misconceives the essence of the respondent’s position. It is not that because of the weakness of the prosecution’s case, he should not be disciplined. The plea of nolo contendere — as the respondent quickly concedes — is dispositive on that score. We are confronted here, however, with the proper sanction to be invoked. To that extent, as the three-judge panel recognized, all mitigating circumstances are relevant.
Therefore, the critical point here is the submission of the nolo contendere plea in light of the suspect quality of the tax case. Manifestly, the answer lies in the poor state of the respondent’s health. As the bar association counsel observed, it “denied him his day in court.” In short, but for his health, the respondent would have been afforded a full opportunity to defend against the charges; and enough has been said about his prospects in those circumstances.
It is no answer, I submit, to say that the respondent’s heart attacks occurred “subsequent to his criminal activity . .. .” Nowhere in Maryland St. Bar Ass’n v. Callanan, 271 Md. 554, 318 A. 2d 809 (1974), did we state, much less hold, as the majority does for the first time here, that “compelling extenuating circumstances” may arise only where the conduct itself “resulted from intensely strained circumstances or [where] the magnitude and the nature of *533the crime are not so severe as to compel disbarment.” While the latter part of that statement is patently without significance, the first part is a wholly unwarranted extension of Callanan.
We held in Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 318 A. 2d 811 (1974), that disbarment will follow from conduct such as occurred here absent “the most compelling extenuating circumstances.” Both the bar association and the three-judge panel thought this was such a case, and so do I. If what we truly meant to say was that a conviction on such charges will automatically and absolutely result in disbarment, we should not have- included any idle expressions about “compelling extenuating circumstances.” As I read the majority opinion — in light of the facts here — I sincerely question whether it is realistic to suggest that a state of facts can ever exist which will suffice to avoid disbarment in this kind of case.
It must now be clear to the respondent that he was confronted with a monumental “Hobson’s choice” when he appeared in the federal court: either run a serious risk of losing his life by going to trial on a case acknowledged by virtually everyone officially associated with it to be a weak one; or face certain disbarment by pleading nolo contendere in reliance upon the sound medical and legal advice which he had received. If what we said in Agnew in respect to “compelling extenuating circumstances” has any vitality at all, that exception applies here. If it does not, as the majority holds, I am at a loss to imagine when it could ever apply.
I would adopt the carefully considered recommendation of the three-judge panel and suspend the respondent for one year. Judges Singley and Eldridge authorize me to state that they concur in this opinion.