(specially concurring).
Although I agree with the ultimate discipline in this case, I enter a written concurrence, inter alia, for the reason that there are no South Dakota citations by way of Supreme Court decisions set forth herein. Therefore, a reliance upon settled authority in this Court is open for question. In my opinion, this should not be.
The purpose of disciplinary proceedings is not to punish but to remove from the profession those attorneys whose misconduct has proven them unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney so that the public may be protected from further wrongdoing. In re Weisensee, 88 S.D. 544, 224 N.W.2d 830 (1975); In re Rude, 88 S.D. 416, 221 N.W.2d 43 (1974); In re Van Ruschen, 38 S.D. 254, 160 N.W. 1006 (1917). Therefore, Simpson should not be “punished” but, rather, it should be determined if he is professionally fit to practice law.
Simpson has practiced law for over 30 years in South Dakota. There has not been a complaint filed against him, in all that time, questioning his honesty, integrity or ability. Simply put, neither the public, nor any of his clients, have needed to be protected from the unethical conduct of Attorney Simpson.
Attorney Simpson did not collect the tax and retain it and then fail to turn it in to the Department of Revenue; rather, he simply did not exercise his required statutory duty to be a “tax collector” for the Department of Revenue. Therefore, he has not been “dishonest” nor “unethical;” rather, he has violated a statutory duty to be a “tax collector.” It should be noted that he instituted procedures to comply with the state sales tax law, obtained a sales tax license, and filed reports. Thus, it is obvious that he genuinely realizes that this is a legal obligation which absolutely must be complied with.
In essence, we are not here judging a man who is unethical or a thief.
Seventh Judicial Circuit Judge Davis suspended an imposition of sentence and placed Attorney Simpson on probation for a period of four years. He answered in a court of law for his wrongdoing and an Order was entered against him on February 8, 1990. Conditions included making restitution to the State of South Dakota “... in such amount of sales tax, penalty and interest as is finally determined through administrative proceedings or in a Court of competent jurisdiction, to be due and owing and that a definite plan shall be developed and complied with.” Therefore, that Circuit Court Order is in effect and *924should follow its jurisdictional sequence to finality. Rehabilitation is one of the goals of the justice system in South Dakota. State v. Weiker, 342 N.W.2d 7, 11-12 (S.D.1983).
Under SDCL 16-19-35, there are five types of discipline authorized concerning attorneys. This special writer fully appreciates that the ultimate discipline of an attorney is vested in the Supreme Court of this state, with the exception of subsection 5 which provides for “Private reprimand” by the Disciplinary Board.
In the Matter of the Discipline of Stanton, 446 N.W.2d 33 (S.D.1989) we held:
We need not give deference to Referee’s or Board’s recommendations for sanctions. The ultimate decision for discipline of members of the State Bar rests with this Court.
Bar associations’ recommendations may come and go *, lawyers down through the decades may trod upon the legal scene, referees may be appointed or not appointed, but in the end, with the exception noted above, it is the Supreme Court of this state, and its five Justices, who decide the type of discipline which should be administered.
Concerning the alleged income tax violations, Simpson has been convicted of nothing with respect thereto. Were he so convicted, this Court could consider Weisensee. Therein, the attorney was convicted for willful failure to file an income tax return. We held that he should be suspended from practice for three years. Here, we are suspending Simpson for two years and he has never been convicted of failing to file an income tax return. See, Matter of Discipline of Bergren, 455 N.W.2d 856 (S.D.1990) wherein an attorney was suspended for one year for professional misconduct due to various sexual contacts and conduct with clients.
When this case was argued, counsel for the Board made statements that Simpson had filed his income tax returns “now” and “... has no liability, criminally or civilly to the United States government....” If those are not his exact words, I beg his forgiveness but this is what I wrote down during argument.
From all argument at the formal disciplinary hearing before the Supreme Court of this state, it was generally agreed that John Simpson had made his peace with the United States government.
Simpson’s demeanor, for failing to be a state tax collector, is one of deep regret and remorse. He is very sorry that he failed to comply with the state law. But this does not make him a crook. He is, simply, not an individual from whom the public should be protected against.
There is much to be said on the basic goodness of John Simpson. The record strongly reflects that he is a man of strong compassion for those people confronted with serious legal problems, by representing them for nothing. I am reminded of Justice Oliver Wendell Holmes who expressed: “We are not mere grubbers in the muckheaps of the world.” Law, and the practice thereof, is not a commercial enterprise. Good lawyers will defend the weak, even though they are not paid.
John Simpson has a long history of helping Native Americans and defending juvenile proceedings on a pro-bono basis. This Court has been furnished with a plethora of petitions, letters and statements in general support of permitting him to continue to practice law. He spent a number of years as a tireless coach and advisor for young people in baseball programs. He was involved in numerous community affairs. The lawyers in the entire region speak highly of him and represent to the Court that he is a man of high principles. He is a devoted Christian and family man and I cannot bring myself to vote to disbar this man when he has lived such a good life.
I am authorized to state that MORGAN, Retired Justice, joins this special writing.
See, In re Discipline of Draeger, 463 N.W.2d 346 (S.D.1990), wherein we expressed we would give careful consideration to the Board’s judgment but we are not bound by its judgment, citing In re Husby, 426 N.W.2d 27, 28 (S.D.1988).