(dissenting).
This attorney stipulated that his conduct in handling his trust account, client’s settlement proceeds, and responding to the correspondence and requests for production from the disciplinary board fell below that required by the Code of Professional Responsibility. Based on these undisputed facts, Tidball should be disciplined.
This record also brings to light another attorney who was operating with an impotent, deadened, crippled, and disabled mind during the periods in question. Again it is obvious that these conditions were caused in part, if not totally, by the destructive disease known as alcoholism. I totally acknowledge that this disease is not a defense to an attorney’s misconduct, but can only be considered as a mitigating factor when meting out an appropriate discipline. In re Walker, 254 N.W.2d 452 (S.D.1977).
The fact that Tidball did not seek treatment until the eleventh hour should not be a determinative factor in this case. There can be no set rule as to when a person suffering from alcoholism will realize they have hit the bottom of the barrel. The important fact to consider is that a person has finally realized that he/she has a problem and sought help. The affidavit submitted by an active member of Lawyers Concerned for Lawyers, an adjunct organization of the State Bar, states that Tidball has been sober for eight months, which is a length of sobriety never attained by a majority of alcoholics. This is probably due to the fact that alcoholism, due to its nature, is characterized by a high rate of recidivism.
There does not appear to be any dispute of the fact that in this case there was a causal relation between how this disease affected Tidball and its contribution to his misconduct. The major difference in this case and other discipline cases is that a member of the public, United Sioux Tribes of South Dakota Development Corporation, has come forward and requested that Tid-ball be allowed to continue to represent it as its in-house counsel. This request has been made notwithstanding this entity’s full knowledge of Tidball’s past misconduct. This organization has represented to this court that it needs Tidball’s services, his experience in handling the work is irreplaceable, the firm has confidence in Tid-ball’s ability, and Tidball has expertise in Indian affairs. Finally, it represents that Tidball “has always been there to help the *860poor and poverty stricken without great concern for compensation.” This could explain a part of Tidball’s financial problems as evidenced in this record.
This court has recognized on a number of occasions in the past that
the purpose of disciplinary proceedings is not to punish but to remove from the profession those attorneys whose misconduct has proved them unfit to be entrusted with duties and responsibilities belonging to the office of an attorney so that the public may be protected from further wrongdoing. Disbarment is warranted when it is clear that the protection of society requires such action or where the maintenance of respect for courts and judges or the respectability of the legal profession itself demands such action.
Walker, 254 N.W.2d at 455 (citations omitted).
Also, in determining an appropriate discipline, this court has held:
We must keep in mind that the real and vital issue to be determined in disbarment proceedings is whether or not the accused, from the whole of the evidence submitted, is a fit and proper person to be permitted to continue in the practice of law.
In re Weisensee, 88 S.D. 544, 546, 224 N.W.2d 830, 831 (1975).
It goes without saying that alcoholism is not a defense but can only be considered as a mitigating factor. Walker, supra. Further, this court has acknowledged in the past that rehabilitation is appropriate for consideration in this type of proceeding.
We are not unmindful that this is a case of first impression in the area of attorney discipline in this state and we sincerely hope that it will serve as an incentive to this respondent to continue his efforts at rehabilitation and as an adequate measure to protect the public against a recurrence of the harm which was caused by his delinquencies.
Walker, 254 N.W.2d at 457 (emphasis supplied).
As this case comes before this court, I cannot agree that the appropriate discipline is to place this fifty-nine-year-old attorney out to pasture for three years or, in essence, end his legal career. On the other hand, if the record was such that no efforts had been made to overcome his bondage to booze, I would not hesitate to vote for a more severe punishment. Therefore, in this case, it is not clear that an unconditional three-year suspension is required or needed.
In re Discipline of Bleeker, 466 N.W.2d 858 (S.D.1991), this court issued a six-month suspension where the referee found the attorney failed to keep proper records of estate assets, commingled client funds with his own, failed to keep clients’ funds safe and separate, and was guilty of constructive fraud.
Also, the Board in this case relies on the case of Giovanazzi v. State Bar of California, 619 P.2d 1005 (Cal. 1980), for the fact that mishandling of a trust account constitutes a serious breach of the Code of Professional Ethics. This court has so found in the majority holding. A further review of Giovanazzi brings to light that the appropriate discipline for such serious conduct was an actual thirty-day suspension. Id. 169 Cal.Rptr. at 586-87, 619 P.2d at 1010.
When dealing with cases involving the disease of alcoholism, this court should fashion discipline to accomplish the following objectives: (1) protect the public; (2) encourage rehabilitation; and (3) fashion the discipline to protect all concerned when dealing with this most difficult disease, but yet not lose sight of a public perception that the matter was merely swept under the rug or white-washed. In attempting to attain these laudable goals, I would impose the following discipline in this case:
That Tidball be suspended for three years, with all but ninety days of the suspension held in abeyance on the following conditions:
(1) He shall only be authorized to perform legal work for United Sioux Tribes of South Dakota Development Corporation as its full-time employee after the ninety-day suspension has expired.
(2) He shall not reopen his office for the general practice of law for the full *861term of his suspension and shall be required to follow the procedures of SDCL 16-19-84 to SDCL 16-19-86 after three years from the effective date of this decision before going back into the general practice.
(3) He shall refrain from the use of alcoholic beverages or controlled substances at all times.
(4) He shall continue with his program of rehabilitation which includes, but is not limited to, attendance at AA meetings.
(5) He shall refer his three remaining active files to other attorneys.
(6) He shall refund $1,500.00 to Glenda Hall.
(7) He shall pay the costs of this proceeding within six months from the date of the decision.
By allowing this limited right to be employed and earn a living, this attorney in the twilight of his career will be allowed to provide for his family, pay his debts, continue on with his rehabilitation, and at the same time the public has been protected. This proposed discipline would be difficult to construe as merely sweeping under the rug or white-washing this attorney’s misdeeds.