dissenting.
I cannot concur in disbarment on the record before us. One or more members of the firm may eventually be found guilty of *452a Wilson violation but the unique procedural posture of this case calls for further factual findings before I would vote to disbar.
Under In re Wilson, 81 N.J. 451 (1979), a knowing misappropriation ordinarily will warrant disbarment. “[MJaintenance of public confidence in this Court and in the bar as a whole requires the strictest discipline in misappropriation cases. That confidence is so important that mitigating factors will rarely override the requirement of disbarment.” Id. at 461. A Wilson violation almost invariably results in disbarment; thus, such a case will ordinarily engage our closest attention because the consequences for a lawyer are so final. Lawyers are entitled to no less fundamental procedural fairness than others facing disciplinary sanction. In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1225, 20 L.Ed.2d 117, 122 (1968). I find the procedures in this case lacking and would therefore not vote to disbar.
First, in the interests of cooperation, the respondents entered into a stipulation with the presenter at the District Ethics Committee level. No evidence was presented that funds of any client were ever knowingly invaded. The case against respondents consists of inferences drawn from their perhaps too contrite and perhaps too belated recognition that the intermingling of clients’ funds with their own would almost inevitably result in some clients’ funds being used for the firm’s business purposes. Nonetheless, the respondents seemingly prepared for this case as if it were not a misappropriation case but rather a record-keeping case. At the opening of the hearing before the District Ethics Committee, a discussion took place concerning one phrase in Count Five of the Stipulation of Facts that stated that “[a]ny record keeping or bookkeeping discrepancies which may have existed were due to inadvertence and lack of bookkeeping skill. All records were maintained and accounted for.” It has been suggested that deletion of this phrase from the stipulation should have alerted respondents to the fact that at the hearing they would be charged with knowing misappro*453priation. The discussion of the deletion, however, concerned the fact that respondents recognized that during this period of time, their trust account, as well as their business and operating accounts, were handled under one account. Respondents were well aware of this fact. Conversely, it is not clear that they were aware of any knowing misappropriation.
The case proceeded then solely on the basis of the complaint and the revised stipulation. Had the respondents chosen not to present any evidence to the Committee, it is quite inconceivable that one could have found them guilty of any knowing misappropriation. Nicholas D’Apolito, an accountant retained by the Office of Attorney Ethics, analyzed the reconciliation of the respondents’ books by David T. Ontell, a Certified Public Accountant. In his affidavit, D’Apolito concluded that “based upon the follow-up work I have performed, I have not received from either Mr. Ontell or the firm any evidence to the contrary in dispute of the facts as stated in my affidavit of March 21, 1983 or this affidavit which would alter my conclusion that H. Barry Shultz, Esq., Edward L. Fleischer, Esq., and Jay Lawrence Schwimer, Esq. of the firm Shultz, Fleischer, & Schwimer have not maintained appropriate books and records to account for clients’ funds as required by R. l:21-6(b)(2) and this constitutes a violation of DR 9-102(A)(l) and (2), DR 9-102(B)(4) and DR 9-102(C).” Notably missing from the affidavit is any statement that definitely concludes that the individuals knowingly misappropriated any clients’ funds at a particular time. D’Apolito had concluded in his previous affidavit that “[i]n absence of evidence to the contrary, it is reasonable to infer from the transactions noted above that the checks drawn * * * against the trust account * * * represent an invasion of * * * [some] * * * client’s or [other] clients’ trust funds.”
Secondly, apparently believing themselves not in mortal danger, respondents did not undertake to weigh their individual responsibility. They gave informed consent to a common defense to these charges. Nonetheless, it is clear from our cases that we evaluate professional responsibility not on a collective *454basis but on an individual basis grading the responsibility of each of the individuals. See, e.g., In re Shamy, 59 N.J. 321, 326 (1971). There are sharp differences in responsibility among the individuals involved here and I simply find it unfair now, after stipulations have been entered, to join them all together.
Finally, we must ourselves be clearly convinced that there was, in fact, an intentional invasion or knowing misappropriation of clients’ funds. In re Sears, 71 N.J. 175, 197 (1976).
This high standard emphasizes the reluctance which should characterize a decision to impose a disciplinary sanction and the serious consequences which attend such a decision. As a practical matter, such a decision limits, if it does not preclude, an attorney’s opportunity to practice his chosen profession. We should impose such a restriction only after careful deliberation and only in circumstances which clearly warrant it. [Id. at 197-98.]
We must look carefully, then, at the complaint of professional misconduct that was filed against these individuals. The first count of the complaint charged that the respondents commingled funds for approximately two years, in violation of Rule l:21-6(a) and Disciplinary Rule 9-102(A). This continuation of unethical conduct was alleged to constitute gross negligence in the handling of clients’ funds and to reflect adversely on the respondents’ fitness to practice law. So much they have admitted.
The second count charged them with failing to balance or close out many cliént trust accounts. Client ledger sheets were set out reflecting six undisbursed credit balances. The absence of ledger sheets, required by the Rule, was specified in twelve instances. Allegedly, eleven checks were shown in the account where a client ledger sheet existed but did not reflect the transaction. Respondents were charged with failure to maintain journals of receipts and disbursements and to reconcile their accounts. Each and every one of these matters was specifically addressed and the accounts were reconciled in the stipulation. The parties concede that the records were inadequate.
The third count concerned seven specific instances of overdrafts made on the trust account. Each instance was dealt *455with in the stipulation and all of the clients’ funds were accounted for. The complaint stated that the trust account items that were returned represented “conclusive evidence of a prior invasion of a client’s funds constituting misappropriation” and otherwise reflected adversely upon respondent’s fitness to practice law. This evidence was concededly relevant to fitness to practice law, but I cannot conclude that a bounced check represents conclusive evidence of a prior invasion of a client’s funds constituting misappropriation. We know that on many occasions, even through error, the Internal Revenue Service or others will seize an attorney’s trust account funds, causing an unintentional return of a check. Banks frequently do not credit accounts with deposited funds for extended periods of time even though the funds are on hand. We could never conclude that, standing alone, a bounced check would constitute misappropriation.
The fourth count alleges a series of account transactions, commencing in December 1981, that disclosed negative trust account balances. The count concluded that these “extensive and prolonged trust account shortages * * * reflect a dereliction of the fiduciary requirements of R. 1:21-6 and DR 9-102, and are evidence of misappropriation and misapplication of client funds in violation of DR 1-102(A)(4) and (6).” Respondents’ accountant found certain instances of negative balances but concluded that it did not demonstrate misappropriation:
Because Respondents did not balance the trust account, and, further, because Respondents relied upon bank balance information provided to them by telephone by the bookkeeping department of their bank, the effect of uncleared checks and undebited disbursements was not accurately considered. This lack of an orderly procedure, together with Respondents' use of primarily only the one account, caused Respondents to rely on dated and inaccurate information as to the account balance on any given business day.
The fifth count incorporates the allegations of the first four counts and concludes that “[t]hese failures of accountability led to their natural result in Respondents’ operation of a ‘revolving’ trust account wherein each new trust deposit was invaded as necessary to accommodate both office and personal expendi*456tures and disbursements on behalf of previously invaded trust deposits.” The respondents conceded that they had an account in which trust and business funds were commingled, but they did not admit that they knowingly invaded clients’ funds.
Notwithstanding the fact that more than 22 specific items are mentioned in the several counts of the complaint, this Court makes no finding that the funds of any particular client were ever knowingly invaded on any specific occasion. The Court points to three specific matters (Samaro, Ocana and Lima) that are said to demonstrate an intent to invade clients’ funds. But the majority’s disposition does not turn upon an analysis of which partner drew on the funds or what that partner knew. Thus, I must examine the record for evidence of a knowing misappropriation of clients’ funds.
The detailed analysis submitted on behalf of the respondents explains that conclusions with respect to the invasion of trust funds based upon either bank statements or returned items are simply improper from an accounting viewpoint. Even as to the critical month of December 1982, when the Samaro incident occurred, respondents’ accountant states that the “firm deposits in the trust account were $6,379.47 in excess of the $17,-716.68 referred to * * * as non-trust disbursements [in the OAE’s account].”1 Respondents have never conceded that they misappropriated these funds. The affidavit that Mr. Fleischer filed with the District Ethics Committee stated:
Although we concede our dereliction with respect to the commingling of the funds, to my knowledge no client was shorted funds and there was never an intent or belief on our part that client funds in our trust account were used or that any loss or prejudice has occurred to any of our clients. I believe that a complete audit will show that we did not misappropriate any client’s trust funds. This, of course, does not lessen our responsibility with respect to the *457commingling of the funds or the sloppy record keeping practices referred to above.
In addition, the record disclosed that respondents refrained from any draws on the account when they believed clients’ funds would be involved. We recently noted in another case that questioning at oral argument “revealed that the OAE’s position was not that knowing misappropriation had been established, but rather that respondent’s negligence in handling money was sufficiently gross to warrant disbarment even [though] he did not know it was client’s money. That is not the rule of Wilson.” In re Noonan, 102 N.J. 157, 160-61 (1986) (emphasis in original).
The majority takes note of the respondents’ testimony at the committee hearing, concluding therefrom that respondents knowingly misappropriated funds. Ante at 444-447. This conclusion is based on respondents’ testimony that they realized, at the time of the hearing, they had used clients’ funds since checks had been returned for insufficient funds. The danger in such reasoning is that when lawyers are not contrite, they are criticized for not acknowledging their faults; when they acknowledge their faults, they are held to have confessed. Moreover, the statements are inconclusive, since they do not reflect the fact, which respondents clarified in further testimony, that they were discussing their present understanding. Respondents testified that they never intended to use clients’ funds and always believed there were sufficient funds on hand.
Charging these respondents with misappropriation of funds is akin to charging them with a crime. We would be hard-pressed to sustain criminal convictions against such disparately situated individuals based on the evidence that we have before us. The District Ethics Committee was not unaware of this problem and candidly acknowledged it: although finding it “inconceivable to this panel that respondents did not know that they were invading the funds of clients * * * [and] * * * using the funds of clients’ funds for their own benefit,” the Committee prefaced these comments by noting that “[i]t is the feeling of this *458hearing panel that a complete audit should be done in this matter to resolve any doubt that the Disciplinary Review Board may have.”
Were these allegations presented against an individual, it might be appropriate tó sustain a disbarment on a principle of gross neglect. See, e.g., In re Katz, 90 N.J. 272 (1982). But where we deal with such differentiated scope of responsibility, I think it is unfair to proceed on the theory of group ethical responsibility. Ontell, the accountant retained by the respondents specifically to examine the exhibits submitted to the District Ethics Committee and the affidavit of the auditor for the Office of Attorney Ethics, analyzed all of the documents and concluded that “[i]t cannot be stated that there has been an invasion and misappropriation of clients trust funds in the absence of a complete examination and audit by me and solely on the facts and analysis set forth in the Affidavit of Mr. D’Apolito.” It was in response to this affidavit that Mr. D’Apolito, the OAE’s auditor, stated that he would conclude only that respondents had not maintained appropriate books and records to account for clients’ funds. D’Apolito did not state that he found an invasion of clients’ trust funds. He did later qualify his affidavit to state, for example, that “[t]he facts stated in my [original] affidavit of March 21, 1983 relative to Samaro, Ocana and Lima would indicate that at the least [funds of] clients were put in jeopardy.”
I realize that it is very difficult to sort out the specifics of the charges as to each individual client's account. However, that responsibility is inescapable, especially where, as here, we seek to impose collective responsibility on the firm.
Because of the complexity of this matter, I would remand it to a Special Master to determine whether individual client’s funds were invaded, whether such invasion was a knowing invasion by the attorneys responsible, and the state of knowledge of each of the individuals involved.
*459For disbarment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI and STEIN —6.
Opposed — Justice O’HERN — 1.
ORDER
It is ORDERED that EDWARD L. FLEISCHER of MORGANVILLE, who was admitted to the bar of this State in 1969, be disbarred, and it is further
ORDERED that EDWARD L. FLEISCHER reimburse the Ethics Financial Committee for appropriate administrative costs; and it is further
ORDERED that EDWARD L. FLEISCHER be permanently-restrained and enjoined from practicing law; and it is further
ORDERED that EDWARD L. FLEISCHER comply with Administrative Guideline Number 23 of the Office of Attorney Ethics dealing with suspended, disbarred or resigned attorneys.
ORDER
It is ORDERED that H. BARRY SHULTZ of MORGAN-VILLE, who was admitted to the bar of this State in 1966, be disbarred, and it is further
ORDERED that H. BARRY SHULTZ reimburse the Ethics Financial Committee for appropriate administrative costs; and it is further
ORDERED that H. BARRY SHULTZ be permanently restrained and enjoined from practicing law; and it is further
ORDERED that H. BARRY SHULTZ comply with Administrative Guideline Number 23 of the Office of Attorney Ethics dealing with suspended, disbarred or resigned attorneys.
*460ORDER
It is ORDERED that JAY L. SCHWIMER, of MANALAPAN, formerly of MORGANVILLE, who was admitted to the bar of this State in 1973, be disbarred, and it is further ORDERED that JAY L. SCHWIMER reimburse the Ethics Financial Committee for appropriate administrative costs; and it is further
ORDERED that JAY L. SCHWIMER be permanently restrained and enjoined from practicing law; and it is further ORDERED that JAY L. SCHWIMER comply with Administrative Guideline Number 23 of the Office of Attorney Ethics dealing with suspended, disbarred or resigned attorneys.
Our Advisory Committee on Professional Ethics has provided that firms may draw against other clients' collected funds when mortgage and certified checks are presented at a real estate closing. Advisory Opinion 454, 105 N.J.L.J. 441 (May 15, 1980).