dissenting:
A Hearing Committee and the Board on Professional Responsibility have found that respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, and in conduct prejudicial to the administration of justice. We are required to accept the findings of fact of the Board unless they are unsupported by substantial evidence of record. Rule XI, Section 7(3). I have carefully reviewed the record, including the transcript of testimony, and I am satisfied that these findings are supported by substantial evidence.
As the majority opinion notes, there is no dispute that respondent personally received the sum of $1,210.10 from Mr. Henderson’s family at a point in time when he was representing Henderson, pursuant to the Criminal Justice Act, on a murder charge. The issue is rather whether that sum was paid for respondent’s legal services on that charge, as Henderson’s family claimed, or whether the money was given on account of a prior legal debt owed by Henderson to respondent’s wife, as respondent claimed.
The evidence shows that a first payment of $510.10 was made in respondent’s office a week after Henderson surrendered for prosecution on the murder charge. A second payment of $700.00 was made to respondent on the day of the murder trial in the courthouse (the same courthouse where respondent’s then estranged wife, a United States Magistrate, presumably had an office). The receipts signed by respondent made no reference to a prior debt or to his wife.
Henderson’s wife testified that, at the time of her husband’s surrender, she contacted respondent who told her he was no longer representing her husband under the Act. She then inquired if he would take the case for a fee; respondent said he would do so for $1,500.00 but wanted $500.00 within a few days and the remainder within sixty days. The majority, in attacking the Board’s findings, repeatedly avers that other members of the Henderson family did not testify that they heard respondent say that he was receiving money for his services in the murder case. But the majority agrees and the testimony shows, that Henderson’s father, his mother, and his sister thought they were pooling their resources (together with those of his wife, another sister and a cousin) to pay respondent to represent Henderson for murder. The father and the mother testified, respectively, that respondent said he wanted $500.00 “before he appeared in court,” or “down,” and the balance within sixty days. Henderson’s wife did affirm the existence of a prior debt to respondent’s wife but she, and his father, denied that respondent discussed the prior debt with them; his mother denied hearing a discussion of a prior debt.
Respondent denied that he was charging Henderson’s family for his services in the murder trial. He testified that the family insisted on closing out a $1,500.00 debt to his wife out of fear that its existence would trigger retaliation from him in the representation of Henderson. His testimony was supported by his daughter — who, as his legal secretary, said she was within hearing distance of the first office consultation. There was no documentary evidence supporting his story. The majority admits that the signed receipts, and respondent’s deposit of the sums in a checking account in which current revenues from his practice were also deposited, does “cast a shadow” on his story.
The testimony of the United States Magistrate, in my opinion, hardly corroborates respondent’s story to the extent implied by my colleagues. She confirmed the existence of the prior debt — a matter not in dispute except as to amount. She gave no indication that she, then estranged from respondent, was ever contacted by respondent with regard to its collection. She *15learned that “some money” had been collected by respondent when the alleged impropriety surfaced. Her trial records were not available and her memory dimmed through the passage of time. Her estimates of the initial amount of her fee, and the payments made on that fee were at odds with the recollection of her former partner as to general practice and the records he produced.
In my view, this record provides more than substantial evidence supporting the findings of both the Hearing Committee and the Board. We are thus required to accept the Board’s findings. I find it shocking that the majority of this court could conclude that the Board’s order must fail because its “conclusion relied upon reasons given by the hearing committee which are not founded upon substantial evidence in the record.” In this regard the very length of my colleagues’ analysis speaks more eloquently than I can.
Moreover, I think it most inappropriate for this court to usurp the function of the Hearing Committee * in judging the credibility of witnesses. In the circumstances of this case, the conclusion of the factfinder is important. See Bar Association of Baltimore City v. Marshall, 307 A.2d 677, 680-81 (Md.Ct.App.1973) “[Wjhile we can match one statement with another, witness by witness, from the record before us, on credibility we are not in as good a position as the [trier of fact] was to judge who is and who was not telling the whole truth.” In re Gamblin, 458 S.W.2d 321, 323 (Mo.1970). See also In re Lurie, 113 Ariz. 95, 546 P.2d 1126 (1976) (“we will nevertheless give serious consideration to the . . . findings and recommendations of the [trier of fact] . when the determination of ultimate facts rests on the weight and credibility of witnesses who have testified in person before that committee”); Greenbaum v. State Bar, 15 Cal.3d 893, 903, 126 Cal.Rptr. 785, 790, 544 P.2d 921, 926 (1976) (“when findings rest primarily on testimonial evidence, the decision of the local committee, which was in a better position to evaluate conflicting statements after observing the demeanor of the witnesses and the character of their testimony, must be given great weight”); Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616, 620 (1975), cert. denied, 424 U.S. 926, 96 S.Ct. 1139, 47 L.Ed.2d 336 (1976) (“credibility is an issue particularly within the province of the trier who views the testifying witness”).
I would adopt the recommendations of the Board, both as to suggesting discipline and restitution. See In re Wild, D.C.App., 361 A.2d 182, 184; Rule XI, Section 7(3). I do not agree that the proposed restitution to Henderson’s family must be rejected as a matter of law. The question here is not what the court could have authorized pursuant to statute if it had known that the indigent’s relatives were scraping together funds for payment on behalf of the indigent, but whether these relatives, having been defrauded by an attorney who accepted their money without authorization and in prohibition of that statute, should be made whole.
I would note finally that it has been suggested that there is an endemic inability on the part of the organized profession to regulate its own members. (See F. R. Marks & D. Cathcart, Discipline Within the Legal Profession: Is it Self-Regulation? (Research Contrib. No. 5, American Bar Foundation (1974).) Our Bar has made a good and conscientious beginning in its self-regulatory responsibility. (See separate statement of Associate Judge Gallagher on petition for rehearing en banc, In re Kleindienst, D.C.App., 345 A.2d 146, 152-54 *16(1975)). The manner in which this court treats the recommendations of the Board on Professional Responsibility is crucial to the integrity of the profession and the expectations of the public with respect thereto.
I respectfully dissent.
The majority lifts a paragraph from the Hearing Committee’s report and offers it as proof that the Committee attached some weight to a document not in evidence. (See p. 6 supra.) What the paragraph represents is the Commit- . tee’s thinking as to why this particular document would have had probative value if offered and admitted; The Committee’s “disclaimer” immediately follows the paragraph — a disclaimer noting that each member was able to disregard the “withdrawn” exhibits, was able to base findings on testimony given at the hearing, and was convinced that the findings would have been the same in any event.
The Board properly found that respondent had suffered no prejudice.