dissenting.
Thirteen years after the fact, the Court disbars an attorney essentially because he cannot reconstruct his trust accounts for the year 1986. That result is unfair, unjust, and conflicts with our precedent.
The Decision Memorandum of the District III B Ethics Committee (DEC) best summarizes the facts and the law.
The OAE has produced clear evidence that the portion of the Bayne settlement funds which were deposited in Respondent’s trust account and retained by Respondent for disbursement to medical providers was neither disbursed to those providers nor retained in Respondent’s trust account. The trust account balance was $1,130.71 on July 31,1986, when it should have been at least $12,727.86 to cover the medical providers’ bills. At that same time, as best the records can be reconstructed, checks were being written by Respondent to Respondent as well as others (who were not the medical providers). Respondent has testified that he has no recollection of why he wrote checks to himself and did not pay the medical providers. He excuses this oversight by reference to the passage of time, sloppy bookkeeping and ill health.
At least in part due to the passage of time, the OAE has no contrary evidence to present regarding Respondent’s state of mind in 1986. It is clear that a misappropriation occurred in 1986. What is not dear is whether this was a knowing or a *197negligent misappropriation. Evidence of Eespondent’s state of mind, that he knew that he misappropriated his client’s funds rather than negligently invaded the trust, must be clear and convincing. In re Konopka, 126 N.J. 225, 233, 596 A.2d 733 (1991). Therefore, this Panel is not able to conclude that there was a knowing misappropriation of client funds in 1986.
The Report and Recommendation of the DRB, a 5-4 decision in which both the Chair and Vice Chair voted against disbarment, is disturbing and has a detached feeling to it. The DRB refers to itself in the third person, not in the first. Rather than to say, “we find by clear and convincing evidence that respondent knowingly misappropriated client funds,” the DRB’s Report states, as though the DRB were referring to some other body, that “the Board determined that, because respondent had very few trust account matters and maintained a running balance in his checkbook, he had to be aware that he was spending his client’s funds.”
Also, the main premise of the DRB Report seems flawed to me. The Report recites that “... within two weeks of distributing the settlement funds to his client, respondent invaded the [escrow] funds----” To begin with, it is simply not true that respondent had “very few trust account matters.” In addition, the DRB infers that the running balance on Cavuto’s check stubs demonstrates that he knew that he was invading client funds. The problem with that analysis is that we have a series of checks but not a series of bank statements. The record simply does not disclose whether client funds were actually invaded. There may have been deposits in the trust account sufficient to cover the withdrawals.
Who should bear the burden of the absence of bank records dating back that far? The OAE says that respondent should be presumed to have had knowledge that he was invading client funds. Presumptions of criminal intent have long been disfavored in the law. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). It is to be remembered that in In re Fleischer, 102 N.J. 440, 449-50, 508 A.2d 1115 (1986), it was not bad bookkeeping that caused the attorneys in the firm to be disbarred, but the fact that they admitted that they had pooled their trust *198and business accounts in order to meet their operating expenses. They knew that they were invading client funds. I realize that much is expected of lawyers, but a lawyer should not have to prove his innocence thirteen years after the fact. Absent clear and convincing evidence of a knowing misappropriation, a suspension is sufficient discipline.
I therefore dissent.
For disbarment — Chief Justice PORITZ and Justices HANDLER, POLLOCK, GARIBALDI, STEIN and COLEMAN — 6.
For suspension — Justice O’HERN — 1.
ORDER
It is ORDERED that ANTHONY J. CAVUTO of MOUNT HOLLY, who was admitted to the bar of this State in 1966, be disbarred and that his name be stricken from the roll of attorneys of this State, effective immediately; and it is further
ORDERED that ANTHONY J. CAVUTO be and hereby is permanently restrained and enjoined from practicing law; and it is further
ORDERED that all funds, if any, currently existing in any New Jersey financial institution maintained by ANTHONY J. CAVU-TO, pursuant to Rule 1:21-6, be restrained from disbursement except upon application to this Court, for good cause shown, and shall be transferred by the financial institution to the Clerk of the Superior Court who is directed to deposit the funds in the Superior Court Trust Fund, pending further Order of this Court; and it is further
ORDERED that ANTHONY J. CAVUTO comply with Rule 1:20-20 dealing with disbarred attorneys; and it is further
ORDERED that ANTHONY J. CAVUTO reimburse the Disciplinary Oversight Committee for appropriate administrative costs.