(dissenting).
I dissent because I think for several reasons the discipline in this case is too severe.
First, we have a lawyer here who has been in practice for forty-seven years. Except for a previous reprimand, his record is unblemished. The public reprimand occurred in 1986 for a minor probate delinquency, conduct totally unrelated to what was charged here. See Committee on Prof'l Ethics & Conduct v. Wunschel, 461 N.W.2d 840, 848 (Iowa 1990) (imposing reprimand even though lawyer had previously been reprimanded for probate delinquency). I think we can assume therefore that what occurred here was an isolated incident of misconduct, something that was out of character for Oscar Jones and therefore not likely to reoccur.
Second, Delbert testified that he filed this complaint, not because he thought Oscar had defrauded him, but because Delbert thought the complaint would result in a return of his money. Had Oscar paid Delbert back, this case would never have seen the light of day.
Third, what we have here is a scam perpetrated, not by Oscar, but by Currie. *10In a sense, Oscar was just as much a victim as Delbert. Both Delbert and Oscar naively believed Currie would come through.
Fourth, Delbert was not as unsophisticated as the majority paints him out to be. I think it is clear from the record that Delbert was no. novice when it came to risky ventures in which he could make some “fast money.”
Fifth, Oscar cooperated fully from the beginning. After Delbert filed a complaint with the Polk County Bar Association Grievance Committee, Oscar wrote a lengthy letter setting out the details surrounding the transaction. He also cooperated with the Board of Professional Ethics and Conduct after Delbert’s complaint was forwarded to it.
Sixth, at the disciplinary hearing Oscar made no lame excuses for his actions. He admitted all the details of the transaction. He told the commission that, if his actions were wrong, he was ready to accept whatever punishment the commission thought was appropriate. His only denial was to the claim that he had defrauded or aided Currie in defrauding Delbert.
Last, I think the misconduct here is no more egregious than what occurred in Wunschel, a case in which we only reprimanded the attorney, who had been practicing law for thirty-five years. Id. at 848. The commission had recommended a six-month suspension, a recommendation the lawyer on appeal claimed was “unduly severe.” Id. at 844, 848.
As we said in Wunschel, “the case presents a lesson in how a prudent lawyer ought not to act when consummating a $2 million real estate transaction with strangers who appear to be unrepresented by counsel.” Id. at 841. In finding that the attorney violated DR 1-102(A)(4) by engaging in conduct amounting to misrepresentation, we said:
Nevertheless, substantial evidence in the record supports the Commission’s conclusion that Wunschel misled the Noyes “into passive trust ... to secure an unfair gain for himself.” Interpreting DR 1 — 102(A)(4) in its broadest sense, Wunschel effectively misrepresented his role in this transaction. Even absent an intent to deceive, an attorney’s failure to recognize and correct potentially misleading situations is unethical. Given the size and complexity of the transaction, and his personal stake in it, Wunschel should have bent over backwards to assure that the Noyes had someone looking out for their interest. He did not do so. Instead, he at b.est kept silent on the question of whether the Noyes should seek independent counsel. Like the Commission, we infer from the record that Wunschel perceived a personal advantage in the Noyes’ ignorance.
Id. at 847-48.
It is beyond me how in Wunschel we could reject a commission’s recommendation of a six-month suspension in favor of a reprimand, and in Oscar’s case, which I think is no more egregious, we reject a commission’s recommendation of reprimand in favor of a two-month suspension. To me there is something not quite right about this picture.
Oscar testified he was retiring. He was operating out of his home in the process of winding down his practice. We should let this lawyer retire without besmirching an almost unblemished record of forty-seven years with the type of discipline that I feel is unjustified.
I agree with the commission’s recommendation of a reprimand, and that is what I would impose. However, I would strongly suggest to Oscar that he pay Delbert the $5000 and the interest he incurred. However innocent Oscar might think his actions were, the fact remains that, but for his representations and omissions, Delbert would probably have said he was not interested either.
LARSON and NEUMAN, JJ„ join this dissent.