dissenting:
Although this is obviously a close case— one-sided ones do not come to us with four members of the Board on Professional Responsibility having concluded that a lawyer should be disbarred and with four others having voted for suspension — I am of the opinion that disbarment is too harsh a sanction on these particular facts. I reach that conclusion largely for the reasons stated by Charles Donnenfeld, Esq. in the opinion which reflects his own views and the views of three other members of the Board. A copy of that opinion is attached hereto and, subject to a single caveat,1 it is incorporated into this dissenting opinion by reference.
*204Members of the Board are bound by pri- or decisions of this court. When we sit en banc, we are not. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971). I therefore think it appropriate to do what Mr. Donnenfeld and his colleagues were in no position to do, namely, to criticize some of our precedents. In my opinion, the court en banc should overrule in part or modify at least In re Buckley, 535 A.2d 863 (D.C.1987).
I
THE BUCKLEY DECISION
The four members of the Board who recommended disbarment relied heavily on this court’s 2:1 decision in Buckley. Chief Judge Rogers has assembled an imposing array of authorities — many of them involving far more extensive wrongdoing than that here presented — in support of the position that Addams should be disbarred, but she too relies significantly on Buckley. Whether or not disbarment of the respondent in Buckley was appropriate — and, like Judge Mack, who dissented, I have some reservations on that score — I think that we should reject at least some of the language in the Buckley opinion.
A. Equating the inequatable: corrupt intent makes a difference.
In Buckley, the majority rejected as “rather imprecise and unhelpful” the Board’s view that it was proper, for purposes of determining what discipline should be imposed, to differentiate between “corrupt” and “non-corrupt” misappropriations. 535 A.2d at 866. Citing In re Harrison, 461 A.2d 1034, 1036 (D.C.1983), the court effectively held that there was no difference for purposes of sanction between a lawyer’s temporary use of his client’s funds on the one hand and outright theft on the other. Id. This apparently means that a lawyer who, awaiting receipt of a government check on Tuesday, borrows $100 on Monday from a client’s account and returns that sum on Tuesday, should be subject to the same sanction as a practitioner who steals $50,000, spends it to support an extravagant lifestyle, and thereafter covers his tracks.
The basic purpose of disciplinary proceedings is to protect the public, the courts, and the legal profession from the depredations of unethical practitioners. See, e.g., In re Haupt, 422 A.2d 768, 771 (D.C.1980).2 Sanctions are also designed to deter other attorneys from engaging in similar misconduct. In re Reback, 513 A.2d 226, 231 (D.C.1986) (en banc). Even temporary misappropriation of a client’s funds is a very serious matter, but it surely cannot be gainsaid that the public needs greater protection from the corrupt thief than from the non-corrupt but culpable cutter of corners who never intended to steal. That is why, in selecting the proper sanction for other violations of the Code of Professional Conduct, we have found the presence or absence of a fraudulent intent or state of mind to be so important. See, e.g., In re Hutchinson, 518 A.2d 995, 1000 (D.C.1986).
“Our purpose in imposing discipline is not to visit punishment upon an attorney.” In re Kersey, 520 A.2d 321, 327 (D.C.1987); In re Hutchinson, 518 A.2d 995, 1000 (1986). Nevertheless, in determining what sanction is appropriate, we must consider “the moral fitness of the attorney, to the extent that we can discern it.” Hutchinson, supra, 518 A.2d at 1000. Although the unauthorized short-time borrower who intends to return what he borrowed is no paragon of virtue, the moral gravity of his conduct obviously pales in comparison to the wickedness intrinsic in outright theft from a client who has placed his trust in his treacherous attorney.
The majority in Buckley probably did not mean to suggest that temporary and non-corrupt misappropriation is just as bad as its permanent and corrupt counterpart. It did hold, however, that the former ought to be punished just as harshly as the latter; that taking property without right will incur the same consequences as grand larce*205ny. I cannot agree that violations so lacking in moral equivalence may properly be treated as one and the same. I have no problem with applying a rebuttable presumption of disbarment even in a “temporary borrowing” case, but I think that the presence or absence of an intent to steal is an important factor in determining whether the presumption has been rebutted.3
B. The spotless record as irrelevant: rig- or selectively applied.
In Buckley, the court also effectively held that, even in “non-corrupt” misappropriation cases, conventional mitigating factors will not justify less severe discipline. The court acknowledged that the “ultimate harm suffered by [Buckley’s] client was relatively slight,” that Buckley had been cooperative and candid during the Board’s investigation,4 and that he had an “otherwise clean disciplinary record of thirty years.” 535 A.2d at 866. Buckley being a misappropriation case, however, these circumstances were not viewed as providing support for a sanction less severe than disbarment.
In In re Reback, 513 A.2d 226 (D.C.1986) (en banc), the respondent attorneys, seeking to conceal from their client that her divorce complaint had been dismissed by the court because the attorneys had negligently failed to place it at issue, forged the client’s signature on a new complaint, secured a notarization of the false signature, and filed a new complaint without advising the client. The client nevertheless learned of these events and discharged the attorneys. Disciplinary proceedings ensued. The Hearing Committee recommended “public censure” as the appropriate discipline. A majority of the Board proposed suspensions of a year and a day for the senior lawyer and thirty days for the less experienced one.5 This court, sitting en banc, ordered that each be suspended for six months. Apparently, the sanction of disbarment was not considered, in spite of the patently fraudulent character of the respondents’ conduct. In concluding that suspension for as long a period as a year and a day was not necessary, this court cited respondents’ contrition, their cooperation with the investigation, the fact that they had returned the client’s fee, and the lack of any significant injury to the client. The court placed its greatest emphasis, however, on respondents’ status as first offenders:
Most important is the fact that both Reback and Parsons have had unblemished records of professional conduct during 30 and 15 years of practice, respectively. This factor weighs heavily in favor of imposing upon them the lightest sanction that will serve the purposes of Bar discipline.
Id. at 233 (emphasis added).
In my opinion, the respondents in Reback sullied the name of our profession, and more severe discipline might well have been in order. Nevertheless, if one views the case in the context of the purposes of the disciplinary process, the court was surely right in concluding that a respondent’s prior record must be given significant consideration. I believe that this holds true generally, at least in those cases in which the underlying violation does not call for automatic disbarment. An attorney who commits a single violation which represents an isolated aberration from the norm of ethical professional conduct is far less likely to be a danger to the public, the court, or to the Bar than a colleague who has a significant record of prior misconduct. From the perspective of moral fitness, the recidivist is uniformly viewed as more culpable, more dangerous, and more *206deserving of severe sanctions than is the first offender.
It may be that an unblemished record, standing alone, ought not to preclude disbarment in a misappropriation case. Perhaps this should be true even where the misappropriation was “non-corrupt,” although one might reasonably argue for a contrary result. But where, as here, there are significant case-specific mitigating factors, I think that basic fairness requires us to accord considerable weight to Addams’ favorable prior record.6
C. “From this moment on!”
In In re Hines, 482 A.2d 378 (D.C.1984) (per curiam), the Board on Professional Responsibility stated in its report that
[T]he District of Columbia Court of Appeals has not yet ruled that misappropriation of the sort engaged in in this case will ordinarily result in disbarment. We think that such conduct should result in disbarment, but only after the bar has been put on notice by the District of Columbia Court of Appeals that misappropriation of client funds in cases involving more than simple negligence will ordinarily result in disbarment even though the proof does not rise to the level of willful corruption.
Id. at 386 (emphasis added). This court looked with favor on the Board’s recommendation, and proclaimed, presumably without musical accompaniment, that
from this moment on, in disciplinary cases involving attorneys who misappropriate their clients’ funds, disbarment will be the norm unless it appears that the misconduct resulted from nothing more than simple negligence.
Id. at 386-87 (emphasis added). Although Hines had commingled the funds of two of his clients with his own money, and even though he was found to have engaged in conduct involving dishonesty, he was not disbarred. Rather, the court ordered that Hines be suspended for two years.
I think it obvious from the sanction which was ultimately imposed that the four underscored words from the popular song were included in the Hines opinion for a reason. “From this moment on,” the Bar would be on notice of a new, tougher policy. Earlier cases, by necessary implication, would be governed by the previous and less draconian one. This is the only reasonable explanation for the outcome, for the respondent in Hines was suspended, not disbarred.
In Buckley (and in the present case as well) the violations predated the Hines decision. The court opined in Buckley, supra, 535 A.2d at 867, that “Hines did not announce a new rule with exclusive pros-pectivity,” and ordered the respondent disbarred. The court also noted, correctly in my view, that “Hines created no right to be free of the risk of disbarment for misappropriation conduct preceding that decision.” In my opinion, however, the majority opinion in Buckley “fudged” the proposition, unambiguously established by Hines, that sanctions for conduct occurring after the Bar was apprised of the Hines decision would be more severe than those previously imposed for like violations. A presumption of disbarment would apply prospectively to cases which were not previously subject to it. I think that the respondents in Buckley and in the present case were entitled under Hines to have their sanction determined under pre-Hines standards. I do not think that this occurred.7
*207II
MITIGATION AND AGGRAVATION
My colleagues in the majority take the position that misappropriation cases differ from other proceedings, that putting a client’s money to the attorney’s own use is sui generis, and that mitigating factors such as lack of corrupt intent, an exemplary prior record, and the absence of meaningful injury to the client ought not to relieve the lawyer from disbarment. Besides Buckley, my colleagues rely largely on In re Quimby, 123 U.S.App.D.C. 273, 359 F.2d 257 (1966) (per curiam), and In re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979), and also cite a number of other decisions. I have no quarrel with the sanction of disbarment on the facts of those cases, nor do I challenge the proposition that a lawyer’s theft from his client is ordinarily so indefensible a betrayal of trust that the most serious consequences should follow. I believe, however, that the fact patterns in Quimby, Wilson and other cases cited differ substantially from the situation which obtains here, and that the sweeping language in some of these opinions does not fit this case.
Financially embarrassed as a result of an unsound investment in a personal business venture, Quimby withdrew a total of $18,-000 from the accounts of two incompetents, which accounts had been entrusted to him. He converted the money to his own use. The court concluded that Quimby’s conduct constituted embezzlement and evidenced moral turpitude. It held that, under those circumstances, “disbarment should ordinarily follow as a matter of course,” notwithstanding Quimby’s “long and otherwise unstained record before the bar.” Quimby, supra, 123 U.S.App.D.C. at 274, 359 F.2d at 258. The result evidently hinged on the court’s assessment of the respondent’s conduct as being characterized by moral turpitude. This differentiates the case from Buckley and from the present ease. As I understand Buckley and the majority opinion here, a corrupt intent — the practical equivalent of moral turpitude — need not be shown.
In Wilson, the respondent attorney was the subject of numerous disciplinary complaints. Two of them involved misappropriation. In one case, the attorney had retained $23,000 — the proceeds of the sale of a house — and failed for two years to turn the money over to his client.8 In the second, he had forged his client’s name on a $4300 check made to the client’s order, deposited the proceeds in his own trust account, and never returned the money. He had also lied to clients and failed to cooperate in the ethics inquiry. In my opinion, no reasonable person could fail to conclude that disbarment was the appropriate remedy on these facts.
In a thoughtful and literate opinion by Chief Justice Willentz, however, the court in Wilson went well beyond the facts presented by the case at hand and attempted to fashion a rule of general application. The court discussed a number of possible mitigating circumstances which were often presented in disciplinary proceedings based on misappropriation of client funds,9 and effectively rejected them all. The court concluded that
recognition of the nature and gravity of the offense suggests only one result— disbarment. Such conduct is of so reprehensible a nature as to permit of only one form of discipline.
Wilson, supra, 81 N.J. at 455, 409 A.2d at 1155 (citation and internal quotation marks omitted). Some of the court’s language *208was quite sweeping,10 although none, in nay-view, addressed the rather unique situation in the present case.
The Quimhy and Wilson opinions ought not to be removed from their moorings. As this court explained, in Kraft v. Kraft, 155 A.2d 910, 913 (D.C.1959):
It is well to remember that significance is given to broad and general statements of the law only by comparing the facts from which they arise with those facts to which they supposedly apply.
Accord, Armour & Co. v. Wantock, 323 U.S. 126, 132-33, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944); see also Tydings v. Tydings, 567 A.2d 886, 895 (D.C.1989) (concurring opinion).
The present case is strikingly different from Quimby and Wilson and, indeed, from all of the authorities on which the majority relies, because Addams’ client owed him money,11 had no objection to his taking it, and was still substantially indebted to him after Addams’ deed was done. Addams’ client was satisfied with his services, and would apparently have agreed to his withdrawal of the money if Addams had asked her. Indeed, she did agree to a withdrawal for similar purposes the following year.12 Not only was the client delighted with Addams’ representation,13 but the complaint against Addams was made by the apparently vengeful litigant whom Addams had'defeated on the client’s behalf. I find the six mitigating factors enumerated at pp. 211-212, infra, in the opinion of Mr. Donnenfeld quite compelling. Mr. Donnenfeld demonstrates that, although this was a case of misappropriation, it was an extraordinary one to which the “ordinary” sanction should not apply.
It is one thing to steal money from someone, leaving the victim impoverished. It is quite another to appropriate funds which are only a small portion of what the “victim” owes you, when the debt demains substantial even after the improper withdrawal and the evidence points to the conclusion that she14 would have consented in any event.
In Wilson, supra, the court expressed concern, in ordering disbarment, about “the pressures on the attorney that forced him to steal.” 81 N.J. at 460, 409 A.2d at 1157. The court suggested, however, that concern should be shown for the defalcating lawyer’s victim, for
the sympathy engendered by the plight of the attorney which caused him to steal is offset by the fact that he did so, most often, without regard to the possibility *209that he might be inflicting the same misery, or worse, on his innocent client.
Id. at 461 n. 6, 409 A.2d at 1157 n. 6. In the present case, Addams was not inflicting misery on his client. She never claimed that he was. When he had completed the misappropriation, she still owed him a lot of money and remained, to put it in the vernacular, well ahead of the game.
My colleagues in the majority quote People v. Radosevich, 783 P.2d 841, 842 (Colo.1989) (en banc), for the proposition that conversion of client funds “destroys trust essential to the attorney-client relationship, severely damages the public’s perception of attorneys, and erodes public confidence in our legal system.” So it does. In the present case, however, the trust between lawyer and client was not destroyed. It appears that the client still trusted Addams at the time of the hearing, when all of the facts had been disclosed. To say that this case represents a kind of betrayal of trust which cases like Radosevich were designed to address seems to me to extract the rule of those cases from the context for which it was designed.15
It is true that Addams compounded his misappropriation by attempting to cover it up. He did so both by presenting a false accounting and by providing disingenuous and mutually contradictory explanations of his conduct during the disciplinary proceedings. Unfortunately, the instinct for self-preservation at any cost exerts so much pressure on a wrongdoer seeking to avoid discovery that considerations of reason and honor are often relegated to a subordinate role. Addams was not the first wrongdoer to try to conceal his misdeeds in less than forthright fashion in a vain effort to forestall exposure and disgrace. Human beings under pressure do not always act as nobly as they might on a calmer day when the sky is serene and they feel no all-encompassing apprehension of impending doom. But while judges can surely understand why he who has transgressed may lie when cornered, we cannot condone such conduct, especially on the part of those who have east their lot with a noble and honorable profession and are bound to uphold its standards.
Unlike Mr. Donnenfeld and his colleagues, I am of the opinion that Addams substantially aggravated his initial violation when he was, to put it charitably, less than forthright in explaining it. Indeed, his attempted deception of his client with a false accounting and by concealment of his withdrawals has led me to pause for more than a moment before casting my dissenting vote. Deplorable as the cover-up was, however, to me it was not bad enough to convert this particular misappropriation into an offense warranting the disbarment of an attorney with a previously unblemished record. Rather, I believe that the mitigating factors which I have enumerated — Addams’ clean record, the lack of significant injury to the client, and the money that the client owed him — substantially outweigh his human but culpable reaction to the discovery of his misdeed.
I might conclude otherwise if it were our uniform practice to deal sternly with dishonorable conduct on the part of members of an honorable profession. But recognizing that every case is unique, and that comparisons are especially difficult when different kinds of ethical violations are being placed under the scrutiny of the same judicial microscope, I am nevertheless of the opinion that Addams’ disbarment is very harsh medicine when compared with the far less draconian sanctions imposed in other recent cases in which the attorney’s conduct was at least as dishonorable. See, e.g., Hutchinson, supra;16 Reback, sup*210ra;17 In re Sandground, 542 A.2d 1242 (D.C.1988) (per curiam);18 and In re Kersey, 520 A.2d 321 (D.C.1987).19 I appreciate the majority’s thesis that misappropriation cases are different, but I think that resort to that principle to disbar Addams for the particular misappropriation disclosed on this unusual record is disproportionate and, in the final analysis, lacking in fairness and balance.
I share the majority’s concern that the public’s trust in the legal profession could be eroded if we were unduly lenient in misappropriation cases. But given the client’s satisfaction with Addams, the fact that on balance he did her so much more good than harm, and the source of the accusations against Addams — a defeated and apparently disgruntled adverse litigant — I do not believe that reasonable members of the public who were apprised of all of the relevant facts would have less confidence in the profession, or in this court’s supervision of it, if Addams were suspended for some significant period rather than disbarred.
I respectfully dissent.
DISTRICT OF COLUMBIA COURT OF APPEALS BOARD ON PROFESSIONAL RESPONSIBILITY
Bar Docket No. 270-85 SEPARATE OPINION OF MEMBERS COHEN, KEEP, KAISER AND DON-NENFELD AS TO RECOMMENDED SANCTION
In its Buckley decision 535 A.2d 863 (D.C.1987), the Court reaffirmed its previous statement in In re Hines, 482 A.2d 378 (D.C.1984), that “disbarment will ordinarily be the sanction” in misappropriation cases. However, the Court went to pains to “reit-. erate” that “in the wake of Hines there is no per se rule regarding disbarment.” The Members joining in this separate opinion feel that their colleagues, in urging disbarment, are applying Buckley in a per se manner and ignoring its instruction that we are to consider “extenuating or aggravat*211ing circumstances” before imposing sanction in misappropriation cases.
We feel that a fair consideration of the mitigating factors of the present case justifies a suspension of a year and a day, rather than disbarment. A suspension of a year and a day is justified, first, when measured by the general criteria for imposing discipline on lawyers, as articulated in In re Reback and Parsons, 513 A.2d 226 (D.C.1986) (en banc). The Court there noted that maintenance of the integrity of the profession, protection of the public and the courts, and deterrence were the principal factors to be considered in imposing discipline. Id. at 231. Mitigating and aggravating circumstances surrounding the misconduct, and the attorney’s previous disciplinary record are also factors to be considered. Id.
Applying these criteria to this case, there is little question that funds of a client (or their legal equivalent)1 were taken without contemporaneous authorization, and an inaccurate accounting as to those funds was presented to the client. These actions persuade us that the Respondent did not conduct himself at the level of integrity expected of members of the Bar, and that he should be required to demonstrate his fitness to practice law before being allowed to resume practice in the future. Because this case involves an attorney’s handling of funds of a client, a role which attorneys are frequently called upon to perform and in which the public must have full confidence, protection of the public and deterrence are also disciplinary factors suggesting a lengthy suspension.
We see no aggravating circumstances in this case and, in mitigation, note the following:
1.There was no commingling; all of the client’s funds were properly deposited in a trust account.
2. The withdrawals were made to pay a small portion of legal fees that were undisputedly owed to Respondent.
3. Several months after the withdrawals were made, the client approved of Respondent’s use of some of the trust funds to pay overdue legal fees; based on her supportiveness of Respondent expressed at the hearing, the client would likely have authorized the withdrawals at the time they occurred had she been requested to do so then.
4. The client, the supposed “victim” of the misappropriation, suffered no harm whatever. In fact, she was completely satisfied with Respondent’s services, and did not dispute the fees owed him or the propriety of his withdrawals.
5. The misconduct was limited to a single set of facts concerning a single client.
6. Respondent has practiced law for 22 years without any disciplinary violations.
These circumstances persuade us that the extreme remedy of disbarment is inappropriate.
We also note in mitigation that the client was not the complainant in this case and, as noted above, expressed her concurrence in Respondent’s withdrawals from the trust fund. The complaint was the defendant in the lawsuit that Respondent brought on Mrs. Jackson’s behalf, in which suit the Respondent was ultimately successful. The suit resulted in having a promissory note voided, thereby saving Mrs. Jackson a substantial amount of money — all to the detriment of the complainant.
In July of 1985, the complainant complained to Bar Counsel that Respondent issued a worthless check almost three years earlier (September 11, 1982), drawn on his trustee account. The cheek was *212made good on October 7, 1982, less than a month after its issuance. In the course of its investigation, in which Respondent cooperated, Bar Counsel found that Respondent had withdrawn funds from the monies he was holding in trust and had applied those funds to overdue legal fees. As of the date of the hearing, Respondent’s client continued to owe Respondent legal fees and did not wish to see Respondent injured by reason of his withdrawals from the trust account. Tr. 27-28.
Our colleagues on the Board suggest that our reliance on these mitigating factors is only an effort to probe the degree of “corruptness” of Respondent’s intent with respect to the misappropriation. It is not. To fail to consider these factors in recommending a sanction would be tantamount to adopting the mechanistic per se approach that the Court expressly eschewed in Buckley and Hines. We are not parsing degrees of “misappropriation”; we are, rather, determining how severely this Respondent should be sanctioned for his misconduct.
In terms of the consistency of our recommended sanction with other disciplinary cases, we believe that Respondent’s misappropriation is more comparable to that involved in In re Cefaratti, M-140-82 (D.C. June 28, 1983), than to the misappropriations in In re Quimby, 123 U.S.App.D.C. 273, 359 F.2d 257 (1966); In re Burka, 423 A.2d 181 (D.C.1980); and In re Burton, 472 A.2d 831 (D.C.1984), in which disbarment was ordered. Cefarrati involved the Respondent’s unauthorized use of funds entrusted to him. Cefarrati’s former client, a corporation, had provided $15,000 to secure payment of a pension to a former corporate employee. Cefarrati had limited authority to invest the funds. Nevertheless, he withdrew $5,000 from the account, considering the withdrawal a loan and repaying the money with interest. However, there was no documentation supporting the loan and no consent had been obtained from the client for the withdrawal. The Court adopted the Board’s recommendation for a year and a day suspension.
In cases in which disbarment was ordered for misappropriation, there were circumstances present which distinguish them from this case. In In re Quimby, 123 U.S.App.D.C. 273, 359 F.2d 257 (1966), the attorney misappropriated funds from the trusts of two incompetent war veterans. The attorney had no colorable right to the funds, using them instead to ease financial stresses created when a personal investment became unsound. In In re Burton, 472 A.2d 831 (D.C.1984), two separate disciplinary proceedings, involving repeated misappropriation and deceit, resulted in disbarment. And in In re Burka, 423 A.2d 181 (D.C.1980), an attorney made 15 unauthorized withdrawals from the account of an adult ward, totalling $41,000 and had no explanation whatever for the misappropriation.
In re Buckley, supra, is the Court’s most recent misappropriation case. The attorney there failed to disburse approximately $5,300 received in settlement of a personal injury claim, and used those funds for personal purposes. Two years later, only after a complaint was filed with Bar Counsel, the attorney made proper distribution of the funds. The Court ordered the attorney disbarred.
What distinguishes this case from Buckley and the other disbarment cases is that the Respondent here was owed the money he withdrew from the trust account. In none of the other cases did the attorney have any claim to the misappropriated funds. Here, had the fund withdrawals occurred at the times shown on Respondent’s accounting to his client in March 1983, there would have been no misappropriation because the withdrawals (to pay overdue legal fees) would have been authorized by the client. Respondent’s misconduct occurred because he took the money first, and got permission later. We do not view this as an insignificant lapse of judgment or inadvertence, but it causes us to pull back from recommending the ultimate sanction of disbarmént.
In sum, based on the mitigating factors in this case — seen in the light of the cited precedents — we do not feel that this is a *213situation where the “ordinary” misappropriation sanction should apply. We feel a suspension for a year and a day will satisfy the public policy objectives of the disciplinary system in a manner consistent with the Court’s recent holdings.
/s/ Charles R. Donnenfeld/Bec Charles R. Donnenfeld
June 30, 1988
Ms. KAISER, Ms. KEEP and Mr. COHEN join in this opinion.. Mr. Donnenfeld states in his opinion, infra at p. 211, that "we see no aggravating circumstances in this case.” He also recognizes, on the same page, that "an inaccurate accounting as to those funds was presented to the client.” I would regard Addams’ attempt to cover up his wrongdoing by this false accounting as a substantial aggravating factor, even though human nature is such that many trapped miscreants reflexively react in this manner. See, pp. 209-210, infra. But see In re Buckley, 535 A.2d 863, 866 (D.C.1987) (attorney ordered disbarred despite his "candid manner with respect to detailing his various actions”). Although the deception of the client occurred well after the misappropriation which Addams was attempting to conceal, Mr. Donnenfeld appears to have treated it as an integral part of Addams’ violation, rather than as an aggravating factor.
. Cf. In re Wilson, 81 N.J. 451, 456, 409 A.2d 1153, 1155 (1979) ("the principal reason for discipline is to preserve the confidence of the public in the integrity and trustworthiness of lawyers in general”).
. I recognize that many respondents may and do claim that they intended to return funds which they misappropriated. Whether such a claim is credible in a particular case is a determination to be made initially by the trier of fact, ordinarily the Hearing Committee.
. Addams was not at all candid during the investigation of his violations, however. He can therefore take no comfort from my view that the court in Buckley should have accorded more significance to the respondent's candor after the fact.
.The junior respondent dealt with the client. The more experienced one took responsibility for the case.
. For reasons discussed below at p. 208, I also believe that the lack of any significant injury to the client ought to be a significant factor in determining whether the presumption of disbarment has been rebutted.
. I agree with the majority that the sanctions to be imposed for an attorney's dishonorable conduct are not circumscribed by ex post facto restrictions. See maj. op. at 198 n. 19. I simply suggest that retroactive application of a new rule which was designed to apply "from this moment on” renders those words superfluous and changes the basic thrust of this portion of the Hines decision. The violations in Buckley, like those in Hines, predated the decision in Hines. The respondents in the two cases were similarly situated. The same standards ought to have been applied to them, and to Addams as well.
In his concurring opinion, ante at 200-201, Judge Ferren says that Hines announced a new rule only for "reckless misappropriation cases.” I think he is cutting it too fine. As I read the *207Hines opinion, the remedy of disbarment was to apply presumptively "from this moment on” in cases involving more than simple negligence “even though the proof does not rise to the level of willful corruption.” 482 A.2d at 386. (Emphasis added.) The court’s stated focus was on the underscored language. In my view, the "prospective only” limitation to the applicability of the Hines presumption fits the present case.
. Wilson ultimately paid the client after the ethics complaint was filed. He never accounted for the location or use of the funds in the interim.
. E.g., restitution after apprehension, an intent to "borrow" rather than to steal, the inexperience (or outstanding career) of the lawyer, the lawyer’s financial problems, etc.
. The passage quoted in the text above suggests that the court intended to adopt a per se rule requiring disbarment in all misappropriation cases.
. In Hines, the client also owed the respondent money for his services, but the circumstances were significantly different from those presented here. See the court’s discussion of the issue, 482 A.2d at 380 & n. 7 & n. 8. In any event, there were violations by the respondent vis-a-vis several clients, there was no indication of client satisfaction, and Hines was suspended, not disbarred.
. I agree, however, with the statement by the Board in the unanimous portion of its Report that
it is not clear whether the funds belonged to [the client] or to the noteholder at the time of the misappropriation. In either event, Addams had no right to the money.
Even if the client's testimony were to be treated as a retroactive after-the-fact consent, the withdrawal would still have been improper.
It is worth noting, though, that the trust account in question consisted of money provided to Addams by the client, albeit for the purpose of making any necessary payments to the note-holder, not to her attorney. To the extent that Addams knowingly took somebody else’s money, he may well have viewed it as belonging to his client, the person from whom he got it and who owed him a much larger amount. In any event, there was no finding or proof that Addams thought he was converting the noteholder’s money.
. In Reback, supra, 513 A.2d at 232, this court placed considerable emphasis on the lack of harm suffered by the client as a result of the respondents’ improper conduct. The court stated that "of course, if respondents’ dishonesty had led to adverse consequences, even if temporary, or would have done so if undiscovered, that would put them at far greater risk of severe discipline.” Id. at n. 6.
. Admittedly, however, there is no indication that the noteholder, a potential claimant to the money, would have consented to the withdrawal.
. In Radosevich, the court quoted the American Bar Association's Standards for Imposing Lawyer Sanctions § 4.11 (1986):
Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
783 P.2d at 842 (emphasis added). I question whether the italicized language fits the present case.
. In Hutchinson, the respondent lied under oath to a federal administrative agency. The Board recommended that he be suspended from practice for a year. This court suspended him for six months. 518 A.2d at 1000-02.
. In Reback, as described above at pp. 205-206, the respondent attorneys forged their client’s signature and secured notarization of the false signature. They also lied to their client. Each received a six month suspension.
. In Sandground, the respondent knowingly assisted his client in the concealment of his assets in connection with a discovery request in a pending divorce suit. He did so, among other ways, by taking title in his own name to a home being purchased by his client. He wrote to his client that this would be “a secret transaction because of the matrimonial situation, and as soon as the divorce is final, the property will be transferred to you and all documents entered into will be destroyed.” In spite of its finding that Sandground had engaged, inter alia, in conduct involving dishonesty, fraud, deceit or misrepresentation, the Hearing Committee recommended only that he be publicly censured. The Board recommended that he be suspended for ninety days. Bar Counsel proposed suspension for nine months. This Court adopted the recommendation of the Board.
. In Kersey, the respondent committed a total of twenty-four violations over a two-year period. Three involved misappropriation of client funds, and there were several additional counts of commingling and of failure to maintain complete records of client funds. 520 A.2d at 324. The Board observed that "it is difficult to call to mind very many respondents who, in recent years, have been proven to have engaged in such a widespread and persistent pattern of violations of the ethics of our profession.” Id. The Board perceived "a pattern of dishonesty and deceit so pervasive that disbarment was the only appropriate sanction.” Id. at 323. Noting that alcoholism is a disease and that but for Kersey’s alcoholism the misconduct would not have occurred, this court ordered Kersey disbarred but stayed the execution of the disbarment and placed Kersey on probation for five years. The effect of the stay was that the discipline imposed included no suspension from practice at all.
This case is not the occasion for a protracted debate over alcoholism as a mitigating factor in bar discipline cases. I agree that it is unconscionable to penalize someone for being ill. I suggest, on the other hand, that an alcoholic who is under an irresistible compulsion to drink is not thereby compelled to operate a motor vehicle, and his disease is no defense to a charge of drunken driving. A similar reality may apply to attorneys who suffer from the same affliction. The consequences to the victimized client are no less severe where the offending lawyer is an alcoholic, and the need to protect the public is just as compelling. In any event, from Addams’ perspective, the discipline meted out to him and to Kersey may reasonably appear to represent less than equal justice. It may also present a counter-incentive to sobriety.
. The subject funds were under some sort of "escrow” arrangement to facilitate payments under a disputed mortgage obligation while the enforceability of that obligation was being litigated. Thus, at the time of withdrawal, the opposing party in that litigation may have had a claim to those funds as strong as that of the client, although the latter was ultimately held entitled to the funds. While there are no cases construing the “funds of a client” requirement in DR 9-103(A), we are assuming for purposes of this opinion that a misappropriation took place nevertheless.