(concurring)—In a concurring opinion filed this same day, I voted for disbarment for an attorney wherein I stated "Theft by an attorney simply cannot be counte*271nanced, and ordinarily warrants disbarment in all but the most extraordinary circumstances." In re Selden, 107 Wn.2d 246, 259, 728 P.2d 1036 (1986).
In serving on this court, I try to be consistent. I believe the subject case has extraordinary circumstances which prevent disbarment and merit leniency.
1. Attorney Malone effectively and successfully practiced law in Seattle and Poulsbo for some 29 years, and had a large alumni of satisfied clients.
2. Malone had experienced no prior discipline during this 29-year period of practicing law.
3. That in October 1982, Malone voluntarily informed the bar association that his bookkeeper/accountant had been stealing money from his law accounts for the past 4 years. Earlier in July 1982, Malone had obtained a default judgment against his bookkeeper for the principal amount of the forgeries, as well as accrued interest. In the subsequent bar audit it was established that the bookkeeper had forged checks in three different trust accounts in the amount of some $56,000. It was concluded that the forgeries of the bookkeeper Thorsen were so extensive and commingled with the three American Marine trust accounts, that only the Rainier Bank client trust account could be examined to determine Malone's personal accountability.
In my opinion the only solid evidence of invading trust funds against Malone involves client Crum. The audit shows that Malone used $11,000 of Crum's money which he withdrew from the Rainier Bank client trust account. Malone returned $10,602.10 of this amount in a personal check after the discrepancy came to light. It was further shown that such trust account funds were used by Malone for his personal use. Such conduct deserves a strong sanction.
Malone in his brief and oral argument explains this record. He advised that Crum was a seaman who hired Malone to process his claim for injuries Crum received on an Alaskan fishing boat. Those services were to be performed in two parts. Malone was paid a $2,000 fee as a *272retainer for wage loss claims, and, then by agreement, he was to receive a fee of $8,000 for filing a wage claim action in federal court. Malone, with the help of the client, recovered from the insurance carrier the sum of $25,346.27. Malone deposited some $11,000 of such money in the client trust account ($8,000 as fee—$3,000 as costs) but he didn't designate them as his fee and advanced costs. Apparently Malone was trying to charge a one-third contingent fee for the recovery of the wages (writer's speculation). Crum filed a bar complaint against Malone for charging an excessive fee and Malone settled on a time basis for $700. As he had already drawn down $11,000 as fees and costs which he had spent for his own account, he replaced it with other trust fund moneys. Had he had the money which the bookkeeper had stolen (some $56,000) he could have used his own money. Of course Malone's explanation is not a defense to misuse of trust funds, but in my opinion mitigates the penalty. If you believe Malone's explanation it illustrates that he had no intention of depriving Crum of his money. Rather, the situation involved a fee dispute, and only because of Malone's bookkeeper's earlier transgressions was Malone unable to replace the trust fund money promptly. Because of Malone's long and sanction-free legal career, I would give him the benefit of the doubt.
I concur with the majority's disposition of the subject case.