(dissenting)—I dissent because I consider the majority's discipline to be far less than required by attorney Malone's actions.
The hearing officer, after testimony resulting in a 345-page record, found:
Mr. Malone has demonstrated that he still does not understand the purposes or the requirements of DR 9-102 or the basic requirements for handling a client trust account. Deviations in trust account bank balances and between trust account bank balances and client ledger cards were gross, frequent, and occurred over a long period of time. Mr. Malone failed to supervise his book*273keeper and failed personally to examine his books and records. Even though Mr. Malone misplaced reliance on a good friend, he is responsible for his bookkeeper's actions.
Finding of fact 41; bar file, at 191-92.
From the recurrent negative client ledger balances, Mr. Malone had ample and actual notice of problems in the trust accounts. Mr. Malone casually and repeatedly used his clients' funds for his own purposes, then restored those funds from his personal accounts.
Finding of fact 42; bar file, at 192.
The hearing officer entered conclusions of law, based upon 45 findings of fact, that attorney Malone had committed two violations of RLD l.l(i), three violations of CPR DR 9-102(A), one violation of CPR DR 9-102(A)(2), and four violations of CPR DR 9-102 (B)(3).
For these 10 violations, the majority suspends Malone for 60 days and then suspends the suspension. The conditions for 2 years of probation merely require Malone to do what he ought to do anyway. His lack of understanding of his obligation regarding trust funds is evidenced by the fact that he is required to seek professional trust account assistance and submit quarterly trust account reports to ensure compliance with CPR DR 9-102. Such conditions hardly comport with a holding that he is to be held out to the public as fully capable of handling their funds in trust.
It is significant that, after extensive testimony from Malone, the hearing officer was compelled to find as a fact Malone "has demonstrated that he still does not understand the purposes or the requirements of DR 9-102 or the basic requirements for handling a client trust account." Bar file, at 191.
The facts are clear about the Rainier National Bank trust account, which was not involved in the bookkeeper's defalcations. For 3 months one client's trust account had a negative balance; Malone covered it with a deposit from his general office account. On another client account he again covered from his office account.
*274Several checks were drawn from a client trust fund with no identification of the client on the check nor in the trust account journal. Some checks on this account are only reflected in a cash disbursements journal as a "draw." In the same account Malone deposited funds from his personal account. The next day he signed a trust check for $1,000, to his own order, noting it as "Mary Jo account." Mary Jo is his wife.
On August 31, 1980, there was an overall trust account deficiency of $6,052.10. Malone knew of this deficiency, yet 5 days later he drew, to his own order, a check for $2,000, merely designated as a "draw." Twelve days later, on this negative balance trust account, he drew to his own order, a trust check for $2,500. There is no supporting entry or identification of client. By September 30 the trust account was short by $10,552.10. A month later the shortage was $10,011.60. Not until November 1980 did Malone deposit from his personal account the sum of $10,602.10. It is noted as "personal-Reimburse."
Over a period of 11 months Malone wrote seven trust fund checks, six to his own order, totaling $5,950. There was no client identification on the checks nor posting to the journal. One check was payable to "cash." Malone claims these withdrawals were fees, but none was posted to a client ledger.
It is no surprise that the hearing officer found these trust account deviations to be "gross, frequent, and occurred over a long period of time." Bar file, at 191.
I am rather unimpressed by the fact that no client suffered a financial loss. The simple fact of the matter was that Malone treated a trust account as a source of money which he could shift about for his own convenience, and without adequate records. One cannot escape the fact that if he had been unable to restore personal funds to cover trust account shortages, loss would have occurred. He never acted as though he understood that a lawyer must keep his hand out of the trust fund till.
*275More than a decade ago we reiterated our philosophy of discipline involving trust accounts. In In re Deschane, 84 Wn.2d 514, 516-17, 527 P.2d 683 (1974) we stated, "[t]hose few lawyers who mishandle trust funds, who fail to maintain complete records of trust funds and who fail to account and deliver funds as requested are reminded that disbarment is the usual result." In In re Rosellini, 97 Wn.2d 373, 377-78, 646 P.2d 122 (1982), we cited 46 of our cases where trust account violations led to disbarment.
In at least three cases, we have found compelling mitigating circumstances to not disbar. In re Salvesen, 94 Wn.2d 73, 614 P.2d 1264 (1980); In re Ressa, 94 Wn.2d 882, 621 P.2d 153 (1980); In re Noble, 100 Wn.2d 88, 667 P.2d 608 (1983). Two of those cases were 5 to 4 and in the third, two members concurred only in the result because of the peculiar facts.
Because of the individualized nature of the judgments which must be made in determining the measure of discipline in a particular case, it is difficult to establish clear standards of truly precedential guidance. I fear the majority in this case makes even less clear the collective judgment of this court.
I acknowledge that there may be sufficient mitigating facts here to stop short of disbarment. However, I am not persuaded that an attorney's ignorance of clearly established trust fund guidelines must be overwhelming as is the majority. The fact that he is of a certain chronological age and "unlikely to practice many more years" would be of little consequence to future clients if his trust accounting is like it has been in the past. Cooperation with the bar investigation is the required standard, not a mitigating factor. Lack of cooperation may be significant, cooperation is not.
The majority finds that the effect of a 60-day suspended suspension is significant. Well, it should be; these proceedings were brought about entirely by Malone's own conduct.
I would reinstate the hearing officer's recommendation of *276a 6-month suspension and impose the suggested probation conditions for a period of 2 years. That is a minimal sanction for failing for years to comply with trust account rules.
Andersen and Goodloe, JJ., concur with Brachtenbach, J.Reconsideration denied February 26, 1987.