(dissenting) — I dissent. The order of July 10, 1981, of this court defining the issues to be determined on hearing before us carefully stated what was to be decided. Our show cause order was limited to
(a) Should the Court take cognizance of this matter either upon the Petition of the Prosecuting Attorney of King County or upon its own motion?
(b) Did the proceedings before the Disciplinary Board and its Order of February 22, 1980, comply with the Discipline Rules for Attorneys (1) as a matter of law and/or (2) as a matter of fact?
The written briefs filed before this court by the bar association, King County Prosecuting Attorney, and Mr. Stroh make apparent these were the only issues the parties believed were before the court. Our appellate rules and procedures provide for full notice to parties of issues to be determined on an appeal of disciplinary action before our court and an opportunity to present argument on those issues, both by written brief and oral argument. DRA 6.1-6.5; RAP 10.1 et seq., 11.1 et seq.
If this court wished to consider whether or not to disbar Mr. Stroh at its hearing, it should and could have said so by directing the responsible parties to address that matter in their briefs and at oral argument. We did not so order, and to consider now the issue of disbarment undermines the most fundamental notions of due process as to notice *302and an opportunity to be heard.
Mr. Stroh was forced, without notice, to respond at oral argument before this court to isolated inquiry from two members of the court as to what discipline is appropriate. The majority cannot now assert such conduct is even roughly equivalent to constitutional requirements of notice, opportunity to prepare, brief and argue. Traditionally, we have provided such safeguards in the least important case before us. Federal and state constitutions guarantee due process of law when deprivation of the right to practice a profession is at issue. For this court to provide less is inexcusable when it was our order which defined the issues.
Although we may in extraordinary cases depart from our rules to exercise our inherent power in disciplinary cases, we still must meet constitutionally established minimum due process standards in disbarment cases. In re Ruffalo, 390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222 (1968). If we are supplanting the Disciplinary Board by our novel procedure in this case, we should not overlook that our rules provide an opportunity to argue before this court subsequent to Disciplinary Board action at which time notice and an opportunity to brief and argue the issues are all assured. Failure to provide these same guaranties in our consideration of Stroh's disbarment squarely conflicts with the import of our own rules and Ruffalo. The Court there stated:
Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. Ex parte Garland, 4 Wall. 333, 380; Spevack v. Klein, 385 U. S. 511, 515. He is accordingly entitled to procedural due process, which includes fair notice of the charge. See In re Oliver, 333 U. S. 257, 273. It was said in Randall v. Brigham, 7 Wall. 523, 540, that when proceedings for disbarment are "not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence." Therefore, one of the conditions this Court considers in determining whether disbarment by a State should be *303followed by disbarment here is whether "the state procedure from want of notice or opportunity to be heard was wanting in due process." Selling v. Radford, 243 U. S. 46, 51.
390 U.S. at 550.
State and federal courts that have considered the issue also have concluded attorney discipline proceedings must comport with due process. In re Ming, 469 F.2d 1352 (7th Cir. 1972); In re Fleck, 419 F.2d 1040 (6th Cir. 1969); Hackin v. Lockwood, 361 F.2d 499 (9th Cir.), cert. denied, 385 U.S. 960, 17 L. Ed. 2d 305, 87 S. Ct. 396 (1966); Chaney v. State Bar of Cal., 386 F.2d 962 (9th Cir. 1967), cert. denied, 390 U.S. 1011, 20 L. Ed. 2d 162, 88 S. Ct. 1262 (1968); In re Appeal of Icardi, 436 Pa. 364, 260 A.2d 782 (1970); In re Nelson, 78 N.M. 739, 437 P.2d 1008 (1968). Such due process guaranties are consistent with the broader proposition that any state action encroaching upon one's ability to pursue one's own profession must meet due process standards. Rodriguez de Quinonez v. Perez, 596 F.2d 486 (1st Cir. 1979); Maeda v. Amemiya, 594 P.2d 136 (Hawaii 1979); Wolfenbarger v. Hennessee, 520 P.2d 809 (Okla. 1974); Endler v. Schutzbank, 68 Cal. 2d 162, 436 P.2d 297, 65 Cal. Rptr. 297 (1968). While flexibility is allowed courts in shaping disciplinary rules for attorneys, that flexibility is limited by due process. In re Ming, supra at 1355-56. There the court found violative of due process an executive committee's suspension of Ming without hearing before his criminal conviction became final. The court stated:
Both licenses to practice law and welfare payments can be viewed as a type of "new property," Reich, The New Property, 73 Yale L.J. 733 (1964), the deprivation of which has drastic consequences to the individual. It is only fair and just that the Government not subject any person to such a drastic divestment without affording him substantial due process of law. . . .
. . . While in a hearing on a suspension based on a finalized conviction of a misdemeanor, an attorney may *304not be allowed to reargue the merits of the conviction, he would seem to have similar interests to those of the parolee, or a person being sentenced for a crime, to some hearing under due process. In such a situation, "a chance to respond" must be equated to "the opportunity to be heard" which necessarily implies a hearing. Appellant was not afforded such a hearing and we find that this denial was a deprivation of due process of law.
469 F.2d at 1355-56.
The majority recognizes that the order of the Chief Justice did not address the issue of what disciplinary action should be taken against Stroh but urges "justice to both him and the public demands that we resolve all issues involved in his case." Majority opinion, at 298. It is incongruous for the majority to assume under the guise of justice, all rudimentary concepts of due process are to be sacrificed in the exercise of this court's inherent supervisorial power in bar discipline cases. Rather than expediting resolution of this case, the majority's holding only ensures an appeal on federal due process grounds to the United States Supreme Court, which will further delay final resolution. Surely neither the public nor Mr. Stroh benefit from such a process. We should instead concentrate on making our own processes and rules more clear, which we are now doing. The same due process standards should apply in this case of great notoriety that would be applied in a case in which there is no public clamor.
Notwithstanding the majority's disregard for due process, there are other reasons why Mr. Stroh should not be disbarred at this time. Although I signed the majority opinion upholding the constitutionality of the statute Mr. Stroh was charged with violating, State v. Stroh, 91 Wn.2d 580, 588 P.2d 1182, 8 A.L.R.4th 760 (1979), the questions of the propriety of his criminal conviction have not been heard at the appellate level because Stroh dismissed his appeal in reliance on the Board's dismissal of his disciplinary case under our rules.
As discussed in the majority opinion, the Disciplinary Board, acting under the appropriate rules of court, dis*305missed Mr. Stroh's disciplinary action at its January 18, 1980, meeting. Pursuant to our rules, neither notice of dismissal of the complaint nor a copy of the Board's conclusions were forwarded to the Supreme Court. On November 14, 1980, Mr. Stroh voluntarily dismissed the appeal of his criminal conviction. In oral argument before this court, Mr. Stroh indicated he dismissed the appeal at the request of his partners who believed continuing publicity was damaging to them and with the reasonable expectation, based upon our rules, that no additional disciplinary proceedings would occur.1 This case is unique in that Mr. Stroh abandoned the possibility of establishing his innocence with the reasonable expectation disciplinary proceedings against him were final.
Much delay, which is not attributable to Mr. Stroh, has already occurred regarding disposition of this case. In the past, we have declined to discipline an attorney even though his conduct would normally justify discipline where undue delay has existed, the attorney's actions since the misconduct were exemplary, and no further action was necessary to protect the public. See In re McNerthney, 95 Wn.2d 38, 621 P.2d 731 (1980); In re Ressa, 94 Wn.2d 882, 621 P.2d 153 (1980).
Over a year passed from the time the Board dismissed *306the complaint (February 22, 1980) until the time the prosecutor attempted to reopen the case (March 18, 1981). Stroh cannot be blamed for the Board's failure to notify the prosecution of its dismissal of the complaint or for the failure of the rules to require notice to this court of such dismissal.
He has satisfied the terms of his criminal sentence by serving 30 days in jail, paying a fine, and performing many hours of community service. He has, as well, been exposed to intense publicity surrounding his transgressions, and his personal and family life have become unsettled. Furthermore, since his charge and conviction, Mr. Stroh has abandoned the practice of criminal law for compelling personal reasons and has limited his practice to business clients. His conduct since his conviction has been spotless and he has retained the confidence of his business clients. The hearing panel found there was little chance of Stroh's recidivism, and his conduct since his crime has confirmed that belief.
In summary, the passage of time, the harm that has already befallen Stroh as the result of his acts, his abandonment of criminal practice and demonstrated rehabilitation, the general agreement that there is little chance of recidivism and, most importantly, Stroh's dismissal of his criminal appeal with the reasonable expectation that disciplinary action had concluded, should compel us to deny the reopening of disciplinary proceedings against him.
Under these circumstances, while the court could exercise its inherent jurisdiction to reopen this case, I believe it should not do so. The further hearings required by due process, which under all previous standards should be given for this court to reexplore the issue of whether or not Mr. Stroh should be disbarred, would only unnecessarily prolong this matter. I would not, however, simply end the matter. To assure the public that Mr. Stroh's conduct will be subject to the highest scrutiny, this court should order that any future allegations of misconduct against him be *307referred directly to us. With this condition, I would take no further action at this time.
Dolliver, J., concurs with Utter, J.
Reconsideration denied July 9, 1982.
Parenthetically, proposed rules now before this court for lawyer discipline will obviate most of the procedural problems that have arisen in this case. They provide any person filing a complaint alleging lawyer misconduct be advised of the disposition of the complaint. Proposed Rules for Lawyer Discipline 2.9(a)(7). A review committee would be established to serve as ombudsmen overseeing the formal actions of bar counsel, stipulations for suspension, disbarment and investigations of mental or physical inability to continue practice, and to determine, initially, in nonfelony cases, whether a crime is a serious crime. (A new term of art in the rules.) If the crime is found to be "serious" within the meaning of the new rules, state bar counsel would be required to petition the Supreme Court for an order suspending the lawyer during the pendency of disciplinary proceedings. The new rules also require notice to the Supreme Court of the Board's dismissal of disciplinary proceedings based upon a criminal conviction of the lawyer. Therefore, the unusual circumstances in this case will be unlikely to recur if the Supreme Court acts favorably on the proposed rules. Thus, the rule we establish for this case will in all likelihood apply only to the unusual facts of this case.