In Re the Disciplinary Proceeding Against Krogh

Finley, J.

(concurring specially in the majority) — I am not too concerned by some of the rather forceful language of the dissent.

However, I am concerned by some of the context or content and some of the implications of the dissent, and feel a need to respond. In this regard, it is particularly troublesome that I seem to sense in the dissent an aura of critical disbelief and disquietude with the fact that individual human thought processes — given sufficient intellectual effort, ability and integrity — fail to or cannot produce absolute agreement and an assurance of infallibility in the resolution and disposition of appellate cases including disciplinary matters. To the contrary, experience demonstrates to me convincingly that much of the time a reasonable and rational basis exists for disagreement rather than for exactitude, uniformity, and absolute agreement in the resolution and disposition of appeals by a multijudge appellate court. Finally, the dissent, in essence, seems to me to say that no one with reasonable intelligence and legal training, and with a sense of fairness and social, judicial, and professional responsibility could agree with the majority opinion. *485 To the contrary, I must and do disagree with the possibly subliminal overtones and with the basic thrust and the conclusions of the dissent.

Now, first, this is not the case of a young boy scout who has violated significant moral principles, perhaps of the scout code, or the scout oath, and who has told all, and expressed great personal regrets to an understanding and forgiving scoutmaster. As stated in the dissent, the national consternation and confusion, trauma, and disgrace of Watergate and its many facets are all still with us, and are likely to be for some time.

Second, Mr. Krogh was not merely a lowly lackey at the bottom of the totem pole in the most awesomely powerful governmental office in today’s world. He was — at the top of the totem pole, one of the close and most intimate circle of personal advisors to the President of the United States. He certainly was not the chief architect of Watergate; however, he was certainly one of the principals of the so-called “plumbers” unit in willfully, intentionally, and unlawfully planning, implementing, and carrying out the burglary of the private office of an individual citizen of the state of California and of the United States. As the dissent points out, his actions involved in this disciplinary proceeding do not involve a lawyer-client relation. But it is difficult for me to see how this separates or immunizes him as to responsibility for considering and being guided and, yes, bound by traditional concerns of the legal profession for the protection of the constitutional, statutory, and other historical civil rights of individual citizens.

Third, the dissent’s principal focus is upon the hearing panel’s recommendation that Mr. Krogh be suspended from practice for 9 months and upon the numerous recommendations for leniency, emphasizing the unlikelihood of repetition or of future aberrational conduct by him. But, the dissent is strangely silent except for tangential reference to the fact that the disciplinary board rejected the hearing panel’s recommendation and, instead, recommended disbarment.

*486 Fourth, the dissent’s reference to the unlikelihood of future aberrational conduct emphasizes only one of the possible reasons, among other considerations in a disciplinary matter, for the imposition of attorney discipline by the Supreme Court. This emphasis, in my opinion, assumes too much and is disproportionate. Considering what happened, how can anyone be so sure that under the same or similar circumstances, or perhaps ones of considerably less drama, pomp, and circumstance, Mr. Krogh would be a model of rectitude and exemplary professional conduct?

Fifth, the imposition of attorney discipline is probably one of the most unique and important functions of the state Supreme Court. It is not just a simple matter of applying sterile or objective legal concepts, other abstractions or even ancient or modern so-called precedential decisions. To begin with, no two cases of attorney discipline involve the same facts and seldom, if ever, identical or similar circumstances. The function, to some extent, is objective and abstract but also involves a delicate combination of personal opinion, discretion, and value judgment. My particular and personal combination of these several touchstones leads to a strong conviction in the credence and propriety of the result reached by the majority opinion: namely, the disbarment of Mr. Krogh. I choose this course of action involving an exercise of my individual, and partly collective, responsibility as a member of this court, without expectation of agreement or solace from anyone or any quarter. This is the way it is, and the way it should be in the making of judicial decisions.

Sixth, considering the sudden and as yet not-too-well explained or understandable full executive pardon granted to the chief architect of the many facets of the tragic Watergate fiasco, it could be somewhat tempting to shrug off official duty, professional, public, and social responsibility in this case. However, I am not about to sweep under the rug all considerations and responsibilities for formulating and articulating some basic value judgments as to Water *487 gate activities and in particular the culpability of individuals who participated in varying fashion and degree. I prefer the less permissive and more arduous course followed by Judge Gesell of the United States District Court for the District of Columbia who refused, in effect, to grant judicial clemency, denied probation, imposed sentence, and required Mr. Krogh to serve time for his connection with and participation in the California burglary of the office of Mr. Ellsberg’s personal doctor.

For the reasons stated forthrightly, and also admittedly stated in somewhat strong language, particularly in response to the dissent, I find no alternative to formulating a delicate balance of the considerations pertinent to imposition of discipline other than to concur in the majority opinion.

Stafford, C.J., and Wright and Brachtenbach, JJ., concur with Finley, J.