The opinion
O’HERN, Justice,
dissenting.
This disciplinary proceeding results from a compliance audit of the trust funds of respondent Donald G. Howard by the Office of Attorney Ethics (OAE) pursuant to Rule 1:21-6c. The audit led the OAE to file a complaint against respondent, *181 which charged him with various ethical violations involving the trust funds. The alleged violations include his failure to maintain required records, failure to safeguard clients’ funds, and, most important, misappropriation of clients’ funds. This latter allegation is critical to our disposition because of the rule of In re Wilson, 81 N.J. 451 , 409 A.2d 1153 (1979), that a knowing misappropriation of clients’ funds will almost invariably result in disbarment of the attorney.
The District Ethics Committee and the Disciplinary Review Board (DRB) have unanimously agreed that respondent had, indeed, engaged in the unethical misconduct charged and that the knowing misappropriation of clients’ funds warrants disbarment. I am unable to agree that the record clearly and convincingly demonstrates a knowing misappropriation. This respected attorney has been practicing law in this State without incident since 1968. • Donald Howard was surely a bad bookkeeper, but no one has said here that he was a bad lawyer and no client has lost any money on his account.
The centerpiece of the case against him is a bookkeeping transposition between client and attorney funds in connection with two nearly-simultaneous deposits. He took one client’s check for $15,200 (the Kaufman check), intended for Kaufman’s wife, and put that in a personal account that was not under an Internal Revenue Service lien. He then took $15,200 of his own funds in the form of a fee from a $45,000 settlement (the Yellow Freight settlement for Robin Henrie Irving) and sent that money on to Mrs. Kaufman. The Yellow Freight deposit had been made on September 2, 1987. The Kaufman deposit was made on September 3, 1987. Mrs. Kaufman received her money on September 17, 1987. Had respondent but put both checks in his trust account on September 3, 1987, and drawn one check to his personal account and another to Mrs. Kaufman, there would be no issue. In form, what he did was bad. In substance, no harm was intended and no harm was caused.
*182 That leaves us with two issues: the workers’ compensation lien (comp lien) on the Yellow Freight settlement, and various personal withdrawals from the trust account.
On the comp lien issue, the comp carrier’s representative was candid to admit that such “liens” are always negotiable: “[w]e always compromised them if we were asked to by the attorney.” Hence, the paper lien is never, or hardly ever, the actual entitlement of the carrier.
The reason is simple. Every case has weaknesses as did Robin Henrie Irving’s. Many times it will not benefit a plaintiff to try a case of marginal liability if the lien is non-negotiable. If the case is not tried to a verdict, the carrier will get nothing. Hence, the quality of the case dictates the treatment of the lien. In his final testimony, the carrier’s representative admitted that such a case would be routinely discounted to sixty percent, less an attorney’s fee. He claimed that this case had not been “settled that way.” The colloquy between respondent’s attorney and the carrier’s representative follows:
Q. That’s what I’m getting at. So that your 11,000 figure you’re saying now is probably based on a sixty-percent basis, is that correct?
A. Yeah, but we don’t know what the case was settled for.
Q. I understand. But assuming that, you know, assuming that sixty percent was the right figure based upon the liability aspects, correct?
A. Right.
Q. You would have been willing to take 11,000 less $200 plus one-third off?
A. Right, yeah.
Q. And you would have gotten a few bucks on an old dog and you would have looked pretty good, wouldn’t you?
A. That’s right.
Nonetheless, the DRB was troubled by the question concerning the Yellow Freight settlement; namely, whether respondent had knowingly invaded the carrier’s comp lien.
[A BOARD MEMBER]: But, Mr. Schlesinger [respondent’s attorney], if you start out with forty-five—
But forget — forget your books are a shambles. I mean, he remembers the 45,000. He didn’t have that much activity in his trust account. At least at that size.
MR. SCHLESINGER: Umm.
*183 [THE BOARD MEMBER]: You—
MR. SCHLESINGER: That’s—
[THE BOARD MEMBER]: —start with 45,000, he’s paid twenty [to Robin Henrie Irving], He’s taken another fifteen-two [for Kaufman], What does he think remains?
MR. SCHLESINGER: You know, you’re only talking about $6,000 [the uncovered amount of the $17,000 comp lien?].
A SPEAKER: That’s—
[THE BOARD MEMBER]: I think this Board and the Court have disbarred people for less.
MR. SCHLESINGER: I know.
CHAIRMAN [BOARD]: Where — where does it come from?
The question is, where does it come from?
MR. SCHLESINGER: He’s obviously out of trust for $6,000.
CHAIRMAN [BOARD]: No, no.
MR. SCHLESINGER: The-the—
CHAIRMAN [BOARD]: The question is knowledge.
MR. SCHLESINGER: Yes.
CHAIRMAN [BOARD]: Knowing intent.
MR. SCHLESINGER: That’s right.
CHAIRMAN [BOARD]: And he has just taken these two figures given by [the Board member], paid out money, taken 15,352. Now, there’s $9,800 left, but he knows there’s a demand for seventeen.
Where—
[THE BOARD MEMBER]: Well—
CHAIRMAN [BOARD]: —does it come—
MR. SCHLESINGER: —sure.
CHAIRMAN [BOARD]: —from?
MR. SCHLESINGER: First of all, I—
Let me go back on this comp lien for a little, because I think there’s a lot of confusion about it.
He never cleared up the confusion, at least not to the DRB’s satisfaction. But is there a smoking gun of misappropriation here? Even in a worst case scenario of a 100 cents on the dollar payment on the lien (something that rarely occurs), the carrier’s recovery could never have exceeded $11,200 ($17,000 less thirty-three percent less $200 costs). In a best case (for Donald Howard) scenario, the comp carrier would have been claiming $6,600 ($17,000 less forty-percent discount for liability aspect less thirty-three percent less $200 costs). Hence, I am unable to sense the moral quality of disbarment in the handling of that matter. See In re Kernan, 118 N.J. 361, 367-68 , 571 *184 A. 2d 1282 (1990) (absent definitive instructions about status of third-party’s interest in funds, attorney should not be disciplined for taking fee from the deposited funds).
Finally, the personal withdrawals from the account do not in themselves establish a knowing misappropriation. Respondent believed that he had available funds to cover those withdrawals. This is not a case like In re Fleischer, 102 N.J. 440 , 508 A. 2d 1115 (1986), in which the attorneys deliberately commingled their trust and attorney accounts for the purpose of having client funds available to pay their office expenses. Rather, this case fits more closely into the pattern of recent cases in which we have found that in the absence of clear and convincing proof of a knowing misappropriation, the fact that clients’ funds have been invaded does not warrant disbarment. In re Librizzi, 117 N.J. 481 , 569 A.2d 257 (1990); In re Gallo, 117 N.J. 365 , 568 A.2d 522 (1989); In re James, 112 N.J. 580 , 548 A.2d 1125 (1988). In this last case, the attorney had also actually paid various personal obligations out of his trust account. That it should be more excusable because he blamed his secretary is a distinction I find distasteful.
In other cases we have noted the special need for attorneys who represent needy clients. In In re Johnson, 105 N.J. 249 , 520 A.2d 3 (1987), we were confronted with much clearer evidence of knowing misappropriation, but we found that Johnson’s “delinquencies appear to have resulted from an unwholesome combination of ineptness in respect of office administration and a remarkable absence of equilibrium in balancing his talents and energies with the needs of his clients.” Id. at 260 , 520 A.2d at 8-9 . Similarly, in a recent case an attorney reimbursed $50,000 to a client to cover estimated misuse of the client’s funds. The Court concluded that despite “flagrant record keeping violations,” evidence of an unusual business relationship with the client and evidence that the attorney “provided a large volume of pro bono legal services” convinced us that his was not a knowing misappropriation. In re Chidiac, 120 N.J. 32, 38 , 575 A.2d 1355 (1990). It is a little hard for *185 me to see how a $50,000 misuse will not be “knowing,” but Donald Howard’s must be. Furthermore, we have excused lawyers with more recurrent violations. See In re Gallo, supra, 117 N.J. 365 , 568 A. 2d 522 (routine commingling of personal and client funds and trust fund invasions excused because of attorney’s ignorance of record-keeping procedure).
Single practitioners today face ever-mounting demands of a system geared toward big-firm practice. Such lawyers have no elaborate support staff, paralegal assistance, or computer printouts of their activities. Of course, you do not need a computer to be an honest lawyer, but we ought to be absolutely certain that we are dealing with more than bad bookkeeping before we disbar an attorney. A long-time friend of respondent at the bar has written to us in his behalf and has offered to assist respondent by providing the support service for bookkeeping and the like needed to improve the business end of respondent’s practice. This fellow-attorney is convinced, as am I, that Donald Howard never knowingly misappropriated client funds. He writes:
Mr. Howard’s practice is established in an extremely poor community, Browns Mills, New Jersey, and a good many of his clients are either no-pay or low-pay, yet he gives as much attention to them as he gives to those who can afford a full fee.
He knows and understands the law in those areas in which he chooses to practice; his homespun way of speech and mannerisms endears him to his clients and enables him to bring down to their level an understanding of what is going on; his abilities have frequently resulted in favorable decisions to his clients; and, from my viewpoint, his respect from both the Bar and the Judiciary in this county is one wherein when Don Howard says something to be true, it is true.
The loss of his license would deprive the Browns Mills community of someone who is a good lawyer and who has provided a service to many needy people.
We ought not do this.
ORDER
It is ORDERED that DONALD G. HOWARD of BROWNS MILLS, who was admitted to the bar of this State in 1968, be *186 disbarred and that his name be stricken from the roll of attorneys of this State, effective September 21, 1990; and it is further
ORDERED that DONALD G. HOWARD be and hereby is permanently restrained and enjoined from practicing law; and it is further
ORDERED that DONALD G. HOWARD comply with Administrative Guideline No. 23 of the Office of Attorney Ethics dealing with disbarred attorneys; and it is further
ORDERED that DONALD G. HOWARD reimburse the Ethics' Financial Committee for appropriate administrative costs.
For disbarment — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, GARIBALDI, and STEIN — 6.
Opposed — Justice O’HERN — 1.