In Re Ewaniszyk

MOSK, J.

I dissent. Evidence of petitioner’s transformation since his abstention from drugs and alcohol over five years ago should mitigate the harshness of the discipline imposed on him. Accordingly, I would follow the recommendation of the hearing referee that petitioner be placed on five years’ probation with one year’s actual suspension.

*553 We have given little weight to recovery from substance abuse as a mitigating factor when the rehabilitation is short-lived. (See Twohy v. State (1989) 48 Cal.3d 502, 515 [ 256 Cal.Rptr. 794 , 769 P.2d 976 ] [two months’ rehabilitation]; Gary v. State Bar (1988) 44 Cal.3d 820, 824-825 [ 244 Cal.Rptr. 482 , 749 P.2d 1336 ] [less than two years’ rehabilitation and recovery dubious]; Rosenthal v. State Bar (1987) 43 Cal.3d 658, 664 [ 238 Cal.Rptr. 394 , 738 P.2d 740 ] [eighteen months’ rehabilitation].) On the other hand, when the period of abstention is significant, so as to demonstrate a “meaningful and sustained period of successful rehabilitation” (Rosenthal, supra, 43 Cal.3d at p. 664 ), we have concluded that a period of supervised probation was adequate to protect the public. (See Baker v. State Bar (1989) 49 Cal.3d 804, 819-823 [ 263 Cal.Rptr. 798 , 781 P.2d 1344 ] [no disbarment when abstention from drugs and alcohol was for approximately four years]; Tenner v. State Bar (1980) 28 Cal.3d 202, 205-209 [ 168 Cal.Rptr. 333 , 617 P.2d 486 ] [same].)

In Baker , which the present case resembles in a number of respects, the attorney had misappropriated client funds on 10 occasions. His misconduct was directly attributable to his alcohol and cocaine abuse. He had practiced law for a fairly brief period—four years—prior to his misconduct. From early 1985 until the time the case was heard in mid-1989, Baker abstained from alcohol, according to various sources. We found that Baker’s continuing sobriety, together with his practice of law without incident for the previous three years, justified a less stringent penalty than the disbarment recommended by the review department. We instead ordered that Baker be placed on three years’ probation with actual suspension of one year or until full restitution was made. (49 Cal.3d at pp. 823-824.)

I believe similar mitigating circumstances exist in the present case. Here, the referee found that petitioner’s misconduct was attributable in part to his habits of substance abuse. He has apparently not used drugs or alcohol since 1985. Numerous witnesses attested both to his continuing sobriety and to the marked beneficial changes that have resulted. 1 He has volunteered to work for various substance-abuse recovery programs, including “The Other Bar.” He has remarried, and the referee found that marriage and parenthood have stabilized his life. He was working at the time of the discipline hearing as a law clerk for an attorney in San Bernardino County, who testified to petitioner’s competence, reliability, and sobriety. The district attorney who prosecuted him in Monterey submitted a letter of recommendation.

*554 Because there is apparent authenticity and durability to petitioner’s control of his illness, I believe that the mitigating factors taken in their totality are compelling and therefore concur in the hearing referee’s recommendations. These recommendations include, as conditions of probation, that petitioner be actually suspended for one year, that he not practice as a sole practitioner for two years, and that he make full restitution to the one client still owed money. The concern that petitioner may discontinue participation in a substance-abuse recovery program is adequately addressed by the hearing referee’s recommendation that he continue in such a program, as we required in Baker. (Baker v. State Bar, supra, 49 Cal. 3d at p. 824 .) Given petitioner’s notable recovery, I believe the rigorous conditions of probation recommended by the referee will be ample to protect the public. 2

Broussard, J., concurred.

Petitioner’s application for a rehearing was denied June 7, 1990.

Although the majority imply otherwise, the undisputed testimony of Thomas Thornburg, petitioner’s employer, in State Bar Court was that petitioner continued to be active in Alcoholics Anonymous after moving to San Bernardino County.

1 also conclude that Business and Professions Code section 6102, subdivision (c) does not apply retroactively to petitioner. An examination of the legislative history of that statute indicates no intent to make it retroactive. Nor does the lack of retroactive application of the legislation leave the public unprotected. The statutory scheme in existence prior to passage of section 6102, subdivision (c) permitted disbarment for misappropriation of client funds. This court has held that when legislation is amended to substitute mandatory for permitted sanctions, retroactivity will not be found absent express legislative intent. (See DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 177-178 [ 18 Cal.Rptr. 369 , 367 P.2d 865 ] [mandatory denial of teaching credentials to those convicted of specified sexual offenses not retroactive].) We are therefore not compelled to disbar petitioner.