HENDERSON, Justice (dissenting).

I respectfully dissent.

"Although most states make a felony conviction grounds for automatic disbarment, our rule does not mandate disbarment; however, such a conviction is prima facie evidence of an unfitness for the trust and confidence reposed in members of the Bar of this state." Matter of Parker, 269 N.W.2d 779, 780 (S.D. 1978). "Prima facie" is of Latin derivation meaning: "At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary." Black's Law Dictionary 1353 (4th ed. 1968).

Inasmuch as this state has not adopted, either by rule or by statute, the concept that conviction of a felony results in automatic disbarment, we owe a responsibility to look beyond the prima facie case to determine this attorney's fitness to practice law. I choose to do so out of respect to this young lawyer and to his family, his wife and five small children. I further embark upon such a course out of respect to former opinions of this Court. The power to admit and disbar is "not an arbitrary and despotic one, to be exercised at the pleasure of the court, or from passion, prejudice, or personal hostility; but it is the duty of the court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the court as the rights and dignity of the court itself." In re Egan, 24 S.D. 301, 303, 123 N.W. 478, 479 (1909).

I am not suggesting for one moment that the majority opinion has treated this attorney in a despotic manner or with passion, prejudice, or personal hostility. I am asserting that this Court, in this disbarment proceeding or any in the future, must begin its insight at the prima facie showing, that is the felony conviction, and probe deeply thereafter into the attorney's character and fitness to practice law. The heart of my dissent is that in this case the Court has punished this attorney for conviction of a felony by taking his license to practice law from him, and that the judgment of this Court is too harsh considering the facts and circumstances of the case. An attorney should be disbarred only "when it seems clear that the protection of society requires such action, or when the maintenance of the respect due courts and judges or of the respectability of the legal profession itself demands such action." In re Wilmarth, 42 S.D. 76, 87, 172 N.W. 921, 924 (1919). 7 Am.Jur.2d Attorneys at Law § 18 (1963) states:

Discipline of an attorney may be effected by disbarment, suspension, or censure, sometimes called reprimand, which may be public or private. Disbarment is the extreme measure of discipline and should be resorted to only in cases where the lawyer demonstrates an attitude or course of conduct wholly inconsistent with approved professional standards. To disbar it should be clear that he is one who should never be at the bar; otherwise suspension is preferable.

I take the position that it would be preferable to suspend Merlin Voorhees from the practice of law for a period of two years and require attendance at continuing legal education schools and seminars. The Disciplinary Board of the State Bar has recommended disbarment. Great weight should be given to the recommendation of the Disciplinary Board by this Court. The lawyers that serve on this Board have a most arduous and difficult calling. We must be mindful of the fact that while the Disciplinary Board makes recommendations, the awesome responsibility of making the final decision rests with this Court, not the Disciplinary Board. SDCL 16-19-22 provides:

The Supreme Court shall have sole power to strike from the roll the name of any attorney and counselor at law and to revoke his license or to suspend him from the practice for such time as shall seem just for cause shown.

In this profession, we should all remember that the Justices of this Court are elected from districts all over the state, by people reposing faith in the independent judgment of those individuals whom they place on the highest court of this state. The Disciplinary Board is chosen from within the framework of the State Bar, a lawyers' organization. Thus, I am obliged to exercise independent judgment; however, I also must place great weight on the recommendation of devoted men who likewise exercise independent judgment.

From the time we are fledgling law students, we are taught that each case should be decided upon its own particular set of facts; and so I believe that this case should be likewise judged. Merlin Voorhees is a very unique individual with certain God-given talents who has committed a felony and stands now, before the Bar of Justice, with his right to practice law on the line. We must always remember that the purpose of a disciplinary proceeding is not for punishment. Rather, it is to remove from the profession those attorneys whose misconduct has proved them unfit to be entrusted with the duties and responsibilities belonging to the office of an attorney so that the public may be protected from their further wrongdoing. In Re Kunkle, 88 S.D. 269, 218 N.W.2d 521 (1974), cert. den. 419 U.S. 1036, 95 S.Ct. 521, 42 L.Ed.2d 312 (1974). Therefore, we face this question: Is Merlin Voorhees unfit to be entrusted with the duties and responsibilities of an attorney? We are not postured to legally punish Merlin Voorhees. As was stated in In Re Weisensee, 88 S.D. 544, 546, 224 N.W.2d 830, 831 (1975): "[T]he real and vital issue to be determined in disbarment proceedings is whether or not the accused, from the whole evidence as submitted, is a fit and proper person to be permitted to continue in the practice of law."

Attorney Voorhees, not as an attorney, but as a manager of a community feedlot corporation, altered a lease at a time when he and the community feedlot corporation were undergoing great hardship, distress, and economic problems resulting from a severe drouth in South Dakota. His act was designed, at the expense of the United States taxpayers and government, to benefit this community feedlot. When confronted by investigators from the United States Department of Agriculture, Voorhees admitted to his actions. A federal grand jury returned a true bill on three counts of using false documents to defraud the United States. A federal trial ensued and Voorhees was acquitted on two counts and found guilty on one count. District Court Judge Andrew Bogue sentenced Voorhees to two years' imprisonment and imposed a fine of $2,500. The federal judge suspended execution of the imprisonment, however, and placed Voorhees on probation for a period of two and one-half years with the usual conditions of paying the fine and obeying the rules of probation and laws of the jurisdiction. Voorhees' federal probation officer submitted a sworn affidavit to this Court, a highlight of which is this statement: "I was impressed by the probationer's dedication in looking after his responsibilities. I have felt that the probationer has been open and honest in keeping me informed of his present circumstances and future plans. Because of his commitments, his openness and what I have come to believe an honest intent, I have developed much respect for the individual."

On July 17, 1978, attorney Voorhees was suspended from the practice of law in all courts of South Dakota "pending final disposition of a disciplinary proceeding." From that date until the rendition of this opinion, he has not practiced law and has kept his family together at Onida, South Dakota, driving a tractor for wages and purchasing some cattle for a small ranching operation. He has worked hard during his suspension and has been a credit to himself and his family. There is no suggestion or showing that he has been anything other than an upright man.

Earlier, I described Merlin Voorhees as a unique man. There are many approaches to life with a law degree in hand. This attorney did not use his profession for monetary gain. Rather, he used it as a means for serving the community in which he lived. I am reminded, at this juncture of my dissent, of the words of Oliver Wendell Holmes in referring to this profession: "We are not mere grubbers in the muckheaps of the world." A well-furnished office in a stately building in a large city was neither Voorhees' cup of tea nor his calling in life. His cause did not seem to be the creation of a flourishing, high-income producing law practice; he appeared to be more interested, if not almost totally dedicated, to improving the small, agricultural town of Onida, South Dakota. To this end, he was most instrumental in bringing a doctor and dentist to Onida. In a Herculean effort, he personally went about refacing and restructuring old buildings on the main street of Onida; he served on the city council; he was active in Cub Scouts, church, Chamber of Commerce, Sully Buttes School District Education Advisory Board; and was a general promoter for the community.

Springing from this disbarment proceeding has been an overwhelming outpouring of support from his community, in the form of written affidavits, that bears directly on his fitness to practice law. This showing comes from people of all walks of life in the general community of Onida and Sully County. The Disciplinary Board has not presented one scintilla of evidence, outside of this one conviction, that suggests he is unfit to practice law. This Court is presented with characterizations as follows: "good and honest;" "very positive, constructive;" "Merlin is a good man;" "honest trustworthy;" "an asset, leader, community minded;" "honest, interested, caring;" "he was dedicated to make his community grow;" "upright and very progressive and a builder, not a destroyer;" "very competent — knew his law — willing to help any way he could;" "one of the best assets we had in the community;" "trying to get new business into town;" "he has been tops;" "he served [on the city council] with dignity and a sincere dedication to help his community." The praises for him as a good and decent man go on ad infinitum.

Adversity, such as a severe drouth in an agricultural community, often drives good men into doing bad things. In his zeal to help a community feedlot, hard hit by a shortage of hay and grain, Voorhees altered a lease document without a trucker's permission. Realizing this community feedlot was in jeopardy, and trying to avert a financial calamity, Voorhees not only used bad judgment but also committed a crime. I do not condone his crime. With tears in his eyes, before the highest Court of this state, he said: "I was wrong on the lease — very wrong — I will pay all of my life. I'll go back for continuing education; I will need it. I have five little children and a wife depending on me; please do not disbar me."

Attorney Voorhees' attitude toward his wrongdoing has been one of reparation, sorrow, regret, humility, hard work, and contriteness of spirit. He has embarrassed his family, profession, and community. Indeed, he has already paid a very dear price for his criminal act. Voorhees, by the majority of this court is being disbarred; censorious and belabored utterances are not pertinent nor necessary. His mental and moral strengths, by an overwhelming proof in this case, indicate he is fit to practice law and that society will not be endangered by permitting him to practice law. Adjectives of the culpability of his crime do not address the arguments of this dissent. The majority opinion is simply grounded in punishment.

The Disciplinary Board has not controverted the evidence of Attorney Voorhees concerning his fitness to practice law. It has rested its case merely on the conviction. It has, in essence, totally stopped at the very point that it should have begun. The prima facie case against Voorhees exists, it is true, but the record is overwhelming that notwithstanding this presumption, he is fit to practice law and should not be permanently disbarred. If we are to give meaning to the spirit of our past decisions, we must heed showings, affidavits, testimony, and all facts that bear on the fitness of an attorney's right to practice law. Otherwise, a conviction per se shall bring about automatic disbarment, which is not the law of this state. A presumption is just that: It is like a night bird, that flits about in the twilight and into the dark, but disappears under the light and sunshine of actual facts. The sunshine of the facts probe and reveal more than a presumption of law; we must never lose sight of this.

Finally, the majority leans heavily on the matter of Voorhees' conviction on falsifying documents (emphasis supplied) as justification of disbarment. Procuring a false affidavit in a divorce case was not grounds for disbarment but was grounds for suspension in the case of In re Wall, 73 S.D. 176, 39 N.W.2d 903 (1949). Causing his client to make a false attachment affidavit was not grounds for cancellation of an attorney's license to practice law in In re Egan, 37 S.D. 159, 157 N.W. 310 (1916). In both of these cited cases the attorneys were acting as attorneys. Both attorneys were charged with falsifying documents (emphasis supplied). Voorhees was acting in his capacity as a corporate officer and not in the context of an attorney. Although this is not a determinative factor, it is a critical factor to be considered. I point this out not to condone Voorhees' conduct but to permit the academe of the Bar to compare these two cases with this case and to consider thoughtfully the precedent of this court.