GILBERTSON, Circuit Judge.
INTRODUCTION
This is a disciplinary proceeding against Respondent Tidball, a member of the State Bar of South Dakota. Respondent has admitted the factual allegations against him. As such, the facts will be set forth in an abbreviated manner.1 There remains for this Court, the issue of a determination of the appropriate manner of discipline. The Disciplinary Board of the State Bar of South Dakota (Board) has recommended disbarment.
FACTS
Respondent graduated from the University of South Dakota School of Law in 1966 and was admitted to the practice of law in [852]*852South Dakota on July 28, 1966. He has spent his entire professional career in the Pierre/Ft. Pierre area. He has engaged in a general private practice as a sole practitioner and in a partnership setting. At all times pertinent herein, he was practicing alone.
1. Trust Account Violations.
An audit by the Board established that between November 30, 1989 and December 15, 1992, Respondent did on numerous occasions commingle funds belonging to clients with his own personal funds. During this period Respondent had fallen on financial hard times and was being pressed by creditors. To avoid their garnishment attempts, he placed his personal funds in his trust account. He claims to have also kept client funds commingled along with his funds in bank drafts in his office safe to avoid his creditors. Deposits and withdrawals were made with such randomness that it is impossible to tell with exactness which transactions were of a personal nature and which involved a specific client. He failed to keep contemporaneous ledgers or other records which would allow him to render appropriate accountings to his clients upon request.
Several times, the balance in his trust account fell below what appears to be the amount of funds he held in trust for clients. His defense is that the remainder of the client funds were commingled with his personal funds in the bank drafts which were in his safe.2
2. The Glenda Hall Complaint.
In 1990 Respondent commenced representation of Hall in a divorce action. There never was a written fee agreement nor memorandum confirming any fee arrangement. The action was completed by settlement on May 16, 1991. Respondent drafted for his client’s signature, an authorization to accept $10,000 as a settlement for her share of the marital assets. The authorization also stated that the legal fees were to be deducted from this amount. Hall signed it with the stipulation “legal fees not to exceed $1,000.”
Upon receipt of the $10,000, Respondent withheld $2,500 for himself as fees for professional services. Hall complained that this was in excess of what she authorized to be deducted. Respondent claimed Hall owed him for past services and for representing her daughter and son at her request. It is clear that a dispute existed as to the amount of the fee.
3.The Patricia Marshall Complaint.
In September of 1989, Respondent agreed to represent Marshall on a wrongful death claim. They entered into a written contingent fee contract which entitled Respondent to a twenty-five percent fee of any recovery if there was no trial. The case was settled prior to trial.
In November of 1989, Respondent received $10,331.55 as a partial payment on medical bills and funeral expenses. In December of 1989, Respondent paid himself in lieu of fees $8,382.00 from the $10,331.55 received without the consent of the client or the court.
Additional funds were received in an amount of $62,372.91. Of this $40,000 never went into his trust account. Marshall made unsuccessful demands for all of her share of the settlement proceeds. Respondent admitted that he had commingled these funds with his own funds either in the trust account or through the use of the bank drafts in the safe. Marshall ultimately retained different counsel who also made repeated demands upon Respondent for payment. Finally after months of demands, the remaining amount due of $3,877.43 was delivered to Marshall.
Respondent now admits that he failed to promptly account for these funds and failed to keep proper records of trust account transactions concerning this matter.
[853]*8534. Failure to Respond to the Disciplinary Board.
On June 18, 1991, the Board asked for a response to the Hall complaint within ten days.3 No timely response was rendered. On July 9, 1992 the Board sent a second request for a response, citing In re Rude, 88 S.D. 416, 221 N.W.2d 43 (1974). A response was finally received on July 19, 1991.
On November 14, 1991 Respondent admitted service on a subpoena duces tecum which directed him to produce his trust account ledgers and bank records at the Board meeting on December 5th. Respondent appeared at that meeting but did not produce all the subpoenaed records. In large part this is because these client ledger sheets did not exist. Respondent agreed to make client ledgers and deliver them by December 12, 1992. This he failed to do. He was noticed to a second hearing before the Board on January 3, 1992 at which time he appeared and finally produced the subpoenaed records.
Respondent’s conduct towards the Board in its attempt to investigate the Marshall complaint was largely the same. On August 14, 1992, the Board requested that he respond within ten days to the complaint. No response was received.
On October 29, 1992, the Board again requested a response citing sanctions for failure to do so pursuant to In re Rude. No timely response was forthcoming.
At the hearings Respondent attended, he blamed his lack of attention to his clients and the Board on health problems such as cancer treatment. However the real reason is that he had become a chronic abuser of alcohol. Respondent subsequently described his condition at that time as follows:
I was unresponsive to complaints directed to me by the Disciplinary Board and did not timely respond by way of explanation or by way of providing copies of my records. At the time I was only interested in continuing my drinking to avoid the reality and the hurt that was mine. I did not go to my office, refused new clients, did not pick up mail and generally failed to do anything except plan my life to provide opportunity for drinking.
His condition deteriorated to a point that concerned family, friends and attorneys convinced him to enter in-patient alcohol treatment in August of 1992. He successfully completed this program and has followed aftercare recommendations. It appears that he has not had a drink since being released from treatment.
On December 18, 1992 a hearing was held by the Board concerning the Marshall complaint. Counsel for Respondent appeared but Respondent did not and provided no specific explanation nor advance notice for his absence. His counsel reported having difficulty corresponding or dealing with him.
At oral argument before this Court on April 19, 1993, it was reported that Respondent has regained control of his life, and refrains from the use of alcohol.
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GILBERTSON, Circuit Judge.
INTRODUCTION
This is a disciplinary proceeding against Respondent Tidball, a member of the State Bar of South Dakota. Respondent has admitted the factual allegations against him. As such, the facts will be set forth in an abbreviated manner.1 There remains for this Court, the issue of a determination of the appropriate manner of discipline. The Disciplinary Board of the State Bar of South Dakota (Board) has recommended disbarment.
FACTS
Respondent graduated from the University of South Dakota School of Law in 1966 and was admitted to the practice of law in [852]*852South Dakota on July 28, 1966. He has spent his entire professional career in the Pierre/Ft. Pierre area. He has engaged in a general private practice as a sole practitioner and in a partnership setting. At all times pertinent herein, he was practicing alone.
1. Trust Account Violations.
An audit by the Board established that between November 30, 1989 and December 15, 1992, Respondent did on numerous occasions commingle funds belonging to clients with his own personal funds. During this period Respondent had fallen on financial hard times and was being pressed by creditors. To avoid their garnishment attempts, he placed his personal funds in his trust account. He claims to have also kept client funds commingled along with his funds in bank drafts in his office safe to avoid his creditors. Deposits and withdrawals were made with such randomness that it is impossible to tell with exactness which transactions were of a personal nature and which involved a specific client. He failed to keep contemporaneous ledgers or other records which would allow him to render appropriate accountings to his clients upon request.
Several times, the balance in his trust account fell below what appears to be the amount of funds he held in trust for clients. His defense is that the remainder of the client funds were commingled with his personal funds in the bank drafts which were in his safe.2
2. The Glenda Hall Complaint.
In 1990 Respondent commenced representation of Hall in a divorce action. There never was a written fee agreement nor memorandum confirming any fee arrangement. The action was completed by settlement on May 16, 1991. Respondent drafted for his client’s signature, an authorization to accept $10,000 as a settlement for her share of the marital assets. The authorization also stated that the legal fees were to be deducted from this amount. Hall signed it with the stipulation “legal fees not to exceed $1,000.”
Upon receipt of the $10,000, Respondent withheld $2,500 for himself as fees for professional services. Hall complained that this was in excess of what she authorized to be deducted. Respondent claimed Hall owed him for past services and for representing her daughter and son at her request. It is clear that a dispute existed as to the amount of the fee.
3.The Patricia Marshall Complaint.
In September of 1989, Respondent agreed to represent Marshall on a wrongful death claim. They entered into a written contingent fee contract which entitled Respondent to a twenty-five percent fee of any recovery if there was no trial. The case was settled prior to trial.
In November of 1989, Respondent received $10,331.55 as a partial payment on medical bills and funeral expenses. In December of 1989, Respondent paid himself in lieu of fees $8,382.00 from the $10,331.55 received without the consent of the client or the court.
Additional funds were received in an amount of $62,372.91. Of this $40,000 never went into his trust account. Marshall made unsuccessful demands for all of her share of the settlement proceeds. Respondent admitted that he had commingled these funds with his own funds either in the trust account or through the use of the bank drafts in the safe. Marshall ultimately retained different counsel who also made repeated demands upon Respondent for payment. Finally after months of demands, the remaining amount due of $3,877.43 was delivered to Marshall.
Respondent now admits that he failed to promptly account for these funds and failed to keep proper records of trust account transactions concerning this matter.
[853]*8534. Failure to Respond to the Disciplinary Board.
On June 18, 1991, the Board asked for a response to the Hall complaint within ten days.3 No timely response was rendered. On July 9, 1992 the Board sent a second request for a response, citing In re Rude, 88 S.D. 416, 221 N.W.2d 43 (1974). A response was finally received on July 19, 1991.
On November 14, 1991 Respondent admitted service on a subpoena duces tecum which directed him to produce his trust account ledgers and bank records at the Board meeting on December 5th. Respondent appeared at that meeting but did not produce all the subpoenaed records. In large part this is because these client ledger sheets did not exist. Respondent agreed to make client ledgers and deliver them by December 12, 1992. This he failed to do. He was noticed to a second hearing before the Board on January 3, 1992 at which time he appeared and finally produced the subpoenaed records.
Respondent’s conduct towards the Board in its attempt to investigate the Marshall complaint was largely the same. On August 14, 1992, the Board requested that he respond within ten days to the complaint. No response was received.
On October 29, 1992, the Board again requested a response citing sanctions for failure to do so pursuant to In re Rude. No timely response was forthcoming.
At the hearings Respondent attended, he blamed his lack of attention to his clients and the Board on health problems such as cancer treatment. However the real reason is that he had become a chronic abuser of alcohol. Respondent subsequently described his condition at that time as follows:
I was unresponsive to complaints directed to me by the Disciplinary Board and did not timely respond by way of explanation or by way of providing copies of my records. At the time I was only interested in continuing my drinking to avoid the reality and the hurt that was mine. I did not go to my office, refused new clients, did not pick up mail and generally failed to do anything except plan my life to provide opportunity for drinking.
His condition deteriorated to a point that concerned family, friends and attorneys convinced him to enter in-patient alcohol treatment in August of 1992. He successfully completed this program and has followed aftercare recommendations. It appears that he has not had a drink since being released from treatment.
On December 18, 1992 a hearing was held by the Board concerning the Marshall complaint. Counsel for Respondent appeared but Respondent did not and provided no specific explanation nor advance notice for his absence. His counsel reported having difficulty corresponding or dealing with him.
At oral argument before this Court on April 19, 1993, it was reported that Respondent has regained control of his life, and refrains from the use of alcohol. He wishes to retain his right to practice law only in the capacity of working for a corporation and does not intend again to engage in private practice.
LEGAL ANALYSIS
Rule of Professional Conduct 1.15(a) governs the matters of the use and misuse of the trust account. It states in part:
A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated_ Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [854]*854five years after termination of the representation.
See also SDCL 16-18-20.1.
Using client funds without the client’s permission displays an unfitness to practice law and in no way can be excused by an attorney’s negative cash flow. Matter of Pier, 472 N.W.2d 916, 917 (S.D.1991); In re Rude, supra.4 The mere fact that the balance in an attorney’s trust account has fallen below the total of amounts held in trust for clients supports a conclusion of misappropriation. This is a serious violation of an attorney’s professional ethics which is likely to undermine the public’s confidence in the legal profession. Giovanazzi v. State Bar of California, 28 Cal.3d 465, 169 Cal.Rptr. 581, 585-86, 619 P.2d 1005, 1009 (1980).
Respondent’s defense is that the balance of the client funds were contained in the $24,500 in bank drafts in his safe written from a Jerry Hirsch to Jerry Hirsch. Respondent also states that he did this not to injure clients, but to protect his personal assets from his garnishment attempts.
Respondent’s partial justification for his conduct is that he used the bank drafts to avoid garnishment of his client’s funds by his personal creditors. This fear has no legal basis. SDCL 21-18-12 authorizes garnishment only where the garnishee has money in his possession “belonging to the defendant, or in which he shall be interested....”
Property and funds owned by, or due to, defendant as a trustee are not subject to garnishment for his individual debts.... A bare legal title in defendant is insufficient where the equitable or beneficial interest is in another.
38 C.J.S. Garnishment, § 81 (1943).
An attorney who collects money for his client holds the same as a trustee and the circumstances under which he is liable are much the same as any other type of trustee. Wangsness v. Berdahl, 69 S.D. 586, 13 N.W.2d 293 (1944). See also, SDCL 16-18-20. In other words, there must be a legal basis for a recovery against the client, rather than the attorney, for the client’s funds in the attorney’s trust account to be subject to garnishment. Egland v. Neill, 75 S.D. 361, 65 N.W.2d 576, 577 (1954).5
This type of trust account conduct is in clear violation of Rule 1.15. Such action was specifically condemned by the Iowa Supreme Court in Committee on Professional Ethics v. Gross, 326 N.W.2d 272 (Ia.1982). We also condemn it.
The unilateral removal of the $2500 “fee” from the Hall divorce proceeds is governed by Rule 1.15(d)(2)(d): “A lawyer shall promptly pay or deliver to the client as requested by a client the funds, securities or other properties in the possession of the lawyer which the client is entitled to receive.” It is also a violation of Rule 1.15(b) which states:
Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and upon request by the client or third person, shall promptly render a full accounting regarding such property.
[855]*855Respondent maintains that Hall was not entitled to receive the $1500 in dispute as it was his fee. Such disputes are addressed by Rule 1.15(c) which requires: “if a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.” The Comments to Rule 1.15 are instructive in this type of a situation:
Lawyers often receive funds from third parties from which the lawyer’s fee will be paid. If there is a risk that the client may divert the funds without paying the fee, the lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a client into accepting the lawyer’s contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly distributed.
Respondent clearly did not follow this procedure but instead pocketed the $2500 when $1500 of it was in dispute.
3. The Patricia Marshall Complaint.
The commingling of the Marshall assets held in trust and Respondent’s failure to promptly pay them over to Marshall despite repeated demands, stand as an additional violation of Rule 1.15(a), (b) and (d)(2)(d).
Such conduct may also be in violation of SDCL 16-18-23 which makes it a criminal offense for an attorney in possession of a client’s property to refuse to pay or deliver it in a reasonable time after demand. In re Rude.
4- Failure to Respond to the Disciplinary Board.
The numerous failures to promptly reply to Board demands for responses and subpoenas are a violation of SDCL 16—19—54, 16-19-55 and 16-19-56 and are a separate basis for discipline. Matter of Discipline of Kirby, 336 N.W.2d 378, 380 (S.D. 1983). It is also the basis for increasing the severity of the appropriate discipline imposed for the commission of other acts of unprofessional conduct. Matter of Discipline of Kintz, 315 N.W.2d 328, 331 (S.D. 1982). Today we reaffirm in the strongest possible terms the admonition given the bar in In re Rude:
The members of the Grievance Committee perform a difficult and all too often thankless task in investigating charges of professional misconduct against their brother lawyers. In this instance the members of the Committee gave respondent several opportunities to appear before the Committee and offer his explanation regarding the charges that had been made against him, opportunities that he spurned. We consider respondent’s failure to respond to the communications from the Grievance Committee to be indicative of his attitude towards the serious nature of the complaints lodged by (his clients). Lest anyone consider that the consequences of failing to reply to the Grievance Committee are singularly visited upon the respondent, let this opinion be fair notice that similar inexcusable failures to respond will count heavily in any subsequent formal disciplinary proceedings brought against an attorney. He acts at his peril who treats a communication from the Grievance Committee with the indifference accorded an unsolicited invitation to join a book club, (citations omitted).
88 S.D. at 422-423, 221 N.W.2d at 47. Rude was disbarred with his indifference to the Grievance Committee (subsequently the Disciplinary Board) weighing “heavily against the plea that we exercise leniency in imposing discipline.” Rude, 88 S.D. at 425, 221 N.W.2d at 49, supra.
5. Disciplinary Considerations.
The purpose of attorney disciplinary proceedings is not to punish the attorney but to remove from the profession those whose misconduct has proved them unfit to be entrusted with duties and responsibilities belonging to the office of an attorney so that the public may be protected from further wrongdoing. Matter of Walker, 254 N.W.2d 452, 455 (S.D.1977). Appropriate discipline is determined upon a [856]*856consideration of the seriousness of the misconduct by the attorney and the likelihood of repeated instances of similar misconduct. Kirby, supra, at 380.
We are not unmindful of the insidious effect of alcohol abuse which plague some brothers and sisters of the bar as well as an unfortunately large segment of the public.6 We support treatment efforts to return individuals to productive lives. Matter of Walker, supra, at 455; Matter of Weisensee, 296 N.W.2d 717, 722 (S.D.1980).
Nevertheless the standard which governs our deliberations is clear. We are not to balance the potential for rehabilitation against protection of the public. Our duty to protect the public is paramount and encouragement for rehabilitation must be done within that context. Rude, supra, 221 N.W.2d at 48. Alcoholism per se is no defense. Walker, supra, at 457. The client suffers as much through the misconduct of the alcoholic attorney as if the same misconduct had as its source a calculated evil motive. Matter of Kintz, supra. To hold otherwise would wreak havoc with the process of disciplinary proceedings for all too frequently misconduct by attorneys appears to be attributable at least in part to the factor of alcoholism. Walker, supra, at 455.
The scope of our consideration is broader than the current status of the Respondent. The fact that he has effectively removed himself from private practice may protect his would be clients, but all attorneys in this state are subject to these rules and all citizens of this state desire and deserve the protection afforded by the rules. Matter of Discipline of Bergren, 455 N.W.2d 856, 857 (S.D.1990). “[A]n application of common sense would show that the discipline for attorney misconduct also serves to deter similar conduct in the profession which, in turn, fosters and maintains the ethics of the legal profession.” Matter of the Discipline of Dana, 415 N.W.2d 818, 823 (S.D.1987). “The foundation of an attorney’s relationship with clients and the legal system is trust.” Pier, supra, at 917. Public confidence that the legal profession, under the supervision of this Court, can keep its affairs in order must be zealously maintained. In re Kunkle, 88 S.D. 269, 218 .N.W.2d 521, 527 (1974), Walker, supra; Weisensee, 296 N.W.2d at 722. In an age where the legal profession is under heavy attack a “slap on the wrist ... would not lend credibility to the high ethical standards of the profession.” Weisensee, 296 N.W.2d at 722-723 citing Matter of Voorhees, supra.
We have heard repeated pleas for leniency in the past based on alcohol abuse and probably will hear more in the future. Respondent points to Walker, supra, and requests a similar discipline. The sanction against Walker was suspended upon the fulfillment of certain conditions. Walker had maintained sobriety for a period of two and one half years prior to this Court’s decision. In this case, Respondent did not seek help until the eleventh hour, nearly two months after the Board initially recommended his disbarment. Even at the subsequent hearing in December 1992 on the Marshall matter, he did not attend nor give the Board any reason for this failure and was barely cooperating with his own counsel. Walker is quite explicit on the reason leniency was granted:
[I]t should be made clear to all that our disposition in this case does not signal the advent of a new defense in disciplinary proceedings. We do not hold that alcoholism as a causation factor in mis[857]*857conduct will shield the perpetrator from the consequences of his actions. The respondent did not receive the consideration that we have given him because he is an admitted alcoholic but rather because he is, in our view, a bona fide recovered or arrested alcoholic who has for the'past two and one-half years demonstrated his fitness to continue in the practice of law.7
254 N.W.2d at 457.
As has been noted, the Board recommended disbarment. We are not bound by this recommendation but do give it our careful consideration. Petition of Draeger, 463 N.W.2d 346, 347 (S.D.1990). Respondent has not contested that he is subject to discipline pursuant to SDCL 16—19—33 for his violations of the Rules of Professional Conduct and statutes covering the authority and duties of the Board.
6. Discipline Imposed Upon Respondent.
Our options concerning discipline are set forth in SDCL 16-19-35. They are public censure, placement on probationary status, suspension for up to three years and disbarment. It is our determination that Respondent be suspended from the practice of law for a period of three years. We feel that this adequately protects the public while allowing Respondent to establish a period of sobriety to prove to this Court that he is once again fit to be allowed the privilege of practicing law in South Dakota. While his age of 59 may make re-entry into the legal profession more difficult, it is not impossible and many of our members of the bar continue to actively practice law well after their 62nd birthday.
The three remaining active files in his practice are to be referred to other attorneys and full compliance is ordered with the requirements of SDCL 16-19-78 to 80.
Respondent shall return the $1500 to Glenda Hall.
Respondent must pay interest to Marshall at the legal rate for funds wrongfully withheld for more than a period of fourteen days.
Judgment is rendered against Respondent for all necessary costs as shall be taxable by the clerk as set forth in SDCL 16-19-70.
Respondent may file a petition for reinstatement with the Board pursuant to SDCL 16-19-84 at the conclusion of the three year period of suspension. He is to demonstrate that he has maintained sobriety during the period of suspension and has fully complied with the requirements of this opinion and applicable statutes.
WUEST, Acting C.J., and STEELE, Circuit Judge, concur.
HENDERSON and AMUNDSON, JJ., dissent.
GILBERTSON, Circuit Judge, for MILLER, C.J., disqualified.
STEELE, Circuit Judge, for SABERS, J., disqualified.