I dissent from the conclusion reached in the majority opinion. I am in accord with the first portion of that opinion, wherein it is held that the correctness of the judgment in the disbarment proceedings in 1920 is concluded by the decision upon appeal therefrom and that that matter will not be again considered. I am also in accord with the general policy announced by the opinion in the quotation from the case of In re Mash, 39 Cal.App. 548, 550 [179 P. 897].
We now come to the action of the Board of Governors of The State Bar of California, in the present proceeding, in denying petitioner reinstatement as a member of the bar. Eight years after his disbarment petitioner filed with *Page 746 the said Board of Governors his petition for reinstatement as an attorney at law and an order was made by said board referring the application to the committee of bar examiners, before whom a hearing was had. This committee filed with the Board of Governors their findings and recommendations, in which it was found in favor of petitioner's mental qualifications, but in which it was also found "that applicant is not in possession of such moral qualifications as to entitle him to reinstatement."
As stated in the majority opinion, this court will regard petitioner's proceeding in this court as an application for admission to the bar and we are not bound by the findings of the said committee nor the acceptance thereof by the said board. It is argued, in effect, however, by the attorney for respondent that petitioner has not sustained the burden of showing such moral qualifications as to entitle him to reinstatement.
The argument is based upon but two matters revealed by the record. The first concerns an alleged concealment of assets in proceedings in bankruptcy. It is asserted by respondent that at the time petitioner filed his schedule of assets in the bankruptcy proceeding he believed, erroneously, it is conceded, that he had an equitable interest in a piece of real property of small value, located at Sawtelle, California, growing out of an unacknowledged and unrecorded deed to his son, which interest he did not list among his assets. Respondent concedes that petitioner had no such interest and that the finding of the referee, when the matter was reopened for hearing, that there were no assets of the bankrupt, was proper. However, it is not necessary to consider this matter and the explanation thereof made by petitioner, as it is immaterial here. It is not disputed that the date of the adjudication in bankruptcy was December, 1919, and that the date of the disbarment was December 30, 1920. Therefore, any intent which petitioner may have had to deal unfairly in the bankruptcy proceeding before his disbarment is not pertinent upon the inquiry here, which is directed to ascertaining whether, since said disbarment, petitioner has developed sufficient moral strength to entitle him to reinstatement.
The other matter urged upon our attention by the respondent involves a business transaction with Mr. and Mrs. *Page 747 Henrich. The outstanding feature of the record is that these people are not only not complaining of this transaction, but are most emphatic in their expressions of satisfaction and of trust, confidence and admiration for petitioner. They deeded to the sister of petitioner a valuable piece of property under a plan by which petitioner was to build thereon a hotel building and to pay Mr. and Mrs. Henrich $1,000 a month from the rentals thereof for thirty years, after which time the property was to belong to petitioner or his estate. There are details of this transaction which probably would not appeal to the business sense of experienced people, but the fundamental thing is that the Henrichs are satisfied therewith; they intended to trust petitioner and still trust him; they were not misled nor deceived. They knew of his disbarment; petitioner told them to consult a lawyer and they had an attorney who attended to their business. They are entitled to freedom to contract as they wish and to trust whom they wish without interference or suggestion by the Board of Governors of The State Bar of California. At the hearing it was pointed out to them that certain disastrous consequences to them were possible if petitioner and his sister did not deal honestly with them and they replied that these matters and things had been explained to them previously by petitioner; that they understood the entire matter from its inception and that they had been and were willing to trust petitioner and his sister and that they had not been disappointed in so doing. They had in their exclusive possession a reconveyance of the property to themselves which they might effectuate as against all the world at any moment by placing it upon record. Petitioner was not acting as their attorney and there is nothing in the record to show fraud or deceit on his part, nor a fiduciary relationship. Mr. and Mrs. Henrich are people of financial standing and of intelligence, as appears from their testimony at the hearing and from their statements on file in this case, and presumably of some business experience. They are not "two old people" as so effectively argued by respondent. The record discloses that they are about fifty years of age, strong and active; that they contemplated just such a business transaction as they entered into with petitioner, with some other person previously. Since petitioner alleges that *Page 748 he graduated from the university in 1902, after having previously served as a minister of the Gospel, it is fair to conclude that he is as equally handicapped with age as are Mr. and Mrs. Henrich.
It is difficult for me to see how moral delinquency can be predicated upon a business transaction such as this one is, when all parties concerned are emphatically satisfied and indeed grateful and enthusiastic; when all parties, apparently, were well informed of every fact and circumstance and possible consequence attending the steps taken in the transaction and, nevertheless, elected to take such steps and still so elect; when no one has been injured and the Henrichs can, at any time, by their own action, place themselves in statu quo.
While it is true that some of the character witnesses at the hearing did not intimately know petitioner, the record shows that many of them had observed him carefully and for a long period of time and the characters of many of the men who signed his petition and who testified that they were satisfied with his qualifications for reinstatement should be most persuasive with this court, for these men are known to the court to be conscientious and scrupulous in every way and most exacting in their requirements of members of their own profession. It is inconceivable to me that such men would have recommended and urged the admission of an attorney at law to the bar of this state without substantial basis for such action.
While the action of the Board of Governors in disbarring erring attorneys is worthy and necessary for the protection of the public and should be supported when cause therefor exists, there is a correlative responsibility resting upon such board and upon this court not to close the door of hope and repentance to any man. When, after disbarment, with its consequent humiliation and difficulties, a man continues to live in one community for eight years, earning his living and handling transactions involving large sums of money and requiring trust and confidence upon the part of his clients, studiously and earnestly reading and studying law during these years, looking to a possible day of rehabilitation in his profession, and when, after that period of time, he has earned the recommendations of judges of the trial and appellate courts in his community, of lawyers *Page 749 who brought about his disbarment and of others with whom he has worked and been associated during these years, and when the record contains absolutely nothing pertinent against his claim of moral fitness, I think he should be given another chance.
Rehearing denied.