dissenting.
I must respectfully dissent from the Opinion and Order of the majority because Greene has not yet sustained his burden of proving his fitness for reinstatement to the *237practice of law as required by prior cases of this Court. The Board of Governors of the Kentucky Bar Association was correct when it determined that the application should be denied. This Court has improvidently substituted its view of the case for that of the Board of Governors.
The Majority Opinion has recited in some detail the misconduct which caused Greene to be disbarred in 1972. He was originally admitted to the practice of law in Kentucky in 1958 and also obtained a license to practice law in Florida in 1961. Other than a period from 1960 to 1972, when he lived in Florida and during his one year incarceration, Greene has lived and worked in the Harlan area. He served slightly more than one year in prison and was released in 1974 on five years’ probation which was completed in August 1979.
One of the conditions of his probation was that he pay 25 percent of his gross income to his victims, pro rata, during the five year probation period. After his indictment, but before incarceration, he had repaid $10,000 to his victims and after serving his prison term, he paid an additional $107,000 into court for restitution, for a total of $117,000 repaid. No other significant restitution was undertaken until it became a factor in this reinstatement process.
Greene applied for reinstatement on two previous occasions. His application in 1982 was denied by this Court. In 1987, he again filed for reinstatement, but voluntarily withdrew the application because of his determination that his personal financial situation had not substantially improved since his previous application was denied. At the time the plan was abandoned, Greene had paid an additional $1,268 to the victims.
Greene believes that his post-disbarment financial problems resulted from the court-ordered restitution of 25 percent of his gross income from 1974 to 1979 and the financial assistance he gave his six children by putting them through college. He was unable to pay in full all taxes due and to assist his children at college.
Greene was divorced from his first wife and the mother of his six children in 1979 and remarried in 1990. He has a young child from the second marriage. The second Mrs. Greene is employed and is able to contribute financially to the household.
Since disbarment, Greene has worked in labor relations and coal acquisitions in the coal industry and has performed title abstract work and other duties for attorneys in the Harlan area. He has not practiced law.
As part of his present application for reinstatement, he submitted a voluntary restitution plan whereby he has begun repaying the remaining principal amounts due to the victims of his criminal activity at the rate of 5 percent of his net income, to be paid on a quarterly basis. On March 1, 1994, Greene paid the sum of $1,775 as restitution for that quarter of 1994. The second distribution was made in June 1994, and a third distribution in December 1994.
Greene is now 61 years of age and if reinstated, plans to go into practice with his uncle, an attorney in Harlan, who is said to be close to retirement age. Greene hopes to make full restitution to the defrauded investors in his lifetime, but believes it is reasonably possible to complete restitution in five to seven years. As the majority opinion notes, he hopes to pay more than the minimum 5 percent, and testified that it was quite possible he could pay in the neighborhood of $15,000 to $25,000 per year.
I believe that the Board of Governors of the Kentucky Bar Association was correct when it recommended that Greene be denied reinstatement at this time. Reinstatement to the practice of law after disbarment is provided by SCR 3.520. Reinstatement is not automatic. Such an applicant must complete a minimum number of continuing legal education credits, be certified by the Character and Fitness Committee and the Board of Governors of the Kentucky Bar Association following an appropriate investigation. The applicant bears the burden of proving by substantial evidence his qualification for reinstatement. SCR 3.330; Kentucky State Bar Assn. v. Smith, Ky., 528 S.W.2d 672 (1975). This Court is not bound by recommendations of the Board of Governors, but frequently gives great deference to the recommendation of the Board. The Supreme Court is the *238final arbiter of the facts, the law and the fitness of the applicant to resume the public trust involved in the practice of law. In this ease, the Board properly relied on the factors enumerated in In re Cohen, Ky., 706 S.W.2d 832 (1986).
In Cohen, this Court stated that the reinstatement process necessarily included a review of the nature of the conduct which led to the original discipline, as well as the conduct during the period of disbarment. In this case, the Board of Governors was not persuaded that Greene had satisfied all the standards for reinstatement set out in Cohen. The Board determined that the nature of the original misconduct, mail fraud and misappropriation, is a significant factor to be considered in the reinstatement process. The Board correctly found that Greene has not sustained his burden of proof concerning his appreciation of his prior fraudulent conduct. The Board determined that the rehabilitation process is as yet insufficient to warrant reentry into the legal profession. The Board particularly determined that his conduct and character since disbarment did not show that Greene is worthy of public confidence and trust. It also determined that the ultimate and decisive question is whether an attorney is of good moral character and is fit to reenter with the confidence and privilege of being an attorney. Clearly, the fraudulent conduct which led to Greene’s conviction and disbarment is the total opposite of trust and confidence which should be found in a member of the legal profession. The Board properly found that his sporadic and incomplete restitution efforts earlier were a considerable impediment to reinstatement at this time. The nature and seriousness of the conduct which led to disbarment cannot be overstated. The theft of $270,000 from 26 investors is obviously of great concern in evaluating the qualifications of anyone who wishes to be a lawyer. Although these victims were repaid approximately 40 percent of the principal amount stolen within ten years, pursuant to court order, Greene now hopes to begin voluntarily repaying the remaining 60 percent owed in order to gain reinstatement. The victims of the fraud, some of whom are now dead, or otherwise unknown, after 25 years, have not and will not be made whole because of the passage of time and the lack of interest on the principal originally stolen. Obviously this is a significant factor in the misconduct and resulting harm to the victims.
The Board properly determined that there was a tragic but consistent lack of appreciation for the seriousness of the problem as demonstrated by the 1982 and 1987 requests for readmission prior to Greene getting his financial affairs in manageable order. Greene has a great propensity for confidence and optimism, but his prior conduct does not support such an optimistic view. The fact that Greene is able to propose a repayment plan at all is a result of his filing bankruptcy in 1990. The prudence and selection of financial management during the past 20 years by Mr. Greene is not inspiring. The offer of a 5 percent gross payment to debtors is modest at most.
Greene’s desire to contribute to the education of his children is laudable but borrowing money at credit card interest rates in order to do so is not fiscally sound. Using the limited funds to repay discharged debts or to assume obligations of others is imprudent, particularly if the original victims remain unreimbursed.
The Board was correct in refusing reinstatement because Greene has failed to appreciate the nature and quality of his original mistake. Cohen, supra. Sympathy and mitigation should not be valid considerations in judging the merits of reinstatement. Similar reinstatement was denied to Ollie James Cohen in In re Cohen, Ky., 401 S.W.2d 54 (1966). It is the responsibility of the reviewing Board and the Supreme Court to look beyond individual concerns of mercy for the applicant for reinstatement and to consider the responsibility of lawyers to the public. The responsibility of this Court is to protect the public from anyone who claims to be a lawyer from misdealing or misrepresentation. The considerable confidence of Greene that he can handle these matters is not shared. Certainly there have been significant steps toward personal rehabilitation, but these efforts are not a substitute for current fitness to reenter the practice of law. Although Greene has made considerable progress to*239wards better management of his finances, the task is not yet complete.
I would adopt the decision of the Board of Governors and deny reinstatement.