ON REHEARING
PER CURIAM.On original deliverance, we held that the burden of proof rested on petitioner to reasonably satisfy the trier of fact that an agreement was made by petitioner’s client, Warren, to the effect that petitioner should have and retain the proceeds of the two condemnation cases in payment for past services rendered by petitioner for Warren. We held further that, after consideration of the evidence, we were left in uncertainty and doubt and were not reasonably satisfied that Warren made the agreement mentioned above. From these premises, we concluded that petitioner had not supported the burden of proof that rested on him and, therefore, decided that the charges against him were sustained and that the judgment of guilt ought to be affirmed.
On application for rehearing, petitioner’s counsel points out that we failed, on original deliverance, to take into account and give effect to the concluding proviso of Rule 27, which recites that no attorney shall misappropriate the funds of his client by failing to pay over money collected by the attorney for the client, “provided the circumstances attending the transaction are such as to satisfy the Board that the attorney acted in bad faith or with fraudulent purpose.”
Rule 27 does not make guilty of misconduct an attorney who merely fails to pay over money collected for his client. The concluding proviso of the rule makes bad faith or fraud on the part of the attorney a necessary element of the offense charged. By the express terms of Rule 27, petitioner cannot be found guilty of violating that rule unless the attending circumstances “are such as to satisfy the Board that the attorney acted in bad faith or with fraudulent purpose.”
Acting through its appropriate officers, the Board charged that petitioner violated Rule 27. Under that rule, the Board, as plaintiff, must “satisfy the Board,” meaning the Board sitting as the trier of fact, that the attending circumstances were such as to show that petitioner acted in bad faith or with fraudulent purpose. On original deliverance, we held that the burden rested on petitioner to prove to our reasonable satisfaction that Warren made the alleged agreement. In so doing, we held that petitioner had the burden of proving the attending circumstances so as to establish his innocence. After further consideration, we are persuaded that such a holding is contrary to the requirements of Rule 27 and is in error.
*127We remain in doubt and uncertainty as to whether or not the evidence shows that petitioner acted under an agreement made by Warren. Reviewing the evidence de novo, without presumption for or against the finding of the Board of Commissioners, we are not reasonably satisfied that petitioner acted in bad faith or with fraudulent purpose. According to Rule 27, the Board has the burden of proving by evidence, to the reasonable satisfaction of the trier of fact, that petitioner acted in -bad faith or with fraudulent purpose.
Petitioner was also convicted of violating Rule 33, which forbids that petitioner be guilty of any deceit or wilful misconduct in his profession. The facts charged as being a violation of Rule 33 are the same facts charged as beine a violation of Rule 27.
From the evidence, we are not reasonably satisfied that, under the circumstances attending the transaction, petitioner acted in bad faith or with fraudulent purpose or that he is guilty of any deceit or wilful misconduct in his profession.
Since the burden is on the Board of Commissioners to prove these matters to our reasonable satisfaction and the Board has not carried the burden of proof which rested on the Board, it is our duty to so declare.
Accordingly, the application for rehearing is granted, the judgment is reversed, and a judgment will be here rendered finding petitioner not guilty. Rule No. 28 of Section B of Rules Governing The Conduct of Attorneys, 239 Ala. XXIX; Title 46, § 25(e), Code 1940; Ex parte Cooke, 263 Ala. 481, 486, 83 So.2d 195, 200, on rehearing ¶ [7]; Ex parte Thompson, 228 Ala. 113, 127, 152 So. 229, 241, 107 A.L.R. 671, on rehearing ¶ [9],
Rehearing granted.
Reversed and rendered.
LIVINGSTON, C. J., and LAWSON, SIMPSON, MERRILL, COLEMAN, and KOHN, JJ., concur.