I dissent.
Upon a record which conclusively establishes the right of petitioner to be reinstated, the majority holds that reinstatement is not permissible because petitioner still protests his innocence of the felony, the conviction upon which he was disbarred, and because he has not restored money said to have been improperly obtained by him. As will be shown, there was nothing obtained by petitioner and hence there is nothing for him to restore. If lack of penitence is shown by clinging to one’s honest assertion of innocence, then innocence is a crime rather than a virtue. If petitioner has not now shown that he is rehabilitated, he never will be able to *549do so. In the face of a record which conclusively establishes rehabilitation, the majority arbitrarily says to him: “You must give up all hope of regaining your former position as a member of the bar.” Let us look at the facts.
First it was found that prior to the time of petitioner’s disbarment, disciplinary proceedings were pending against him before the Board of Governors and the board had recommended disbarment. Petitioner’s petition to this court for a review of those proceedings was dismissed by this court because of the disbarment by reason of his conviction of a felony on a different charge. (Feinstein v. State Bar, 12 Cal.2d 461 [85 P.2d 869].) Thus no review of those proceedings has been had by this court and they have no bearing on the instant case. The charge in those proceedings arose out of the issuing and passing of two fictitious checks of $475 each, and eleven checks totalling $4,200. According to the findings in those proceedings, petitioner had as a client a Mr. Zimmer who controlled a corporation which owned a café. For his legal services to the corporation and past loans, petitioner was to receive 25 per cent of the profits of the business; later changed to fixed weekly installments. Zimmer was short of capital and had an arrangement with tellers of a Hollywood bank permitting him to overdraw his and the corporation’s accounts, which eventually led to a loss by the bank of $20,000. Zimmer told petitioner of the arrangement and asked him to loan him checks drawn on his account in the same bank and Zimmer would cover them with cash deposits to petitioner’s account from café receipts; some checks were to be sold to a third person. The arrangement was carried out by petitioner who gave checks which he had rendered nonnegotiable by drawing a line through the word “order.” This would not ordinarily be observed. The Zimmer affair resulted in his being indicted by a federal grand jury but the proceeding was dismissed. It also appears that the president of the bank told petitioner that he was not liable, as he did not know of the deal between Zimmer and the bank tellers. Hence, even if we give consideration to the Zimmer transactions, petitioner was under no obligation to refund anything to the bank. He received nothing and we have the bank president’s word that nothing was owing.
In addition to the foregoing facts, the committee also found that since petitioner’s release from prison in 1940 he has operated the business of public accountant, having obtained a certificate in 1945 from the state board to do so. In addi*550tion to his own testimony he produced 13 witnesses, three o£ whom were attorneys, one an optometrist and the others persons who had employed him as a bookkeeper. Those for whom he kept books testified that he faithfully discharged his duties, and in one case that he had been entrusted with substantial sums of money and faithfully accounted for his trust. Some of those witnesses said he had not handled matters for them involving a trust or confidential relationship. One attorney testified that he was rehabilitated and knew the law, but his only relationship with him consisted of discussions of his own cases. Another, a relative, said he had been rehabilitated. As to his legal ability, he testified that he read advance sheets of accountant’s tax service from time to time, received the Southern California Law Review and read a tax magazine containing comments on tax law. The committee concluded by finding that petitioner had failed to sustain the burden of proving that he had rehabilitated himself, or had the moral qualifications, or had sufficient learning or ability in the law.
The recommendation of the board is based solely upon the conduct of petitioner between 1935 and 1937, and the asserted failure of petitioner to prove his rehabilitation. No other evidence was offered by it. On the other hand, petitioner produced testimony by nine witnesses engaged in various businesses who have employed him as tax consultant, accountant and bookkeeper for periods ranging from five to eleven years. They all testified that his work was accurate and satisfactory. Various remarks were made to the effect that his character is “above reproach"; that “if he conducts himself as well as an attorney as he does as an accountant he would make a very good attorney"; that he is honest in all respects, trustworthy and highly honorable; that: “I would not be afraid to trust the man with the entire store and let him take care of it. I trust him fully, he is a trustworthy person. ’ ’ While only one witness testified that he had entrusted him with his funds, others said they would be willing to do so if there were any occasion for it. Some witnesses testified that they had not employed him in a confidential capacity, and apparently they had no occasion to do so, but if they had, they would not hesitate to engage him for such work. Some of the witnesses knew and some did not know he had been disbarred in 1938, but some of those without that knowledge said it would have made no difference in their testimony.
*551Three attorneys practicing in Los Angeles testified for petitioner. One who had known him for 26 years and was associated with him for a short time, knew of the disbarment and talked to him about it, testified that he now has a good sense of morality, has proven himself to be of good moral character and fit to practice law. Another testified to substantially the same effect. Counsel for petitioner in this proceeding, a brother-in-law of petitioner, testified that he has known petitioner since 1944; has had discussions on legal questions with him and found him understanding of them; that petitioner is morally rehabilitated. An optometrist, who had been a friend for 15 years, stated that petitioner had a good reputation for honesty.
Petitioner testified at length regarding his activities both before and after disbarment in which he denied any wrongdoing in the Zimmer matter; that he did not make restitution to the bank or anyone else because no money was received by him and he did not incur any liability or indebtedness. He made special studies in accounting in prison and thereafter, but none in law.
It is the position of respondent that the burden was on petitioner to show that he had become rehabilitated, is now of good moral character and learned in the law (see Beeks v. State Bar of California, 35 Cal.2d 268 [217 P.2d 409] ; Rules of Procedure of The State Bar, rule 52); that the past conduct of petitioner discloses a mental attitude of a person who would commit a wrong when placed in a position of trust and confidence if he thought he could escape retribution.
In respect to the latter contention it would seem more accurate to describe petitioner’s mental attitude to be that of an attorney who would use his office to obtain wrongfully something from third persons with whom he did not occupy a position of confidence, as the crime of which he was convicted, or which, like the Zimmer affair, did not involve the defrauding of his client but the gaining of something from someone else for his client and himself. And he has conclusively proven by the many witnesses above mentioned that he is not now the kind of a person who would attempt to obtain money from others by fraud. Indeed it has been held that the conduct leading to the prior disbarment is too remote to be considered on application for reinstatement (In re Stoller, 160 Fla. 769 [36 So.2d 443]), and the essential question is whether he has reformed and his moral stability has been restored. It must be remembered that prior to the *552incidents above mentioned, which, occurred between 1935 and 1937, he had not been involved in any difficulty and his good moral character was established when he was admitted to the bar.
Moral reformation or rehabilitation has long been a perplexing problem to such experts as penologists, psychologists, theologians and social workers. When laymen endeavor to ascertain the fact on the evidence of lay witnesses, the problem becomes even more complex. It is very difficult for an attorney seeking reinstatement to produce witnesses who have sufficient intimate knowledge of his conduct both before and after his disbarment to give an opinion as to whether the applicant has been fully rehabilitated. In most cases, witnesses available to the applicant are those who, because' of their association with him after his disbarment, can testify that he then, at the time of the hearing, has a good moral character—a reputation for that character. This evidence is pertinent because a strong inference flows from his continuous good character since disbarment that he will not again resort to practices which might bring him into disrepute. To weigh against that evidence the nature of his misconduct and conclude that he has not been rehabilitated, is to reject such testimony and the inference which flows therefrom. It verges on reaching a conclusion that some misconduct may be considered so reprehensible that reformation is impossible. If it does not go that far, the decision of the arbiter becomes mere speculation, because he is required to weigh the seriousness of the wrong committed against positive evidence that the person now has a good character, the effect of the former factor on possibility of reformation being a mere matter of personal opinion which the applicant is helpless to supply evidence to rebut. The gravity of the offense should not, therefore, be of compelling consequence. The character or nature of the misconduct is of importance however, that is, what was done under what circumstances. It is then possible for the applicant to present evidence by acquaintances that under circumstances of a similar character generally he has properly conducted himself—has hot fallen into a similar pattern of wrongdoing. Of course, the length of time that applicant has kept himself on the side of rectitude is important, for it may be inferred that the longer he has been honest, the more likely he will stay that way. In this connection, the majority opinion suggests that the testimony of petitioner’s witnesses shows that *553it was not based on circumstances different from those existing before disbarment; they thought he was honest before and still think he is. That is not true of all of the witnesses and does not erase the positive, unrefuted evidence that petitioner is now of good moral character.
In the instant case petitioner has produced such evidence. He has shown generally, without dispute, that he now has a good moral character. While some of his witnesses said they had not employed petitioner in a confidential capacity, others had, and it should be clear that where one employs another to keep his books and prepare his tax returns, the employer is placing all the facts relating to his business in the employee’s hands, a thing he would not do if he did not trust the employee. In tax return work, applicant had an opportunity to defraud the government to his employer’s direct benefit and his own incidental benefit, but did not do so. If he had, it would be a pattern of misconduct similar to that in which he indulged between 1935 and 1937. Neither the committee nor the board found that they disbelieved petitioner’s witnesses. Over 12 years have elapsed since the disbarment. If that cannot be considered sufficient time, then most of our parole proceedings and penalties for various offenses lack a sound foundation.
Furthermore, it will be recalled that petitioner was granted a full and unconditional pardon by the Governor. While it has been held that a pardon does not restore to a disbarred attorney the right to practice law (Wettlin v. State Bar, 24 Cal.2d 862 [151 P.2d 255]; In re Lavine, 2 Cal.2d 324 [41 P.2d 161, 42 P.2d 311]), it is clear that great weight must be given to pardons such as the one here involved. The pardon granted petitioner was pursuant to provisions added to the Penal Code in 1943. (Pen. Code, §§ 4852.01-4852.2.) Thereunder a released prisoner may file with the superior court of the county in which he resides a notice of intention to apply for a “certificate of rehabilitation.” (Pen. Code, § 4852.01.) “During the period of rehabilitation the person shall live an honest a/nd upright life, shall conduct himself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land.” (Emphasis added.) (Id., § 4852.05.) After the period for rehabilitation has expired he may apply to the court for a “declaration of the fact of his rehabilitation”—for a “certificate of rehabilitation.” (Id., § 4852.06.) Notice is given of the application to the district attorney, chief of police and Governor. (Id., § 4852.07.) *554A hearing is had in which is considered testimony and “all records and reports relating to the petitioner and the crime of which he was convicted, including the record of the trial, the report of the probation officer, if any, the records of the prison from which the petitioner has been released showing his conduct during the time he was there imprisoned, the records of the prison doctor and the prison psychiatrist, the records of the parole officer concerning him if he was released on parole, the records of the Youth Correction Authority concerning him if he has been committed to the authority, the records of the chief of police or sheriff upon whom the notice of intention was served, and written reports or records of any other law enforcement agency concerning the conduct of the petitioner since his release on parole or discharge from custody.” (Id., §4852.1.) Moreover, the court “shall require from the district attorney an investigation of the residence of the petitioner, the criminal record of the petitioner as shown by the records of the Bureau of Criminal Identification and Investigation, and the investigation of any representation made to the court by the applicant, and the district attorney shall file with the court a full and complete report of the results of said investigations, and shall require from the district attorney and the chief of police or sheriff having jurisdiction as provided in subdivision (a) of Section 4852.02 written reports setting forth all matters within their knowledge relating to the conduct of the petitioner during his period of rehabilitation, including all matters mentioned in Section 4852.11.” (Id., §4852.12.) (It should be noted that many more sources are used to determine rehabilitation than are customarily available in reinstatement proceedings before The State Bar.) If the court after the hearing “finds that the petitioner has demonstrated by his course of conduct Ms rehabilitation and his fitness to exercise all of the civil and political rights of citizenship, the court shall make an order declaring that the petitioner has been rehabilitated and recommending that the Governor grant a full pardon to the petitioner.” (Emphasis added.) (Id., § 4852.13.) Thus, the precise fact, moral rehabilitation and whether petitioner has exhibited a good moral character, decided by the court, is presented to The State Bar on application for reinstatement. It was observed by this court, with respect to the use of a transcript of testimony at a criminal trial in a disbarment proceeding: “Petitioner was prosecuted in the name of the People of California, and the trial was *555conducted by attorneys representing the People. In the present proceeding the case against petitioner is presented by The State Bar, acting as the arm of this court and also representing the People of the State. In reality the parties are the same. Petitioner’s contention that the subject matter is not the same is based on the fact that this proceeding is for disbarment, whereas the earlier case was a criminal prosecution. The Legislature, however, aware that a disbarment proceeding is different from any other type of action, could hardly have intended to preclude the use of the transcript of an earlier proceeding in a proceeding for disbarment. The State Bar seeks to prove the same facts that the public prosecutor sought to prove so that both proceedings actually do concern the same matter.” (Werner v. State Bar, 24 Cal.2d 611, 616 [150 P.2d 892].) It cannot be doubted, therefore, that petitioner’s certificate of rehabilitation is a very cogent factor. It is not like an ordinary pardon where the motive or basis may be merely sympathy or forgiveness.
A point is made of the failure of petitioner to make restitution. This is not a case of misuse of a client’s funds and here it does not appear that petitioner received anything or that anyone was entitled to or claimed a right to the restoration of anything.
Respondent claims a lack of showing of legal ability to practice. As above shown, there is evidence that petitioner has such ability. Moreover, he is a college graduate, a graduate of a law school of high standing, and practiced law for over ten years. It will not be presumed he has lost his knowledge. The presumption is the other way. (See Friday v. State Bar, 23 Cal.2d 501 [144 P.2d 564].) Moreover, petitioner offers to take a legal examination if this court deems it necessary.
From the foregoing it is apparent that the only just and and reasonable result is reinstatement. The basis of the majority opinion seems to be that petitioner has not made a lachrymose display of penitence, or come to the Throne of Grace humbly begging forgiveness for sins he claims not to have committed. Not only that, but he must apparently produce witnesses who have heard him shout from the rooftops that he was a sinner but has forsaken his sins and is now redeemed. The majority seems to have forgotten that deeds speak louder than self-serving protestations. By the record petitioner has conclusively demonstrated that his conduct since disbarment has established rehabilitation. Nothing more should be required under any system which has for its *556objective the accomplishment of the American ideal of “Equal justice under law.”
I would reinstate petitioner as a member of the bar.
Petitioner’s application for a rehearing was denied October 9, 1952. Carter, J., was of the opinion that the petition should be granted.