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AN ATTORNEY (JOHN C. HOFFMAN) v. MS STATE BAR ASSOCIATION

JUNE 03, 1987

AN ATTORNEY (JOHN C. HOFFMAN)
v.
MS STATE BAR ASSOCIATION



EN BANC

ANDERSON, JUSTICE, FOR THE COURT:

This appeal proceeds from the disbarment of John C. Hoffman by the MS State Bar Association. This action comes as the result of appellant's involvement or participation with employees of Aetna Finance Company to defraud that company of money where appellant was serving as counsel.

The complaint tribunal adjudged appellant guilty of misconduct in violation of certain disciplinary rules of the Code of Professional Conduct of the MS State Bar.

 After a painstakingly thorough examination of the facts and the applicable law in this case, we likewise find that appellant was guilty of unprofessional conduct. However, for reasons explained herein, we reverse the judgment of disbarment by the Complaint Tribunal and order that appellant be suspended from the practice of law for a period of one year.

 FACTS

 Appellant was appointed Long Beach City Prosecutor in 1977 and served as city attorney from 1981 through 1984, when he took a leave of absence.

 He began work for Aetna Finance Company, a subsidiary of IT&T in Gulfport in 1978. His primary duty was to handle real estate matters, but he agreed to handle collections as well. For these services he was to be paid on a schedule. Appellant was also an agent for U. S. Life Title Insurance Company.

 Bill Rivenbark was branch manager of the Aetna Gulfport office from 1976 through 1982 and Travis Lott was regional manager until 1983 with his office located in the Gulfport office.

 These two persons, along with others, participated in schemes wherein Aetna was defrauded of more than $500,000, mainly through improper loans to themselves, their families and friends. It is with Lott and Rivenbark that the appellant worked and is accused of having participated in various fraudulent schemes. Charges were brought against appellant stemming from his involvement in the two transactions described below:

 A. On October 2, 1979, Oscar Joseph Nile executed a deed of trust to Aetna secured by certain real property (two lots) in Hancock County. He subsequently defaulted and the appellant completed foreclosure on the property on behalf of Aetna in January 1981. Lott and/or Rivenbark offered to sell the property to appellant for $2,500. The sale was approved by the home office and appellant purchased the property in March 1981.

 It is first alleged that the appellant, Rivenbark and Lott had agreed that appellant would be reimbursed the purchase price of the property from Aetna funds by submitting bills for services not rendered and charging double his fees for services rendered. The three would then split the proceeds of the resale of the property.

 Appellant admits purchasing the property but contends the double payments were reimbursements for past services rendered to Aetna. Appellant testified that in the past he received no payment for claims and deliveries, replevins and for transactions where the company recovered no money. In 1980 or 1981, Lott supposedly approached him and informed him that in the future he would be paid $50 for those

 services. Lott told him that all of the other attorneys in this district had been paid and it was not fair that he had not been paid for his services. Lott then orally promised that he would receive double payments for these services for the next four or five months to make up for unpaid arrearage. This was not authorized by the company.

 George Payne, assistant chief of police in Gulfport, and Ken Pell, chief of police in Long Beach and a personal friend of appellant's, interviewed the appellant during the Aetna investigation. Both testified that Appellant admitted that Lott and Rivenbark had agreed to repay the purchase price of the property to him by means of the fraudulent billing and that he received said payments. District Attorney Cono Carrana testified appellant also made such admission to him. Robert Barrett, a member of the grand jury testified that appellant made such admission in that hearing.

 Appellant listed the property for sale, but received no offers. Sometime later Lott and/or Rivenbark informed appellant they had a buyer. Appellant prepared the deed and the buyer, Linda Allen, a/k/a Linda Joyner (hereinafter Allen) purchased the property for $3,600 in January 1982. Allen was Rivenbark's sister. Appellant contends he did not know of the relationship at the time.

 On the day of the sale, appellant admits paying a cash "finder's fee" to Lott and/or Rivenbark in the amount of $500 to $800. Records show that appellant paid taxes on the full sale amount without deducting the finder's fee.

 Barrett testified that the appellant admitted before the grand jury that he paid $800 each to Lott and Rivenbark as their share of the land transaction. D. A. Carrana also testified to such admission (using Barrett's notes taken during the grand jury hearing to refresh his memory). Officer Payne testified that appellant admitted paying $800 during the interview.

 Despite company rules prohibiting loans to family members, Allen received a $15,000 loan from Aetna, arranged by Rivenbark, on the property purchased from appellant.

 Secondly, it is alleged that appellant prepared and signed a title policy of insurance on the property knowing the deed of trust had not been recorded as indicated in the document.

 The main Aetna office requested the paper work and insurance on the Allen property (in a random selection) and a title policy was prepared. The policy bore appellant's signature on the cover sheet and falsely represented that a deed of trust had been filed. It is noted that the appellant was under no duty to file the deed of trust, the allegation is that he submitted papers knowing the deed of trust had not been filed at all.

 Appellant contends he was asked to do a title binder on the property. He did the binder but was not requested and does not remember issuing the policy. Appellant further asserted that there were several errors on the interior of the policy that were not typical of work coming from his office. He stated that since the cover sheet contained no name or policy identification, that sheet could have been taken from one of a number of other policies in his office. Appellant also surmised that the policy might have left his office accidentally; via Sherry Lott, wife of Travis Lott who was employed by appellant as an abstracter in his office from 1979 until 1984; or that Lott himself could have used Sherry's keys to gain access to the office and take the cover sheet.

 DA Carrana obtained a copy of the title policy from Bill Rivenbark. Carrana, Pell and Payne all testified that Caranna showed appellant a copy of the title policy during the earlier interview and interrogation ...


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