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The Miss. Bar v. Derivaux

Supreme Court of Mississippi, En Banc

February 20, 2014

THE MISSISSIPPI BAR
v.
J. ALLEN DERIVAUX, JR

DATE OF JUDGMENT: 07/23/2012.

SUSPENDED FROM THE PRACTICE OF LAW FOR TWO (2) YEARS.

FOR APPELLANT: JAMES R. CLARK.

FOR APPELLEE: FRANK G. VOLLOR.

LAMAR, JUSTICE. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

OPINION

NATURE OF THE CASE: CIVIL - BAR MATTERS

LAMAR, JUSTICE

[¶1] In this attorney-misconduct case, we must decide whether the two-year suspension imposed on an attorney by the Mississippi Bar Complaint Tribunal (" Tribunal" ) is sufficient. Finding that the sanction imposed is sufficient, we affirm the Tribunal's decision.

FACTS AND PROCEDURAL HISTORY

[¶2] Allen Derivaux (" Allen" ) was admitted to practice law in 1980. His practice

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included mostly title work and loan closings. Prior to 2009, Allen had a title-agency agreement with a title insurance company which allowed him to write and sell title insurance through the company. However, this agreement was terminated in January 2009. Although the agreement was terminated, Allen continued to hold himself out to lenders and third parties as an approved title agent. Allen continued to conduct title work for approximately nine months after his agreement was terminated and engaged in a pattern of forging and fabricating title commitments, title policies, other documents relating to title work, as well as collecting premiums for title insurance for the loan closings he handled. Allen placed the funds he collected into his lawyer trust account.

[¶3] Eventually, Allen's activities were discovered and a formal bar complaint was brought against him. The Bar alleged that Allen had violated Rules 1.15(b) and 8.4(a, b, c, d) of the Mississippi Rules of Professional Conduct and sought his disbarment.[1] Allen admitted in his response to the complaint that he had engaged in misconduct by forging title policies and accepting title insurance premiums. The case originally was set for trial on October 25, 2010, but was reset to March 10, 2011, after Allen's wife unexpectedly passed away on October 24, 2010.

[¶4] Allen represented himself at the March 10, 2011, hearing. He again admitted that he had engaged in the alleged misconduct, that he knew it was wrong, and stated that he did not know why he did it. Allen testified that he always had intended to find someone else to do the title work for him and to make it right. Allen did not offer any mitigating evidence on his behalf, other than the death of his wife and being left with five children to support and care for on his own. Allen also denied having any health issues. When asked if he thought he should be disbarred, Allen replied that he did not think so because he would not do it again, but that he would accept whatever the Tribunal decided.

[¶5] After taking the case under advisement, the Tribunal found that Allen had violated Rule 8.4 by engaging in conduct that was patently dishonest, fraudulent and deceitful; that he had violated Rule 8.4(b) by engaging in a criminal act that reflected adversely on his honesty, trustworthiness, and fitness as a lawyer; that he had violated Rule 8.4(d) by engaging in conduct that was prejudicial to the administration of justice; that he had violated Rule 8.4(a) by violating one or more rules of professional conduct; and that he had violated Rule 1.15(b) by receiving funds for issuance of nonexistent title-insurance policies. The Tribunal found that no mitigating factors applied and ordered that Allen be disbarred.

[¶6] Allen timely filed a motion for reconsideration. Allen argued that there

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were mitigating circumstances that should be considered and requested a stay of his disbarment pending a hearing or appeal. Approximately twenty practicing members of the Warren County Bar joined in Allen's motion, arguing that Allen's actions were out of character for him and ...


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