Derivaux v. Mississippi Bar

226 So. 3d 97, 2016 Miss. LEXIS 292, 2016 WL 4051347
CourtMississippi Supreme Court
DecidedJuly 28, 2016
DocketNo. 2016-BR-00084-SCT
StatusPublished
Cited by7 cases

This text of 226 So. 3d 97 (Derivaux v. Mississippi Bar) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Derivaux v. Mississippi Bar, 226 So. 3d 97, 2016 Miss. LEXIS 292, 2016 WL 4051347 (Mich. 2016).

Opinion

LAMAR, Justice,

for the Court:

¶ 1. John Allen Derivaux Jr. brings his Petition for Reinstatement to the Mississippi Bar following a two-year suspension. The Mississippi Bar v. J. Allen Derivaux, Jr., 167 So.3d 164 (Miss.2014) (Derivaux I). Because we find Derivaux has complied with the requirements for reinstatement and has demonstrated full rehabilitation along with the requisite moral character to practice, we accept the Bar’s recommendation and grant Derivaux’s petition.

FACTS & PROCEDURAL HISTORY

¶ 2. Derivaux is a resident of Vicksburg, where (prior to his suspension) he practiced law as a solo practitioner, focusing primarily in real estate, domestic relations, and youth-court representation. As a part of his real estate practice, Derivaux had a title agency agreement with a title insurance company which allowed him to write and sell title insurance. This agreement was terminated in January 2009, but Deri-vaux continued to hold himself out to lenders and third parties as a title insurance agent. He altered forms used in previous transactions by “cutting” and “pasting” information in such a way that the old forms appeared authentic. Derivaux then collected premiums for the fraudulent title insurance policies and placed these funds in his lawyer trust account. Consequently, the Bar initiated an action against Deri-vaux for violation of Mississippi Rules of Professional Conduct 1.15(b), 8.4(a), 8.4(b), 8.4(c), and 8.4(d).

¶ 3. The Mississippi Bar Complaint Tribunal initially ordered disbarment for Der-ivaux; though, following a Motion to Reconsider and a subsequent hearing, the Tribunal amended its decision and ordered Derivaux suspended from the practice of law for two years. The Mississippi State Bar appealed and this Court affirmed the two-year suspension, which began on November 18, 2011. Derivaux I, 167 So.3d 164.

¶ 4. After his two-year suspension expired, Derivaux filed his first Petition for Reinstatement in March 2014. The Bar filed a Motion to Dismiss the Petition, arguing that it was deficient under Mississippi Rule of Discipline 12.7 and Mississippi caselaw. This Court agreed with the Bar and determined that “Derivaux’s Petition also fail[ed] to demonstrate that he possess[ed] the requisite legal education to be reinstated.” Derivaux v. The Mississippi Bar, 144 So.3d 1246, 1249 (Miss.2014) (Derivaux II). Accordingly, this Court held that Derivaux’s petition did not satisfy the requirements “set forth in Rule 12.7 of the Mississippi Rules of Discipline” and granted the Bar’s Motion to Dismiss. Id.

¶ 5. Subsequently, Derivaux filed a second Petition for Reinstatement. In response, the Bar conducted an investigation to determine whether Derivaux was entitled to reinstatement. This investigation included a lengthy deposition of Derivaux. In its Answer, the Bar found that Deri-vaux had satisfied the burden of proof required by this Court to demonstrate that he is worthy of reinstatement.1 Accordingly, the Bar supports Derivaux’s reinstatement.

[99]*99STANDARD OF REVIEW

¶ 6. This Court “has exclusive and inherent jurisdiction of matters pertaining to attorney discipline, reinstatement, and appointment of receivers for suspended and disbarred attorneys.” In re Morrison, 819 So.2d 1181, 1183 (Miss.2001) (quoting In re Smith, 758 So.2d 396, 397 (Miss.1999)). We review the evidence in disciplinary matters de novo, “on a case-by-case basis as triers of fact.” Id.

DISCUSSION

Derivaux’s Petition for Reinstatement fully satisfies the requirements set forth by Rule 12 of the Mississippi Rules of Discipline.

¶7. The fundamental issue in a reinstatement case is “whether [the attorney] has rehabilitated himself in conduct and character since the suspension was imposed.” In re Steele, 722 So.2d 662, 664 (Miss.1998). The Petitioner bears the burden of proving by clear and convincing evidence that he has rehabilitated himself by complying with the requirements of Rule 12, which provides that:

(a) No person disbarred or suspended for a period of six months or longer shall be reinstated to the privilege of practicing law except upon petition to the Court.
(b) Reinstatement to the practice of law following any discipline shall be only upon proof of compliance with any such sanctions.

Miss. R. Discipline 12(a)—(b). In re Petition of Benson for Reinstatement, 890 So.2d 888, 890 (Miss.2004). In Benson, we set forth five requirements which apply to Rule 12 reinstatement petitions. The Petitioner must demonstrate such rehabilitation by: (1) stating the cause or causes for suspension or disbarment, (2) providing the names and current addresses of all persons, parties, firms, or legal entities who suffered pecuniary loss due to improper conduct, (3) making full amends and restitution, (4) showing requisite moral character for the practice of law, and (5) demonstrating the requisite legal education. Id. Further, this Court also will consider the Bar’s position as to reinstatement. Id.

I. Cause for Disbarment and Suspension

¶ 8. Derivaux’s petition fully (though succinctly) acknowledges the behavior which led to his suspension. He states that by forging title insurance binders, misrepresenting himself as a title agent to clients and third parties, and collecting premiums for nonexistent policies, he directly violated Mississippi Rules of Professional Conduct 8.4(d), 1.15, and 8.4(a). Further, as noted in the Mississippi Bar’s Answer to his petition, Derivaux testified about the actions which lead to his suspension, acknowledging the forgery and the duration of his participation in the fraud.

¶ 9. Through both his petition and deposition testimony, we find that Derivaux has satisfied this requirement.

II. Names and Addresses of Those Suffering Pecuniary Loss

¶ 10. Attached as an exhibit to his petition, Derivaux provided a list of the individuals who suffered pecuniary loss due to his misrepresentation, forgery, and collection of premiums for the nineteen policies and loan closings in question. These names are accompanied by physical addresses for each of the parties. Therefore, we find that Derivaux has satisfied this requirement.

III. Full Amends and Restitution to Those Suffering Pecuniary Loss

¶ 11. In its November 18, 2011, order, the Mississippi Bar Complaint Tribunal re[100]*100quired Derivaux to remit full restitution in the amount of $8,800: $7,884 -in funds for the premiums he improperly collected and the remaining amount to the Bar for fees related to an interpleader action filed by the Tribunal. Derivaux pleads that he timely deposited the required $8,800 with the Bar. In its answer, the Bar confirms that the funds were received and the matter was closed on February 13, 2013. As a result, we find that Derivaux has satisfied this requirement.

IV. Requisite Moral Character

¶ 12. In support of the fourth requirement, Derivaux describes (among other attributes) his activity as a civil servant prior to his suspension, including service as a Judge Advocate General Corps officer, his service in the United States Naval Reserve, and his position as a Vicksburg Municipal Court Judge.

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Bluebook (online)
226 So. 3d 97, 2016 Miss. LEXIS 292, 2016 WL 4051347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derivaux-v-mississippi-bar-miss-2016.