Cooner v. Alabama State Bar

145 So. 3d 1, 2013 WL 9047423
Supreme Court of Alabama·Decided March 15, 2013·No. 1111340·Published·Cited by 4 cases

Opinions

WISE, Justice.

On February 17, 2010, a panel of the Disciplinary Board (“the Board”) of the Alabama State Bar (“the Bar”) ordered that Douglas H. Cooner be disbarred from the practice of law. Cooner appealed the Board’s decision to this Court. On October 8, 2010, this Court held that the Board’s order disbarring Cooner did not satisfy the requirements of Rule 4.2, Ala. R. Disc. P., because it did not include findings of fact as to each allegation of misconduct adequate for this Court to conduct a meaningful review to determine whether the Board’s conclusion that Coon-er had violated Rules 1.7(b), 8.4(a), 8.4(c),

and 8.4(g), Ala. R. Prof. Cond., was supported by clear and convincing evidence. Cooner v. Alabama State Bar, 59 So.3d 29 (Ala.2010) (“Cooner I") 1 Accordingly, this Court reversed the Board’s judgment as to those violations, ordered the Board to vacate its order of disbarment as to those violations, and remanded this case for the Board to enter a new order that complied with Rule 4.2, Ala. R. Disc. P. On June 27, 2012, the Board entered its “Report and Order (On Remand)” (“the order on remand”). Cooner then appealed to this Court from that order.

Standard of Review

“‘The standard of review applicable to an appeal from an order of the Disciplinary Board is “that the order will be affirmed unless it is not supported by clear and convincing evidence or misapplies the law to the facts.” Noojin v. Alabama State Bar, 577 So.2d 420, 423 (Ala.1990), citing Hunt v. Disciplinary Board of the Alabama State Bar, 381 So.2d 52 (Ala. 1980).’
“Davis v. Alabama State Bar, 676 So.2d 306, 308 (Ala.1996).”

Cooner I, 59 So.3d at 37.

Discussion

I.

Cooner argues that the order on remand does not comply with this Court’s mandate in Cooner I.2 In Cooner I, this Court held [3] that the recitation of the evidence in the Board’s original order did not constitute findings of fact as to each allegation of misconduct and that the Board’s order did not contain conclusions of law as to each allegation of misconduct. Thus, we remanded the case for the Board to vacate its February 17, 2010, order of disbarment and to enter a new order that complied with Rule 4.2, Ala. R. Disc. P.

On appeal from the order on remand, Cooner contends that the Board did not vacate its February 17, 2010, order, even though this Court instructed it do so in Cooner I; that the order on remand does not comply with this Court’s mandate in Cooner I because it does not include specific findings of fact as to each allegation of misconduct; that the Board made only “cosmetic changes” in the order on remand; and that the order on remand “still simply recites the testimony and other evidence presented at the hearing.” Cooner’s brief, at p. 16. We agree.

Initially, it does not appear that the Board vacated its February 17, 2010, order as we instructed in Cooner I. In fact, the Board adopted the procedural history set forth in the February 17, 2010, order.

The order on remand contains a section titled “Findings of Fact,” which includes a statement of facts with numbered paragraphs. It also includes a section titled “Conclusions of Law,” in which the Board quoted the specific Rule of Professional Conduct involved in charges IV, IX, X, and XI against Cooner, and found that Cooner was guilty of violating each of those rules.

However, the order on remand does not fully comply with our mandate in Cooner I because the order on remand still does not include specific findings of fact as to each allegation of misconduct. In its brief, the Bar states:

“Construing the Disciplinary Board’s order as a whole, it first references this Court’s opinion of October 8, 2010, and states the Board’s intention to enter a report and order consistent with that opinion. (C. 29) The Board next references the prior order of February 17, 2010, and adopts the ‘PROCEDURAL HISTORY’ section of that order by reference. (C. 29) The next section of the Board’s order is captioned ‘FINDINGS OF FACT,’ which contains 30 separately numbered paragraphs of facts as found by the Disciplinary Board. (C. 29-35) Clearly, a valid construction of this section of the Board’s order is that these separately numbered paragraphs are, indeed, the findings of fact as found by the Board.”

The Bar’s brief, at p. 43 (capitalization in original). However, the “findings of fact” included in the order on remand are nothing more than a general recitation of the evidence presented at the hearing. Additionally, those “findings of fact” are nearly identical to the recitation of evidence this Court previously held was not sufficient to comply with Rule 4.2, Ala. R. Disc. P. See Cooner I, 59 So.3d at 39. Because the [4] order on remand does not include specific findings of fact as to each allegation of misconduct, the order on remand does not comply with either Rule 4.2, Ala. R. Disc. P., or with this Court’s mandate in Cooner I, supra. Accordingly, we must again reverse the Board’s order of disbarment and remand this cause with directions that the Board vacate its February 17, 2010, order of disbarment, vacate its order on remand, and enter a new order that complies with Rule 4.2, Ala. R. Disc. P. See Cooner I, supra.

II.

Cooner also argues that this Court should dismiss the remaining formal charges against him because of the Board’s allegedly “excessive delay and its failure to comply with this Court’s mandate.” Cooner’s brief, at p. 19. Specifically, he contends that the Board’s failure to comply with Rule 4.2, Ala. R. Disc. P., in its February 17, 2010, order frustrated his right to appellate review pursuant to Rule 12(f), Ala. R. Disc. P.; that the Board’s “inordinate, and unexplained delay in attending this Court’s mandate has delayed and consequently further frustrated, Mr. Cooner’s right to appellate review of the Board’s conclusions of guilt”; and that, if this Court concludes that the order on remand still does not comply with Rule 4.2, Ala. R. Disc. P., the allegedly excessive delay in this proceeding will only get worse. Cooner’s brief, at p. 21.3

Cooner cites this Court’s decisions in Noojin v. Alabama State Bar, 577 So.2d 420 (Ala.1990), and Hayes v. Alabama State Bar, 719 So.2d 787 (Ala.1998), to support his position that the disciplinary charges against him should be dismissed based on the Board’s delay in entering the order on remand. However, the circumstances in Hayes and Noojin that warranted a dismissal of the disciplinary charges in those cases are vastly different from the circumstances presented here.

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Cooner v. Alabama State Bar, 145 So. 3d 1, 2013 WL 9047423 (Ala. 2013).

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