Cooner v. Ala. State Bar

145 So.3d 1

Douglas H. COONER

v.ALABAMA STATE BAR.

1111340.

Supreme Court of Alabama.

March 15, 2013.

Opinion on Return to Remand May 24, 2013.

Craig A. Alexander of Rumberger, Kirk & Caldwell, P.C., Birmingham, for appellant.

J. Anthony McLain, gen. counsel, and Robert E. Lusk, Jr., asst. gen. counsel, Alabama State Bar, Montgomery, for appellee.

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 Cooner 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 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 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.

In Noojin, Noojin pleaded guilty to a misdemeanor in the United States District Court for the Southern District of Alabama (“the federal district court”). In November 1988, Noojin received a suspended sentence and probation. The conditions of his probation provided that he not engage in the practice of law for a period of one year and that, if a complaint based on the action charged in the federal criminal proceeding or any earlier act was filed with the Bar, Noojin's response to the complaint would be that he would not oppose a one-year suspension of his law license.

On November 29, 1988, the Mobile Bar Association notified Noojin that there was a complaint against him that arose out of the action that was the basis for the proceedings in the federal district court. Noojin filed a written response that was accompanied by a conditional guilty plea. Noojin subsequently contacted the Bar regarding the status of the charges against him. Both individuals he spoke with told Noojin that the matter was still pending in the local committee. On June 29, 1989, Noojin filed a motion to dismiss the proceeding, even though no formal charges had been filed against him at that time. Noojin did not receive a response to his motion. However, on October 24, 1989, Noojin was served with disciplinary charges. After a hearing was conducted, the Board found him guilty of three of the six charges and suspended him from the practice of law for a period of one year. Noojin appealed from the Board's order suspending him from the practice of law.

Citing Rule 11, Ala. R. Disc. Enf.,⁴ for support, Noojin argued on appeal that the Board had violated his due-process and equal-protection rights by delaying or deferring the disciplinary action until after he had completed the probationary period imposed by the federal district court. Noojin, 577 So.2d at 421. This Court stated:

“The real issue ... is whether the provisions of Rule 11 should apply here, that is, whether the Board had ‘good cause’ to defer or delay this disciplinary proceeding because of the pending federal action, knowing that the federal judge had made it a condition of Noojin's probation that he not practice law for at least one year and not oppose a one-year suspension by the Bar.”

Noojin, 577 So.2d at 424. In addressing this issue, this Court stated that, although the Bar had filed the formal charges against Noojin within the six-year period of limitations set forth in Rule 23, Ala. R. Disc. Enf., “special circumstances existed here, which appear to us to call for the application of the provisions of Rule 11.” 577 So.2d at 424. This Court also noted that the Bar's delay in that case had worked to Noojin's disadvantage. This Court looked at the fact that Noojin did not receive the formal charges until three or four weeks before the end of his one-year period of suspension that was a condition of his probation; the fact that it appeared that Noojin was contemplating that the Bar would take action against him when he entered his guilty plea in the federal district court and his conditional plea in the local grievance proceeding;...