Roberson v. Balch & Bingham, LLP

• Decision Date: 23 July 2021
• Docket Number: 1200002
• Parties: David Roberson v. Balch & Bingham, LLP
• Court: Alabama Supreme Court

David Roberson v. Balch & Bingham, LLP

No. 1200002

Supreme Court of Alabama

July 23, 2021

Appeal from Jefferson Circuit Court (CV-19-901210)

PER CURIAM.

David Roberson appeals from a judgment of the Jefferson Circuit Court, which was certified as final pursuant to Rule 54(b) Ala. R. Civ. P., dismissing his claims against Balch &amp Bingham, LLP ("Balch"), on the basis that those claims were barred by the limitations periods contained in the Alabama Legal Services Liability Act ("the ALSLA"), § 6-5-570 et seq., Ala. Code 1975. We affirm the judgment of the circuit court, although we do so on a different basis.

I. Facts

David Roberson filed his initial complaint on March 15, 2019 against Balch and his former employer, Drummond Company, Inc. ("Drummond").^[1] The operative complaint for purposes of this appeal is Roberson's third amended complaint, and the facts alleged in that complaint, primarily as they relate to Balch, were as follows:

"1. At all times relevant to this case, Joel Gilbert ('Gilbert') was a registered lobbyist and the agent of Defendant Balch & Bingham, LLP ('Balch'), and his acts and omissions described herein were committed pursuant to and in the course of that agency relationship, or Balch has ratified, approved, and adopted his acts. ...

"2. At all times relevant to this case, Defendant Balch was the agent of Defendant Drummond Company, Inc. ('Drummond'), and its acts and omissions described herein were committed pursuant to and in the course of that agency relationship, or Drummond has ratified, approved, and adopted Balch's acts. ...

"3. At all times relevant to this case, Blake Andrews ('Andrews' or 'General Counsel') was the General Counsel and agent of Defendant Drummond ....

"4. At all times relevant to this case, Mike Tracy ('Tracy') was the CEO and agent of Defendant Drummond ....

"5. At all times relevant to this case until February 7 2019, David Roberson ... was a Vice-President with Drummond. Roberson was subordinate to Andrews and Tracy, and he was required to perform duties and responsibilities assigned to him by Andrews and Tracy. [Roberson] is not a lawyer and has no legal training concerning the matters described herein.

"....

"7. In late 2013 the Environmental Protection Agency ('EPA') proposed placing a particular site in Jefferson County, Alabama on a National Priorities List ('NPL'); this was a prelude to designating Drummond as a [Potentially] Responsible Party [('PRP')] for the cleanup costs at the site. The cleanup costs were estimated at over $100 million ....

"8. Joel Gilbert was a registered lobbyist employed by Balch & Bingham, LLP, and Drummond hired Balch & Bingham to create and implement a public-relations campaign that would prevent the placement of the site on the National Priorities List and the designation of Drummond as a Responsible Party. Balch & Bingham never functioned as Roberson's attorney nor was Roberson or Drummond ever a legal services client of Balch & Bingham for or concerning the acts and omissions on which [Roberson's] claims are based. ... Finally, Balch & Bingham was not functioning as Drummond's legal counsel for or concerning the acts and omissions on which [Roberson's] claims are based.

"9. Balch, as Drummond's agent, devised a public relations plan ('the Plan') to employ a seemingly-legitimate local foundation, the Oliver Robinson Foundation ('the Foundation'), to conduct a seemingly-innocent campaign directed toward the community, the State of Alabama, and the EPA. Oliver Robinson was a respected state legislator, and he controlled the Foundation.

"10. Under the Plan, Oliver Robinson and the Foundation would (a) seek to convince the residents of North Birmingham not to have their property tested for toxins, such as lead and arsenic, and (b) Trey Glenn and Scott Phillips would seek by lobbying ADEM to prevent the State of Alabama from giving the legally required assurances to the EPA that the state would cover the required 10% of the cleanup costs that could not be recovered from PRPs.

"11. In November 2014, before implementation of the Plan, [Roberson] asked Gilbert if he had inquired with the ethics lawyers at Balch & Bingham whether the Plan was legal and ethical. Gilbert represented to [Roberson] that Balch's in-house ethics attorneys had reviewed the Plan and determined that it was legal.

"12. On or about February 12, 2015, Gilbert and Balch prepared a contract between Balch and the Foundation. [Roberson] did not participate in preparing the contract, and he did not see the contract until the summer of 2018 - during his criminal trial.

"13. Balch thereafter made payments to the Foundation under the contract and submitted invoices to Drummond for reimbursement.

"14. Blake Andrews, General Counsel for Drummond ..., represented to [Roberson] that he was 'confused' by having to process the Balch invoices for the Foundation as well as other Balch invoices. Consequently, he asked and directed [Roberson] to process Balch's invoices for payments to the Foundation.

"15. [Roberson], having been assured by Gilbert that Balch's in-house ethics attorneys had reviewed the Plan and determined that it was legal and ethical, did not know that the payments were illegal. Consequently, he performed his duties for Drummond exactly as instructed by Drummond's General Counsel, and he approved reimbursements to Balch for payments to the Foundation."

(Emphasis added.) In Count VII of the third amended complaint, Roberson specifically alleged:

"66. In June 2016, after the conviction of State Representative [Mike] Hubbard for ethics violations, [Roberson] again asked Gilbert if Balch's in-house ethics attorneys had any 'problem' with the Plan or his association with it since [Roberson] is also a registered lobbyist.

"67. Gilbert again represented to [Roberson] that he had checked with [Balch ethics attorneys] Greg Butrus and Chad Pilcher and there was no problem with what they were doing.

"68. Gilbert's representations were false, and he made the misrepresentations willfully to deceive, recklessly without knowledge, or by mistake, but with the intent that [Roberson] act on the representations."

Continuing with the general factual allegations in the third amended complaint, Roberson asserted:

"16. During Balch's implementation of the Plan, Balch's in-house ethic's attorneys [in February 2017] had informed Gilbert that, in fact, Robinson had and was acting illegally in performing duties under the Plan. Both Balch and Drummond failed to notify [Roberson] of these facts or take any remedial or corrective action. ...

"17. On September 27, 2017, Balch attorney Gilbert and [Roberson] were indicted for violating 18 U.S.C. §§ 371, 666(a), 1343, 1346, and 1956(h), but neither Drummond Corporation nor Balch & Bingham, LLP, was indicted.

"18. The indictment charged that the payments to the Foundation were bribes, and it charged that [Roberson] was guilty of criminal conduct because he had 'caused Drummond Company to pay' Balch's invoices for payments to the Foundation - as instructed by Drummond's General Counsel.

"19. The case against [Roberson] and Gilbert was tried in the United States District Court in Birmingham in June-July 2018. As was his constitutional right, [Roberson] elected not to testify at trial.

"20. During the trial, the prosecution read in evidence the following sentence from a summary of [Roberson's] statement to the FBI: 'After the Hubbard trial, Roberson considered what they were doing, i.e., contracting with a state representative, in light of the ethics law but determined that the area targeted by the campaign was not in Robinson's district.'

"21. [Roberson] then sought to introduce the balance of the summary, which included the following: Roberson stated that they (Drummond) have always been very careful, and he (Roberson) has a reputation to maintain. Roberson had a conversation with Gilbert about ethics considerations. Roberson wanted to know if it was a problem for him (Roberson) to be associated with the effort because he was a lobbyist. Gilbert later told Roberson that he had checked with Greg Butrus and Chad Pilcher at Balch and there was no problem with what they were doing.

"22. The indicted Balch attorneys blocked admission of this evidence, arguing that it violated their Fifth and Sixth Amendment rights. Exclusion of this evidence allowed the U.S. Attorney to falsely argue at closing that [Roberson] had never asked Joel Gilbert at Balch & Bingham whether the Plan to pay the Foundation was legal.

"23. On July 20, 2018, the jury convicted [Roberson] and Gilbert on all counts."

On May 27, 2021, the United States Court of Appeals for the Eleventh Circuit affirmed Roberson's convictions on all counts. See United States v. Roberson, 998 F.3d 1237 (11th Cir. 2021).

As already noted, on March 15, 2019, Roberson commenced an action against Balch and Drummond in the Jefferson Circuit Court. In his initial complaint, Roberson asserted claims of negligence, fraud, suppression, and "implied indemnity" against Balch and Drummond. On April 18 2019, Balch filed a motion to dismiss the complaint in which it argued that Roberson's claims were barred by the statute of limitations and the rule of repose contained in the ALSLA, that Roberson's action was prohibited under the rule first enunciated in Hinkle v. Railway Express Agency, 242 Ala. 374, 6 So.2d 417 (1942), ^[2] that Roberson was collaterally estopped from arguing that he had relied upon the advice of counsel because that issue allegedly had been resolved in Roberson's federal criminal trial, and that Balch had owed no duty to Roberson because Drummond, not Roberson, was Balch's client. Balch attached some exhibits to its motion to dismiss, including transcript excerpts of witness testimony from...