Wednesday, October 28, 2020

Did Balch Bingham lawyer Joel Gilbert provide "legal services" when he lied to Drummond exec David Roberson about scheme to fight off EPA regulations?


Attorneys for the defense in a $75-million lawsuit involving former Drummond Company executive David Roberson seem to have a low opinion of the "legal services" lawyers provide.

Roberson alleges two attorneys -- Joel Gilbert, of Balch Bingham, and Blake Andrews, in-house counsel for Drummond -- gave him false or incomplete information -- that caused him to be convicted in the North Birmingham Superfund bribery scandal. In essence, Roberson argues that lawyers knowingly deceived him in order to make him the fall guy in a scheme to overcome a possible cleanup order (at a reported cost of $100 million) from the Environmental Protection Agency (EPA).

The reaction of Andy Campbell, representing Balch Bingham? Hey, that's OK. Such deceptive acts are all in a day's work for an attorney. In fact, they constitute provision of "legal services." Burt Newsome, attorney for Roberson and his wife Anna, reacted with horror to such a notion. But Jefferson County Circuit Judge Tamara Harris Johnson must have bought it because she granted Balch's Motion to Dismiss, finding the "legal services" caused the Robersons' claims to fall under the Alabama Legal Services Liability Act (ALSLA) and its tight two-year statute of limitations. That means the Robersons' complaint was time-barred as filed too late. Johnson has yet to rule on a similar motion from Drummond.

Consider Campbell's words from a transcript of recent oral argument via telephone conference:

In November of 2014 before implementation of the [bribery] plan [involving former State Rep. Oliver Robinson] -- and we all know what the plan was -- the plaintiff asked Gilbert if he had inquired with the ethics lawyers of Balch Bingham whether the plan was legal and ethical. Gilbert represented to the plaintiff that Balch's in-house ethics lawyers had reviewed the plan and determined it was legal.

Now, that bad legal advice, or alleged bad legal advice, was November 2014. . . . The whole gravamen of this case is based on legal advice that was wrong or false or falsely stated. . . . In addition . . . they say [Mr. Roberson] relied to [his] detriment on this . . . legal advice and was convicted on July 20, 2018 . . . and they suffered damages as a result of that bad legal advice.

Does it matter, in Campbell's view, that the "legal services" provided in this instance involved statements that were false? Nope:

It does not depart from the fact that his whole claim is based on poor, faulty legal advice. Whether he was technically a client or not, he says he heard it, he relied on it. The law firm basically gave him false advice. He acted on it, and he was convicted. Nothing could be more a case of a claim against a legal services provider than this case is.

So, there you have it -- providing false legal information that leads to a man's criminal conviction can help make you a legal services provider, entitled to protection under the ALSLA.  How did Burt Newsome react to that idea? Not with favor:

You know, if Balch wants to argue that they were prroviding legal services to Roberson, even though it's in their pleadings he wasn't their client, they can do that. But whether or not they were providing legal services to Roberson is a question of fact, which is clearly set out in our third amended complaint that he was not a client of Balch Bingham, and Balch was not providing legal services to him.

Balch wants it both ways. They say in their own pleadings that Roberson was not Balch's client. They had no duty to Roberson, yet they want to apply the statute of limitations for the Alabama Legal Services Act. And that's ridiculous. These claims against Balch are ordinary fraud claims, and the statute of limitations on an ordinary fraud claim accrues when all the elements of a fraud are met, and one of those elements is damages. Roberson suffered no legal damage until he was indicted, and he filed suit within two years of his indictment.

How severe was Gilbert's statement, which Campbell seems to acknowledge was false? Newsome provides insight:

[Mr. Campbell] keeps saying Joel Gilbert gave Roberson legal advice. That's false. Read the complaint. Mr. Roberson didn't ask Gilbert for legal advice. He didn't ask Gilbert to research whether the plan was legal. He asked him a simple question. Has your compliance department looked at this, and Joel Gilbert lied. He said, Yeah, they've looked at it, and they determined it's legal. . . . 

[He] could have said nothing. But what Joel Gilbert did to his non-client, Mr. Roberson, knowing that he'd rely on it, was he lied to him. He said, our compliance department has looked at this and it's legal. And as the testimony showed and Mr. Roberson learned at trial, the compliance department had told Joel Gilbert actually the opposite, that it was illegal. He never was a legal-services client or received legal services whatsoever from Joel Gilbert. He simply asked Gilbert a question, and Gilbert lied to him.

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