Thursday, November 5, 2020

Attorney for Drummond suggests in-house counsel knew EPA scheme was illegal, so he had David Roberson process invoices that led to indictment

Burt Newsome

An attorney for Drummond Company, defendant in a $75-million lawsuit, seemed to acknowledge at oral argument that the firm's in-house counsel had determined a plan to circumvent expensive EPA regulations was illegal at the time he asked former executive David Roberson to process invoices related to the scheme. Roberson complied, and according to his civil complaint, that simple act played a central role in his indictment and conviction -- making him the fall guy -- in the North Birmingham Superfund bribery scandal.

Andy Campbell, attorneys for co-defendant Balch Bingham, had argued that Joel Gilbert, one of the firm's lawyers, had provided "legal services" when he made a false statement to Roberson about the legality of the Superfund plan. Circuit Judge Tamara Harris Johnson bought that argument (improperly, in our view), finding Gilbert's statement fell under the Alabama Legal Services Liability Act (ALSLA) and making Roberson's claim time-barred.

Trey Wells, from the Birmingham firm Starnes Davis Florie, appeared to be making a similar argument for Drummond.  But Johnson rendered a mixed-bag verdict, granting dismissal for Drummond on some counts, while denying it on others. That means Drummond stands as the lone defendant, while Johnson's total dismissal of Balch is on appeal to the Alabama Supreme Court.

Wells' statement regarding Drummond in-house counsel Blake Andrews was in response to claims from Roberson (and his attorney, Burt Newsome) that Andrews' actions did not constitute the provision of legal services. Here is Wells from a transcript of the recent oral argument via telephone conference:

Their theory is that Drummond's general counsel formed a legal opinion that this whole plan was illegal and did not tell Mr. Roberson about it, and in fact, told him things that would basically make him be the fall guy, I think is their theory. That is -- the formation of a legal opinion as to whether something is legal or illegal is the definition of what a lawyer does. . . . That is legal services.

Burt Newsome pounced on that statement:

You know, he just -- he did a great job summing up Balch and Drummond's legal-services argument in a nutshell. He just told you because Blake Andrews formed in his head that this lobbying scheme was illegal and decided, I better not pay these invoices to the [Oliver Robinson] foundation because I will go to jail, then I'm going to -- so I'm going to get David Roberson to pay these so he will go to jail, that that was providing legal services to Mr. Roberson. That is absurd. Blake Andrews making a legal opinion in his head that this is illegal, I better not pay these, I better get somebody else to do it, that's not giving legal advice to Mr. Roberson. That doesn't make David Roberson his client. That makes David Roberson him and Balch's fall guy.

It's just unbelievable how they construe what legal services are. Not telling somebody what you're doing is illegal and getting hem to do it so you won't go to jail, that's not providing a legal service to him. That's not a cause of action that arises out of legal service. I mean, that analogy is just over  the top. . . . 

Not only is Drummond and Balch's argument with regard to the legal services act appalling -- I mean, he's saying because Blake Andrews formed in his head that this scheme was illegal so I don't want to be the one paying these invoices in the line and scope of employment, that somehow this is providing a legal service to Roberson, this is somehow being Mr. Roberson's attorney, is a joke. And it's the same way with Balch. They did the same thing. This is illegal, but, you know, when he asked me the question, I'm going to tell him my compliance department said it was all okay. That's not providing a legal service to Mr. Roberson. That's not being Mr. Roberson's attorney.

. . . The legal services act does not apply to the causes of action in this complaint. You're not providing a legal service to somebody by not telling them that the payment of these invoices to this foundation is illegal and having them do it. That is nonsensical.

Judge Johnson, in her order on Drummond's Motion to Dismiss, stated she was accepting the following factual allegations as true at this early stage in the litigation:

12. Plaintiffs allege that Defendant Balch made payments to the [Oliver Robinson] Foundation pursuant to the contract and submitted invoices to Defendant Drummond for reimbursement. . . . Blake Andrews, General Counsel for Defendant Drummond, represented to the Plaintiff that he was 'confused" by having to process Defendant Balch's invoices for the Foundation as well as other Defendant Balch invoices, and Andrews "asked and directed" the Plaintiff David Roberson to process Defendant Balch's invoices for payments to the Foundation.

13.  At all relevant times until February 7, 2019, Plaintiff David Roberson was a vice president of Defendant Drummond, subordinate to Andrews and [CEO Mike] Tracy, and Plaintiff was required to perform duties and responsibilities assigned to him by Andrews and Tracy.

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