Monday, November 16, 2020

Drummond's request for immediate appeal in Roberson case should be swiftly denied because Alabama Supreme Court already has ruled in the negative on central question presented


Drummond Company's request for an interlocutory appeal in David Roberson's $75-million lawsuit should be dead on arrival. In fact, it should not even be certified for an appeal at the trial-court level, and its request for a stay in discovery certainly should not be granted. Why?

Drummond states such an immediate appeal is proper, in part because:


That, however, is not true. The Alabama Supreme Court already has stated its opinion on the central issue in the request for interlocutory appeal -- and it is not favorable to Drummond. In fact, the high court already has thoroughly shot holes in Drummond's case, so there is no difference of opinion -- and  no basis for an interlocutory appeal.

What is that central question Drummond seeks to place before the high court? Here's how it is stated in the company's brief:

Whether a  corporation, which is not itself a legal services provider, may avail itself of the ALSLA statute of limitations where its alleged liability is based on the conduct of its general counsel, who is a legal services provider?

The Alabama Supreme Court already has answered that question in a case styled Alabama Educ. Ass’n v. Nelson, 770 So. 2d 1057 (Ala. 2000). Nelson involved a teacher's efforts to sue AEA under the Alabama Legal Services Liabiliy Act (ALSLA) because of alleged legal malpractice by one of the association's in-house lawyers. That appears to be analogous to Roberson's claims related to Drummond in-house counsel Blake Andrews -- and the company's efforts to seek protection of the ALSLA and its tight statute-of-limitations, which could make the Roberson lawsuit time-barred.

But Drummond has a slight problem -- it admits that it is not a legal-services provider, and the Alabama Supreme Court held in Nelson that the ALSLA does not apply in such situations. In essence, the state's high court found in Nelson that ALSLA does not apply to the AEA -- which, like Drummond, is not a legal-services provider -- so it could not apply to Drummond. That means Roberson's complaint is not time-barred, and Drummond's request for interlocutory appeal should be sent to the dead letter office. Here is the key finding in Nelson:

        We note that throughout the ALSLA, the language used by the Legislature indicates             that the Act was intended to apply to lawyers and law firms. For example, §                         6-5-572(3)(a) sets out the "standard of care" a "legal service provider" is to observe:

"The standard of care applicable to a legal service provider is that level of such reasonable care, skill, and diligence as other similarly situated legal service providers in the same general line of practice in the same general locality ordinarily have and exercise in a like case."

        What standard of care would be applied to the AEA under this statute? We know of no         other "legal service provider" that, in regard to the AEA, might be considered to be             "similarly situated." Clearly this section contemplates that the ALSLA is to be                     applied  only to lawyers and to law firms— including professional corporation                    associations,  and partnerships—whose membership is composed solely of lawyers             acting for the  purpose of providing legal services.

        The plain language of § 6-5-572(2), as well as that of the other portions of the                    ALSLA, clearly indicates that the Legislature intended for the ALSLA to apply only            to lawyers and to entities that are composed of members who are licensed to practice         law within the State of Alabama. Because the AEA is not a lawyer or an entity whose         membership is composed of lawyers, it cannot be held liable under the ALSLA.

How might that last sentence be adjusted to fit Roberson v. Drummond? We will go with this:

Because Drummond is not a lawyer or an entity whose membership is composed of lawyers, it cannot avail itself of the ALSLA statute of limitations.

 That is not the only reason Drummond's request for interloctory appeal should be quickly rejected. We will address another one in an upcoming post.

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