Wednesday, November 18, 2020

Lack of an attorney-client relationship provides a second ground for rejecting Drummond Company's request for immediate appeal in Roberson case

Tamara Harris Johnson

We have shown that Drummond Company's request for interlocutory appeal in David Roberson's $75-million lawsuit should be rejected because the Alabama Supreme Court already has held that the Alabama Legal Services Liability Act (ALSLA) applies only to lawyers and law firms and not to entities that happen to employ one or more in-house lawyers. But that is not the only reason Drummond's request should be dead on arrival. The second reason involves the presence -- or lack thereof -- of an attorney-client relationship.

Aalabama law is clear that ALSLA -- and its tight statute of limitations, which could make the Roberson complaint time-barred -- applies only where there is an attorney-client relationship. Circuit Judge Tamara Harris Johnson correctly stated the law in her recent order dismissing the Balch and Bingham law firm from the Roberson case, citing a case styled Mississippi Valley Title Ins. Co. v. Hooper, 707 So. 2d 209 (Ala., 1997). Harris wrote:

The Court held further that “an attorney-client relationship is an essential element of a claim under the Legal Services Liability Act... To create an attorney-client relationship,there must be an employment contract‘either express or implied’ between an attorney and the party for whom he purports to act or someone authorized to represent such party. . . . ”

The Court in Mississippi Valley, supra, further held, The test for determining the existence of [an attorney-client] relationship is a subjective one and ‘hinges upon the client’s belief that he is consulting a lawyer in that capacity and his manifested intention is to seek professional legal advice.”

In our view, Johnson correctly stated the law in the Balch dismissal, but she applied it incorrectly -- and her order should be reversed by the Alabama Supreme Court, where it stands on appeal.

In his complaint, David Roberson states that he had no attorney-client relationship with anyone at Drummond (including in-house counsel Blake Andrews) or anyone at Balch, for that matter. As a matter of law, that statement must be taken as true at the motion-to-dismiss stage. But Johnson apparently found it to be 'conclusory" and not a well-pleaded factual allegation, so she did not take it as true. That, however, runs counter to Alabama Supreme Court precedent, as stated in Ex parte Austal USA (2007)

In Austal, workers alleged the company intentionally provided them with a defective saw, knowing it would cause injuries. Austal dismissed the allegations as conclusory, and the court admitted the allegations were "so shocking that it invites skepticism." But still, it found they had to be taken as true early in the litigation and denied Austal's motion to dismiss:

At the motion-to-dismiss stage, however, a court's ability to pick and choose which allegations of the complaint to accept as true is constrained by Alabama's broad and well settled standard for the dismissal of claims under Rule 12(b)(6). In this case, there is no question that the plaintiffs have pleaded that Austal “made the conscious and deliberate decision to intentionally injure its workmen.” That allegation -- that a company would deliberately injure multiple specific employees -- is so shocking that it invites skepticism. Moreover, we agree with Austal that a specific intent or desire to cause injury to its employees is not particularly consistent with the alleged cost-saving motivation for causing such injuries. Nevertheless, our standard of review does not permit this Court to consider the plausibility of the allegations. Rather, in considering whether a complaint is sufficient to withstand a motion to dismiss, we must take the allegations of the complaint as true. . . . we do not consider “'whether the pleader will ultimately prevail but whether the pleader may possibly prevail,”

David Roberson, a biologist by training, is an intelligent, sophisticated guy, and he surely knows whether he had formed an attorney-client contract, and he clearly states in the complaint that he did not. Per Austal, Johnson must take that allegation as true, forming a second ground for rejecting Drummond's request for immediate appeal, probably meaning it should not even be certified for transmission to the Alabama Supreme Court.

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