ALSLA Exclusive Remedy Provision

Roberson v. Balch & Bingham, LLP, [Ms. 1200002, July 23, 2021] __ So. 3d __ (Ala. 2021). In a plurality per curiam opinion, the Court (Parker, C.J., and Mendheim and Stewart, JJ., concur, and Baschab, Special Justice, concur; Lyons, Main, and Welch, Special Justices, concur in part and dissent in part; Bolin, Shaw, Wise, Bryan, Sellers, and Mitchell, JJ., recuse) affirms the Jefferson Circuit Court’s 12(b)(6) dismissal of David Roberson’s claims of negligence, fraud, suppression, and “implied indemnity” against Balch & Bingham, LLP and Drummond Company, Inc. (“Drummond”). Roberson, a former employee of Drummond, was convicted of bribery arising from payments of thousands of dollars to a charitable foundation controlled by Oliver Robinson, a member of the Alabama House of Representatives, in exchange for “advocacy” and “community outreach” aimed at undermining the Environmental Protection Agency’s (“EPA”) efforts to clean up a Superfund site at which Drummond was a potential responsible party. Balch was Drummond’s outside legal counsel. Roberson alleged that prior to authorizing payments to the Foundation, he had asked Joel Gilbert, a registered lobbyist employed by Balch, “if Gilbert had inquired with the ethics lawyers at Balch & Bingham whether the Plan [to pay the Foundation] 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.” Ms. **4-5.

Although the circuit court dismissed the claims against Balch based upon the statute of limitations in the Alabama Legal Service Liability Act (“ALSLA”), the per curiam plurality opinion affirms on lack of duty. The opinion explains “if the gravamen of a plaintiff’s action against a legal-service provider concerns the provision of legal services, the action is governed by the ALSLA, but to state a cognizable ALSLA claim, an attorney-client relationship must exist between the plaintiff and the defendant because there must be a duty owed by the defendant attorney or law firm to the plaintiff that can be assessed ‘by the legal service provider’s violation of the standard of care applicable to a legal service provider.’ § 6-5-572(1), Ala. Code 1975.” Ms. **40-41.

The opinion notes that “[w]e recognize that our basis for affirming the circuit court’s judgment differs from the circuit court’s rationale, which was based on the applicability of the ALSLA’s limitations periods. However, it is well established that this Court may ‘affirm the trial court on any valid legal ground presented by the record, regardless of whether that ground was considered, or even if it was rejected, by the trial court.’ Liberty Nat’l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003).” Ms. *43.

Special Justice Lyons’s dissent, joined by Special Justices Main and Welch, explains

Article I, § 13, Ala. Const. 1901 (Off. Recomp.), provides that the courts shall always be open and that for every wrong there shall be a remedy. In the wake of the main opinion, an individual without a law license can deceive another individual with whom he or she has no contractual relationship and be liable for damages. However, an individual who happens to have a law license can deceive another individual with whom he or she has no contractual relationship and be immune from liability for damages because of the exclusivity of the ALSLA as a remedy.

Ms. *60.

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