RECOVERY LTD. P’SHIP v. THE WRECKED & ABANDONED VESSEL S.S. CENT. AM., NO. 14-1950

Decided: June 22, 2015

The Fourth Circuit affirmed the district court’s dismissal of Robol’s claim.

This case was an appeal from the district court’s dismissal of Richard T. Robol and Robol Law Office, LLC’s (“Robol”) in rem admiralty action to recover a salvage award on the basis that he had provided voluntary assistance when he turned over files pertaining to the salvage of the S.S. Central America, and that he had encouraged Milton T. Butterworth, Jr., (“Butterworth”) to do the same. The district court, however, dismissed his claim for failure to state a claim because Robol, as the former attorney of the Columbus-America Discovery Group (“Columbus-America”) and the Recovery Limited Partnership (“Recovery Limited”), was obligated under the rules of professional responsibility and under court order to return the files and did not act voluntarily, which defeated his salvage award claim. This appeal followed.

The Fourth Circuit first examined Robol’s contentions that his turning over of the files was voluntary. Robol’s claim turned on whether or not his actions were voluntary because a salvage award was for people “by whose voluntary assistance a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril, or in recovering such property from actual peril or loss, as in cases of shipwreck, derelict, or recapture.” Although Robol argued that the district court’s failure to take his allegations as true when ruling on a Rule 12(b)(6) motion, the Court determined that his allegation of voluntariness was merely a legal argument that the district court appropriately resolved as a matter of law. Specifically, because of the existence of an attorney-client relationship between Robol and Columbus-America, Robol had a duty to turn over the documents under the Virginia Rules of Professional Conduct and was preventing from exercising liens on the documents dues to Columbus-America’s failure to pay. The Court also dismissed Robol’s contention that the district court reached beyond the claim in deciding that Robol’s actions were not voluntary, stating that the district court properly considered that Robol had been the attorney on record for Columbus-America and courts are permitted to consider matters of public record when deciding motions to dismiss. Robol himself admitted in his opposition to the motion to dismiss that he had been the attorney on record, and also that some of the documents that he turned over were “the property of his clients in which he had asserted a retaining lien,” so the district court did not fail to follow 12(b)(6) ruling procedures. The Court then examined the merits of Robol’s contention that turning over the documents was voluntary, but ultimately concluded that his actions were not voluntary.

First, the Court established that Robol’s retaining lien was prohibited under the modern rules of professional conduct under both Virginia and Ohio rules, particularly when to assert a retaining lien would cause foreseeable prejudice to the client. Here, Robol admitted that the documents he turned over saved Recovery Limited “in excess of $600,000,” and the Court concluded that it would have been prejudicial indeed for Robol to refuse to turn over the documents and force Recovery Limited to recreate the information found in the documents. Robol also argued that he owned the documents and not his clients because EZRA’s failure to pay rent for the storage of the documents invoked a default under the lease and the subsequent failure on EZRA’s part to retrieve the documents constituted an abandonment of the documents. However, the Court pointed out that there was no applicable Ohio law that permitted this, and that repossession through failure of the tenant to pay was not included in the lease. Furthermore, in an action in Ohio court, Robol admitted that the documents belonged to his clients and in response to the receivership order stated that the documents were his clients, and therefore he did not turn the documents over voluntarily. Similarly, his claim that he convinced Butterworth to turn over files entitled him to a salvage award also failed, according to the Court, because Butterworth was under legal obligation to turn them over, and Robol’s conduct was merely a “collateral push” to comply. The Court therefore affirmed the district court’s decision.

Full Opinion

Jennie Rischbieter

 

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