Robol Law Office v. Recovery Limited Partnership
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 2:87-cv-00363-RBS,2:14-cv-00160-RBS-LRL. [999606473]. [14-1950]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1950
RECOVERY LIMITED PARTNERSHIP,
Plaintiff - Appellee,
v.
THE WRECKED AND ABANDONED VESSEL S.S. CENTRAL AMERICA,
Defendant,
---------------------------------ROBOL LAW OFFICE; RICHARD THOMAS ROBOL,
Claimants - Appellants,
and
COLLETTE DAVIDSON; MILTON T. BUTTERWORTH, JR.,
Claimants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Rebecca Beach Smith, Chief
District Judge. (2:14-cv-00160-RBS-LRL; 2:87-cv-00363-RBS)
Argued:
May 13, 2015
Decided:
June 22, 2015
Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.
Affirmed
majority
joined.
by published opinion.
Judge Niemeyer wrote the
opinion, in which Judge Duncan and Judge Thacker
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ARGUED: Richard Thomas Robol, ROBOL LAW OFFICE, LLC, Columbus,
Ohio, for Appellants.
Conrad M. Shumadine, WILLCOX & SAVAGE,
P.C., Norfolk, Virginia, for Appellee.
ON BRIEF: Brett A.
Spain, WILLCOX & SAVAGE, P.C., Norfolk, Virginia; James L.
Chapman, IV, Steven M. Stancliff, C. Wiley Grandy, CRENSHAW,
WARE & MARTIN, P.L.C., Norfolk, Virginia, for Appellee Recovery
Limited Partnership.
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NIEMEYER, Circuit Judge:
The S.S. Central America, loaded with tons of gold en route
from San Francisco to New York, sank in a hurricane off the
coast of South Carolina in 1857.
Group
(“Columbus-America”),
acting
Columbus-America Discovery
as
the
agent
for
Recovery
Limited Partnership (“Recovery Limited”), discovered the wreck
in
the
1980s,
and
the
district
court
subsequently
granted
Columbus-America salvage rights.
For
over
two
decades,
Richard T.
Robol
and
Robol
Law
Office, LLC (collectively, “Robol”) represented Columbus-America
in the proceedings to establish its salvage rights.
same
period,
Robol
also
defended
During the
Columbus-America,
Recovery
Limited, and several other related business entities, including
EZRA, Inc., against claims made by others for portions of the
gold
recovered
from
the
sunken
vessel.
In
addition,
Robol
leased commercial property in Columbus, Ohio, to EZRA, where
documents relating to the salvage operation were stored.
In June 2013, an Ohio court placed several of the companies
into
receivership
and
ordered
the
Receiver
to
collect
their
property from all persons holding such property, including the
companies’ attorneys.
The Receiver gave notice of the order to
Robol, and thereafter -- in July and August 2013 -- Robol turned
over 36 file cabinets of materials that he had accumulated as
counsel
and
landlord.
Robol
3
also
encouraged
Milton T.
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Butterworth, Jr., an officer of Columbus-America, to turn over
to the Receiver photographs, videos, and other materials related
to the salvage of the S.S. Central America.
After Robol withdrew as counsel for the companies, he filed
a claim in this in rem admiralty action to obtain a salvage
award
for
himself,
alleging
that
he
had
provided
voluntary
assistance to the Receiver in turning over files and documents
related to the salvage operation, which proved useful in the
continuing salvage of the sunken vessel.
The district court dismissed Robol’s claim for failure to
state
a
claim,
concluding
that
Robol
had
been
obligated
to
return the files and documents to his former clients under the
applicable rules of professional responsibility and principles
of
agency
law
and
therefore
that
his
act
of
returning
the
materials to his former clients was not a voluntary act, as
would be required for him to obtain a salvage award.
We agree with the district court and affirm.
I
In the mid-1980s, Thomas G. Thompson undertook to locate
the wreck of the S.S. Central America and to recover its cargo
of gold, valued at approximately $1.2 million in 1857.
To that
end, he set up a series of related business entities, including
Recovery
Limited,
which
he
created
4
to
finance
the
project;
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Columbus-America, which he formed to locate and salvage the ship
on Recovery Limited’s behalf; Columbus Exploration, LLC, which
he set up to market the recovered gold; and EZRA, which he set
up
to
pay
labor
costs
associated
with
Recovery
Limited’s
employees and consultants.
After several years of searching, Columbus-America located
the wrecked ship 160 miles off the coast of South Carolina.
In
1987, with Robol as counsel of record, it commenced this in rem
action in admiralty, and the district court subsequently granted
Columbus-America
Continuously
salvage
from
1988
rights
until
in
1991,
the
ship
and
its
Columbus-America
cargo.
conducted
salvage operations, recovering large amounts of gold and other
artifacts.
Following two trials and two appeals, we determined
in 1995 that Columbus-America was entitled to a salvage award of
90% of the value of the gold and artifacts recovered and that
various insurance companies that had paid claims for portions of
the lost gold were entitled to the remainder.
See Columbus-Am.
Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568-75 (4th
Cir.
1995).
Columbus-America
and
the
insurance
companies
thereafter divided the treasure in specie, and, in July 2000,
the district court closed the case.
Several
years
later,
minority
investors
and
former
employees who had assisted in locating the S.S. Central America
and recovering its cargo initiated legal actions in Ohio state
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court
against
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Thompson
and
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the
related
obtain portions of the award.
business
entities
to
Robol represented all of the
defendants, including Recovery Limited, in these actions until
he withdrew as counsel in June 2011.
During the course of the
proceedings, which were consolidated and removed to the United
States District Court for the Southern District of Ohio, it was
discovered that 500 gold coins belonging to the related business
entities
had
disappeared.
See
Williamson
P’ship, 731 F.3d 608, 617 (6th Cir. 2013).
v.
Recovery
Ltd.
The district court
ordered Thompson to appear to explain the coins’ whereabouts,
but Thompson failed to do so, and, in August 2012, the court
issued a bench warrant for his arrest.
became
a
fugitive.
In
April
2015,
Thompson then fled and
after
the
U.S.
Marshals
Service finally located and arrested Thompson in a hotel room in
Florida, he pleaded guilty to criminal contempt for failing to
appear in federal court.
His assistant later testified that
Thompson had smuggled the missing gold coins to Belize.
Because of Thompson’s disappearance, the Court of Common
Pleas
of
Franklin
County,
Ohio,
placed
Recovery
Limited
and
Columbus Exploration into receivership in June 2013, appointing
Ira Kane as the Receiver.
By order dated June 14, 2013, the
court directed “[a]ny person who has (or, as of the time of the
filing
of
this
Entry,
had)
any
fiduciary
duty
towards
the
Companies, by virtue of being either an officer, former officer,
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or person holding any asset, object or thing that is, or at the
time
of
the
filing
of
this
Entry
was,
the
property
of
the
companies, or either of them, . . . to surrender to and transfer
to said Receiver any and all such property.”
The court also
directed the Receiver to “conduct such maritime operations that
are
designed
to
make
a
positive
financial
return
for
the
companies.”
Pursuant to the court’s order, “the Receiver served notice
on all of the companies’ attorneys,” including Robol, “to turn
over
all
company
possession.”
files
and
other
property
in
their
Williamson v. Recovery Ltd. P’ship, No. 2:06-CV-
00292, 2014 WL 1884401, at *3 (S.D. Ohio May 9, 2014), appeal
docketed, No. 14-4231 (6th Cir. Dec. 12, 2014).
during
the
period
between
July 25
and
August 1,
Thereafter,
2013,
the
Receiver retrieved 36 file cabinets of records from Robol that
had been stored at Robol’s property at 433 West Sixth Avenue in
Columbus, Ohio (the “West Sixth Avenue property”), a portion of
Id.
which Robol had leased to EZRA.
Before Robol turned over the records to the Receiver, the
Ohio district court had ordered Robol and his clients to provide
the plaintiffs’ accountant with various categories of documents,
including
inventories
of
the
recovered
gold
and
records
of
downstream sales of the gold, which the accountant needed in
order to prepare a report on the financial condition of the
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defendant-entities.
Because
the
court
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Williamson,
found
that
2014
Robol’s
WL
1884401,
clients
had
at
*1.
repeatedly
failed in good faith to comply with its order, it twice held
Id.
them in contempt.
inventories
and
Robol similarly failed to turn over
records
of
downstream
sales
that
he
had
possessed, repeatedly telling the court incorrectly that he had
already
provided
possession,
when,
all
of
the
in
fact,
relevant
there
documents
were
multiple
in
his
unproduced
documents among the files that the Receiver retrieved from Robol
Id. at *2–4.
in July and August 2013.
consequently
granted
the
The Ohio district court
plaintiffs’
motion
for
sanctions,
finding that Robol had acted in bad faith and additionally that
his conduct rose “beyond mere bad faith to the level of ‘fraud
on
the
court.’”
Id.
at *13.
The
court
ordered
Robol
to
reimburse the parties for the costs incurred “in discovering
[the]
missing
inventories,
in
furtherance
the
amount
expended
in
Id. at *15.
prosecuting [the] Motion.”
Also
and
of
the
Ohio
Court
of
Common
Pleas’
June 14, 2013 receivership order, Recovery Limited, through the
Receiver,
America.
resumed
salvage
operations
in
the
S.S.
Central
Between January and May 2014, Recovery Limited filed
motions in this in rem action, which had been closed for nearly
14 years,
seeking
to
reopen
the
case,
to
substitute
it
for
Columbus-America as the real party in interest, and to declare
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that
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it
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was
the
legal
Central
America.
separate
in
rem
owner
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of
Recovery
action
salvage
rights
Limited
against
the
in
also
wreck
and
the
S.S.
commenced
its
cargo
a
to
declare itself the salvor for future salvage operations and to
obtain
a
artifacts.
salvage
The
award
for
district
all
court
newly
entered
recovered
orders
gold
dated
and
July
9,
2014, reopening this in rem action, granting Recovery Limited’s
motion to substitute itself as the salvor, and consolidating the
two in rem actions under the original action’s case number.
At
approximately the same time, on July 8, 2014, the court granted
Robol’s motion to withdraw as counsel of record for ColumbusAmerica.
Robol now alleges that Recovery Limited and its related
business entities owe him $2,092,882.17 plus interest in unpaid
legal fees and that EZRA owes him $68,371.93 in rent that it
failed to pay for the West Sixth Avenue property.
To recover
these amounts, Robol filed a “Verified Proof of Claim” in the
Ohio receivership proceeding on January 7, 2014.
Additionally, Robol filed a “Verified Statement of Right,
Interest,
and
Claim”
in
this
proceeding
on
June 23,
2014,
seeking a salvage award from the continuing salvage operations
on
the
ground
that
he
aided
and
assisted
in
these
salvage
operations by voluntarily releasing possession of documents over
which he had a retaining lien for attorneys fees and a property
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interest from EZRA’s abandonment of them upon default of its
lease.
More
salvage
operation
“maritime
data,
specifically,
and
(1)
by
he
returning
navigational
documents,
alleged
charts,
drawings,
that
to
he
the
Receiver
maritime
historical
assisted
the
various
maps,
locational
and
accounts,
data
shipwreck research and analysis, photographs, video,” and other
materials that he had acquired through his roles as counsel and
as landlord and (2) by providing “assistance in obtaining site
photography and video footage” held by Butterworth.
Butterworth
had served as Columbus-America’s Director of Photography during
the early stages of the salvage operation and thereafter as the
company’s Vice President, Acting President, and Chief Executive
Officer.
Robol
alleged
that
this
aid
and
assistance
“was
voluntary and involved items in which . . . [he] had control,
dominion, lien rights, ownership, and/other [sic] interests” and
that Recovery Limited “utilized these materials in the salvage
of the S.S. Central America to the benefit of the salvage,” thus
entitling him to a salvage award.
Recovery
dismiss
Limited,
Robol’s
by
claim
its
under
Receiver,
Federal
filed
Rule
a
motion
of
to
Civil
Procedure 12(b)(6), contending that the claim was not in the
nature of a claim for a salvage award and that, in any event,
Robol did not furnish his assistance voluntarily, as required to
demonstrate a valid salvage claim.
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By order dated August 8, 2014, the district court granted
Recovery
Limited’s
motion
and
dismissed
salvage award as a matter of law.
Robol’s
claim
for
a
The court concluded that
Robol, who was licensed to practice law in both Virginia and
Ohio,
had
a
duty
under
Virginia
Rule
of
Professional
Conduct 1.16(e) “to supply the materials to [Recovery Limited]
within
a
reasonable
time
of
the
termination
of
his
representation of [Recovery Limited] or [Columbus-America]” and
therefore that his action “was not ‘voluntary.’”
Although the
court rejected Robol’s argument that it should apply Ohio law,
which,
Robol
claimed,
would
have
permitted
him
to
assert
a
retaining lien over some of the materials as a result of unpaid
legal fees, it nonetheless recognized that such a lien would not
have permitted Robol to use the materials for his own purposes,
citing Restatement (Third) of Agency §§ 8.05, 8.09 cmt.b (2006).
“At best,” the court said, Robol might have “an in personam
claim for attorney’s fees or document storage fees.”
concluded
further
that
the
photographs
and
The court
videos
that
Butterworth provided to the Receiver at Robol’s urging had been
prepared by Butterworth during salvage operations as an employee
of
Columbus-America,
the
agent
of
Recovery
Limited,
and
therefore that they belonged to Recovery Limited.
From the district court’s order dismissing Robol’s claim,
Robol filed this appeal.
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II
Robol contends first that, in turning over to the Receiver
his
former
clients’
documents
relating
to
the
salvage
of
the S.S. Central America, he provided voluntary assistance that
proved useful in the renewed salvage operation, entitling him to
a salvage award.
A salvage award is, of course, compensation to
persons “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.”
Sabine, 101 U.S. 384, 384 (1879) (emphasis added).
The
Thus, a
valid salvage claim requires a “[s]ervice voluntarily rendered
when
not
contract.”
argues
required
as
an
existing
Id. (emphasis added).
that,
in
rejecting
the
duty
or
from
a
special
As an initial matter, Robol
allegations
of
his
verified
statement of claim that his actions in turning over documents to
the Receiver were voluntary, the district court erred in failing
to take his allegations as true, as required when ruling on a
Rule 12(b)(6)
motion.
Specifically,
he
maintains
that
the
district court should not have discredited his allegation that
his “aid and assistance was voluntary” inasmuch as he returned
documents over which he had “control, dominion, lien rights,
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ownership, and/other [sic] interests” because of his retaining
lien for unpaid attorneys fees.
Robol’s allegation of voluntariness, however, was no more
than a legal argument that he was not required to return to his
former clients’ documents over which he had a retaining lien and
that his doing so was therefore voluntary.
And the district
court appropriately treated his legal argument as one that it
could -- and indeed did -- resolve as a matter of law.
Relying
on the existence of Robol’s attorney-client relationship, the
district court concluded that Robol had a preexisting duty to
turn
over
the
Professional
Conduct
retaining liens.
correct
on
rejecting
conclusion.
documents
that
an
because
preclude
the
Virginia
attorneys
from
Rules
of
exercising
Regardless of whether the district court was
point,
allegation
it
of
is
clear
fact,
that
but
the
rather
court
was
Robol’s
not
legal
Of course, such legal conclusions are not entitled
to the presumption of truth.
See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“[T]he tenet that a court must accept as true
all of the allegations contained in a complaint is inapplicable
to legal conclusions”).
Robol also contends that, in reaching the conclusion that
his action was not voluntary, the district court inappropriately
went beyond the four corners of his verified statement of claim
because its allegations did not include the facts necessary for
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the
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to
reach
that
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conclusion.
The
district
court,
however, did not go beyond the claim except to note that Robol
had been counsel of record for Columbus-America and Recovery
Limited
and
therefore
to
that
the
he
owed
duty
to
return
operation
salvage
a
to
his
the
materials
relating
former
clients.
Robol can hardly dispute the court’s reliance on the
fact that he was counsel of record, as that is not only part of
the
record
in
this
case,
but
also
part
of
the
record
virtually every case relating to the salvage operation.
are
entitled
to
consider
such
matters
relying on motions to dismiss.
of
public
in
Courts
record
in
See 5B Charles Alan Wright et
al., Federal Practice and Procedure § 1357 (3d ed. 2004); see
also, e.g., Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009)
(holding
that
a
federal
court
may
consider
documents
from
a
prior state court proceeding in conjunction with a motion to
dismiss).
Moreover, Robol stated in his sworn opposition to
Recovery Limited’s motion to dismiss that he “served as counsel
for Columbus-America Discovery Group, Inc. . . . and/or Recovery
Limited Partnership . . . at various times from 1987 until 2014
and with respect to various matters.”
In the same document, he
also acknowledged that at least some of the documents that he
turned over to the Receiver were the property of his clients in
which he had asserted a retaining lien.
The district court
simply treated these matters as given and ruled as a matter of
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law that Robol, as counsel for the entities, had an ethical duty
to return the documents, notwithstanding any retaining lien that
he
claimed.
Accordingly,
we
reject
Robol’s
claim
that
the
district court failed to adhere to established principles for
ruling on a Rule 12(b)(6) motion.
On the merits, Robol contends that because he relinquished
possession of the documents despite his retaining lien, his acts
were voluntary, entitling him to a salvage award commensurate
with
the
value
of
the
documents
to
the
continuing
salvage
operation.
Modern standards of professional conduct, however, preclude
Robol from exercising a retaining lien in such a manner.
The
Virginia Rules of Professional Conduct obligate an attorney to
return to a former client documents furnished by the client and
attorney work product, “whether or not the client has paid the
fees and costs owed the lawyer.”
R. 1.16(e).
common-law
Although
right
of
Virginia
an
Va. Rules of Prof’l Conduct
at
attorney
one
to
time
recognized
exercise
a
the
retaining
lien, see King v. Beale, 96 S.E.2d 765, 768 n.2 (Va. 1957), the
Virginia State Bar Standing Committee on Legal Ethics has since
clarified that “the ethical mandate [to safeguard and return
client property] virtually displaces the common law retaining
lien,”
Va.
Standing
Comm.
on
Legal
Ethics,
Op.
1690
(1997)
(“Holding a former client’s files hostage does not comport with
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a lawyer’s post-representation duty to take reasonable steps for
the continued protection of the client’s interests”).
Robol argues, however, that Ohio law, rather than Virginia
law, governs his conduct because he turned the documents over to
the Receiver in Ohio.
See Va. Rules of Prof’l Conduct R. 8.5(b)
(calling for application of the rules of the jurisdiction in
which a lawyer’s conduct occurred, for conduct not in connection
with a court proceeding).
He argues that Ohio law recognizes an
attorney’s retaining lien, citing Foor v. Huntington National
Bank, 499 N.E.2d 1297, 1301 (Ohio Ct. App. 1986).
We need not decide, however, whether the ethics rules of
Virginia or Ohio apply, because Robol’s claim would fail under
the rules of either jurisdiction.
Model
Rules
of
Professional
Although Ohio adopted the
Conduct,
it
modified
them
by
deleting language recognizing a retaining lien -- specifically,
language authorizing a lawyer to “retain papers relating to the
client to the extent permitted by other law,” Model Rules of
Prof’l Conduct R. 1.16(d) -- and substituting for that language
a provision that “[c]lient papers and property shall be promptly
delivered to the client” upon termination of a representation,
Ohio Rules of Prof’l Conduct R. 1.16(d); see also Reid, Johnson,
Downes, Andrachik & Webster v. Lansberry, 629 N.E.2d 431, 435
(Ohio 1994) (“[A]n attorney who is discharged must yield the
case file”); 6 Ohio Jur. 3d Attorneys at Law § 236 (cautioning
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against the assertion of an attorney’s retaining lien in light
of the decision in Lansberry).
intermediate
court
in
Ohio
Thus, despite the fact that an
once
recognized
the
common-law
retaining lien, it appears that the Ohio Rules of Professional
Conduct, which subsequently were adopted by the Ohio Supreme
Court,
have
displaced
the
retaining
lien
by
obligating
an
attorney to turn over files to the client upon the termination
of a representation.
In
any
event,
attorneys
in
Ohio
and
elsewhere
are
prohibited from asserting retaining liens when doing so would
cause foreseeable prejudice to the client.
See Ellen J. Bennett
et al., Am. Bar Ass’n, Ctr. for Prof’l Responsibility, Annotated
Model Rules of Professional Conduct R. 1.16 (7th ed. 2011) (“A
lawyer asserting a retaining lien is subject to the requirements
of Rule 1.16 and must take appropriate steps to protect the
client’s interests”); see also Ohio Bd. of Comm’rs on Grievances
& Discipline, Op. 92-8 (1992) (stating, before the adoption of
the
Ohio
Rules
of
Professional
Conduct,
that
“[w]henever
an
attorney asserts a legal right to an attorney’s retaining lien,
the attorney must make sure that assertion of the right does not
result in causing foreseeable prejudice to the rights of the
client”).
provided
By
to
Robol’s
the
own
admission,
Receiver,
including
the
maps
documents
and
that
he
navigational
charts, saved Recovery Limited “in excess of $600,000” in its
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efforts to relocate the wreck.
Consequently, Robol would not
have been permitted to retain possession of those documents to
the exclusion of his former client and thereby force that former
client, to its prejudice, to expend enormous time, effort, and
expense to recreate the information contained therein.
Thus, the rules of professional conduct in both Virginia
and Ohio have replaced the common-law retaining lien with an
attorney’s obligation to turn over all files to the client upon
termination of the representation, especially when, as here, the
failure
to
do
so
would
affirm
the
Accordingly,
we
Robol
preexisting
had
a
cause
district
duty
to
foreseeable
court’s
return
prejudice.
conclusion
files
to
his
that
former
clients, notwithstanding the fact that the clients had not paid
him all of the legal fees to which he claimed entitlement, and
therefore that his action was not voluntary.
III
Robol contends also that his return of the documents stored
in the portion of the West Sixth Avenue property leased to EZRA
was voluntary because, as he argues, he, not his clients, owned
the documents.
He reasons that EZRA’s failure to pay rent for
the property triggered default under the lease and that EZRA’s
failure
thereafter
abandonment of them.
to
remove
the
documents
effected
an
He argues that he thereupon became the
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owner of the documents and consequently that his turning over
the
documents
to
the
Receiver
was
a
voluntary
act.
This
argument fails for several reasons.
First, Robol has pointed to no Ohio law that would have
entitled him to engage in self-help repossession of the West
Sixth Avenue property upon the default of his tenant, and he has
made no claim that he repossessed the property through judicial
proceedings.
Ohio courts have held that commercial lessors are
entitled to self-help repossession of real property only where
“a
provision
in
the
lease
provides
for
self-help
Quigg v. Mullins, No. L-89-314, 1991 WL 59886,
repossession.”
at *5 (Ohio Ct. App. Apr. 19, 1991).
Robol’s lease with EZRA,
however, did not contain such a provision.
It provided that “if
the Premises shall be abandoned . . . and the same continues for
ten (10) days after written notice to Lessee by Lessor, then
Lessor
.
proceed
pursuant
Premises
.
and
.
may
to
remove
declare
the
Ohio
this
Revised
Lessee.”
Lease
Code
(Emphasis
terminated
to
repossess
added).
The
and
the
Ohio
Revised Code does not itself authorize self-help repossession,
providing
tenants.
only
a
judicial
remedy
against
See Ohio Rev. Code § 5321.03.
defaulting
Moreover, and more
importantly, even if Robol had lawfully repossessed the West
Sixth Avenue property, such repossession would not have entitled
him
to
take
ownership
of
the
19
personal
property
on
the
Appeal: 14-1950
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premises.
Filed: 06/22/2015
Pg: 20 of 23
See Greer v. Bruce, No. C-140121, 2014 WL 5817889, at
*3 (Ohio Ct. App. Nov. 5, 2014) (holding a landlord liable for
conversion of a defaulting tenant’s property where there was “no
evidence that [the tenant] had agreed to permit the [landlord]
to
summarily
confiscate
and
sell
the
property
stored
on
the
[landlord’s] land without compensating him for its value”).
Second,
court,
Robol
in
the
accounting
conceded
that
the
action
in
documents
the
Ohio
stored
at
district
the
Sixth Avenue property were not his, but rather his clients’.
West
As
he stated in an affidavit, “[t]he files provided to the Receiver
were not ‘Robol Law Office files’ or ‘Robol’s files,’” but were
rather “files owned and that had been controlled by the client.”
Such statements belie his claim that EZRA’s conduct gave him
ownership.
Third,
order,
when
the
contacted
possession,
Robol
Receiver,
Robol
not
seeking
only
pursuant
all
failed
to
the
company
to
assert
receivership
files
any
in
his
ownership
interest in the files -- arguing to the contrary that they were
client-owned files in which he had a possessory retaining lien
-- but also acquiesced in the Receiver’s demand.
this
behavior,
Robol
can
hardly
now
claim
In the face of
ownership
in
the
files.
Fourth,
abandonment
any
of
ownership
them
could
of
not
20
the
files
overcome
through
Robol’s
EZRA’s
overarching
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ethical duty, discussed above, to return files to his former
clients upon termination of the representation.
In sum, Robol’s claim that he owned the files located at
the West Sixth Avenue property and voluntarily turned them over
to the Receiver is completely devoid of merit.
IV
Finally, Robol contends that he should receive a salvage
award because he was able to convince Butterworth to return to
the Receiver photographs and videos that proved useful in the
renewed salvage operations.
reasons
given
by
the
We reject this argument for the
district
court.
Because
Butterworth
created the materials as an employee of Columbus-America during
the initial salvage operations, the materials were not his to
give, but rather belonged to his employer, and he was obligated
by
the
receivership
order
to
return
them.
Thus,
Robol’s
encouragement was nothing more than a collateral push to have
Butterworth comply with a preexisting legal obligation.
Such
effort by Robol cannot form the basis of a salvage award.
Moreover,
materials,
he
Consequently,
service to
when
he
his
was
can
Robol
still
hardly
clients
contacted
Butterworth
counsel
claim
entitles
award.
21
for
that
him
about
the
Columbus-America.
providing
personally
to
such
a
legal
salvage
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Pg: 22 of 23
V
Finally, we note the questionable posture of Robol’s claim
in this case.
For years, Robol represented Thompson, Columbus-
America, Recovery Limited, and other related entities as legal
counsel,
assisting
them
in
successfully
obtaining
a
salvage
award for their efforts in recovering gold and other artifacts
from
the
wreck
of
the
S.S.
Central
America.
Now,
after
concluding his representation, he claims his own salvage award
in competition with his former clients.
on
the
basis
that
he
“voluntarily”
And he does so largely
returned
to
his
former
clients their files related to the salvage effort.
Whether this
posture
interest
creates
an
impermissible
conflict
of
or
disloyalty is not something that we decide here, but it raises a
disquieting
question.
See
Ohio
Rules
of
Prof’l
Conduct
R. 1.9(c)(1) (prohibiting an attorney from “us[ing] information
relating to the [terminated] representation to the disadvantage
of the former client”); Va. Rules of Prof’l Conduct R. 1.9(c)(1)
(similar);
Restatement
(Third)
of
Agency
§ 8.05
&
cmt.
b
(prohibiting an agent from using the property of his principal
for his own purposes, even after the agency relationship has
concluded).
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Nonetheless, we affirm the district court’s dismissal of
Robol’s verified statement of claim for substantially the same
reasons given by the district court.
AFFIRMED
23
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