Filed: Jun. 22, 2015
Latest Update: Mar. 02, 2020
Summary: 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
Summary: 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-..
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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 by published opinion. Judge Niemeyer wrote the
majority opinion, in which Judge Duncan and Judge Thacker
joined.
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.
2
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. Columbus-America Discovery
Group (“Columbus-America”), acting 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. During the
same period, Robol also defended 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 also encouraged Milton T.
3
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 to finance the project;
4
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 salvage rights in the ship and its cargo.
Continuously from 1988 until 1991, Columbus-America 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
5
court against Thompson and the related business entities to
obtain portions of the award. 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 v. Recovery Ltd.
P’ship, 731 F.3d 608, 617 (6th Cir. 2013). 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. Thompson then fled and
became a fugitive. In April 2015, 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,
6
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 files and other property in their
possession.” 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). Thereafter,
during the period between July 25 and August 1, 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
which Robol had leased to EZRA.
Id.
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
7
defendant-entities. Williamson, 2014 WL 1884401, at *1.
Because the court found that Robol’s clients had repeatedly
failed in good faith to comply with its order, it twice held
them in contempt.
Id. Robol similarly failed to turn over
inventories and records of downstream sales that he had
possessed, repeatedly telling the court incorrectly that he had
already provided all of the relevant documents in his
possession, when, in fact, there were multiple unproduced
documents among the files that the Receiver retrieved from Robol
in July and August 2013.
Id. at *2–4. The Ohio district court
consequently granted the 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, and the amount expended in
prosecuting [the] Motion.”
Id. at *15.
Also in furtherance of the Ohio Court of Common Pleas’
June 14, 2013 receivership order, Recovery Limited, through the
Receiver, resumed salvage operations in the S.S. Central
America. 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
8
that it was the legal owner of salvage rights in the S.S.
Central America. Recovery Limited also commenced a
separate in rem action against the wreck and its cargo to
declare itself the salvor for future salvage operations and to
obtain a salvage award for all newly recovered gold and
artifacts. The district court entered orders dated 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 Columbus-
America.
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
9
interest from EZRA’s abandonment of them upon default of its
lease. More specifically, he alleged that he assisted the
salvage operation (1) by returning to the Receiver various
“maritime and navigational charts, maritime maps, locational
data, documents, drawings, historical data and accounts,
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 Limited, by its Receiver, filed a motion to
dismiss Robol’s claim under Federal Rule of 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.
10
By order dated August 8, 2014, the district court granted
Recovery Limited’s motion and dismissed Robol’s claim for a
salvage award as a matter of law. 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.” The court
concluded further that the photographs and 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.
11
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.” The
Sabine, 101 U.S. 384, 384 (1879) (emphasis added). Thus, a
valid salvage claim requires a “[s]ervice voluntarily rendered
when not required as an existing duty or from a special
contract.”
Id. (emphasis added). As an initial matter, Robol
argues that, in rejecting the 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,
12
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 documents because the Virginia Rules of
Professional Conduct preclude attorneys from exercising
retaining liens. Regardless of whether the district court was
correct on that point, it is clear that the court was not
rejecting an allegation of fact, but rather Robol’s legal
conclusion. 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
13
the court to reach that 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 that he owed a duty to return the
materials relating to the salvage operation to his 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 in
virtually every case relating to the salvage operation. Courts
are entitled to consider such matters of public record in
relying on motions to dismiss. 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
14
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.” Va. Rules of Prof’l Conduct
R. 1.16(e). Although Virginia at one time recognized the
common-law right of an attorney to exercise a 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
15
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. Although Ohio adopted the
Model Rules of Professional 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
16
against the assertion of an attorney’s retaining lien in light
of the decision in Lansberry). Thus, despite the fact that an
intermediate court in Ohio 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”). By Robol’s own admission, the documents that he
provided to the Receiver, including maps and navigational
charts, saved Recovery Limited “in excess of $600,000” in its
17
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 cause foreseeable prejudice.
Accordingly, we affirm the district court’s conclusion that
Robol had a preexisting duty to return files to his 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 to remove the documents effected an
abandonment of them. He argues that he thereupon became the
18
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
repossession.” Quigg v. Mullins, No. L-89-314, 1991 WL 59886,
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 . . . may declare this Lease terminated and
proceed pursuant to the Ohio Revised Code to repossess the
Premises and remove Lessee.” (Emphasis added). The Ohio
Revised Code does not itself authorize self-help repossession,
providing only a judicial remedy against defaulting
tenants. See Ohio Rev. Code § 5321.03. 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 personal property on the
19
premises. 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, in the accounting action in the Ohio district
court, Robol conceded that the documents stored at the West
Sixth Avenue property were not his, but rather his clients’. 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, when the Receiver, pursuant to the receivership
order, contacted Robol seeking all company files in his
possession, Robol not only failed to assert any 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. In the face of
this behavior, Robol can hardly now claim ownership in the
files.
Fourth, any ownership of the files through EZRA’s
abandonment of them could not overcome Robol’s overarching
20
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. We reject this argument for the
reasons given by 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, when Robol contacted Butterworth about the
materials, he was still counsel for Columbus-America.
Consequently, he can hardly claim that providing such legal
service to his clients entitles him personally to a salvage
award.
21
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. And he does so largely
on the basis that he “voluntarily” returned to his former
clients their files related to the salvage effort. Whether this
posture creates an impermissible conflict of interest 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).
22
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
