Will Patrick Robinson’s Nightmare Become a Real-Life Catastrophe for The Digital Business Law Group?

Carlos Leyva and Linda McAleer have been Robinson’s attorneys through a declaratory action seeking to have a judge declare the copyrights to the works of the late Gene Scott abandoned. They are currently representing Robinson in his defense for the copyright infringement cases brought by Dolores Press and Melissa Scott.

These attorneys advised Robinson to proceed with the declaratory action despite there being a last will and testament, corporate board minutes, audio/video recordings and copyright notices fixed on every recording by Dr. Gene Scott; each measure taken to apparently protect the copyrights of the contested works. Upon the advice from these two attorneys, Robinson moved forward with a weak case. Robinson’s evidence failed in his Motion for Summary Judgment. Furthermore, it seems that when Robinson’s legal team discovered that there were fatal flaws in their case, they attempted to shift their legal theory from complete abandonment to a Naked License theory. This is an unconventional tactic to say the least. To succeed in a Motion for Summary Judgment the moving party must show that there is no genuine dispute as to any material fact. The finding of evidence that would cause a reduction in the relief requested is at least a genuine dispute of material fact. The 9^th Circuit judges point this out during oral arguments in the appellate court. Linda McAleer unsuccessfully attempted to disguise this fatal legal flaw into a mitigation strategy. McAleer argued: “…its similar to if you’re in a personal injury or contract case where you initially believe your case is worth a half million dollars ($500,000) and through discovery and expert witnesses and fully understanding all of the facts of the case you realize, my injury is only two-hundred thousand ($200,000), so I’m going to adjust my request accordingly rather than seeking more than I’m entitled to…” But a reasonable attorney should have known that this genuine dispute of material facts would cause their Motion for Summary Judgment to fail. Furthermore, the discovery deadline in the declaratory action had already lapsed at the time the parties filed their competing Motion for Summary Judgment. There was no new evidence presented during the briefing of these motions. Any evidence that these lawyers had that their request for relief was unsupported existed before Robinson’s attorneys filed their brief. So, this begs the question: what did these attorneys know and when did they know it? Did the attorneys convince Robinson to spend money on a lost cause? Did they suspect that this entire case would lose, but they could cash in on a movement started by an impassioned minister?

Robinson started the grassroots movement, called the FUMS (FUture of My fellow Scotties) Fund, a group which Robinson addresses regularly on the YouTube channel self-titled “Patrick Robinson”. Carlos Leyva appeared in two of these videos, stating that he was not only the attorney for Robinson et al., but also a “Delta-Force Member” (a self-designated name for the members of the FUMS fund). The FUMS fund generated donations from individuals who also wanted to publicly reproduce, redistribute, and publish the copyrighted works of Gene Scott and they were made to believe that these attorneys could deliver on these promises. These donations were used to pay the lawyer’s fees and costs; Robinson openly discussed these facts within his FUMS series videos found on YouTube.

The appellate court denied Robinson’s attempt to revive his declaratory action and his lawyers may have been the cause of such a defeat. Their work was sloppy at best, negligent at worst. As discussed above, the legal team ought to have known and informed Robinson when the MSJ was filed, that they risked losing. Based upon the new findings that Linda McAleer discussed at the 9^th Circuit oral arguments this risk was clear; after conducting discovery they determined that complete abandonment was out of the question, they could only ask for limited abandonment. But they did not, they still asked for complete abandonment possibly knowing that they could not win.

How much did these motions cost Robinson, et al.? It is not known to this writer, but Robinson has stated on his video series that the debt to the lawyers is over one-hundred thousand dollars ($100,000). It is also known that Dolores Press is seeking three hundred and seven thousand dollars ($307,000) for their attorney’s fees and costs and the 9^th circuit says they are entitled to compensation. Dolores Press is also seeking eighty thousand dollars ($80,000) for attorney fees and costs of the appellate briefing and arguments.

Are the lawyers informing Robinson of all the legal consequences? Have they informed him of the possibilities of losing the cases against him and potentially owing millions in damages and the additional attorney’s fees from the current cases? Only these two lawyers and Robinson can know for sure. But Leyva and McAleer could be in for ethics violations. Perhaps even a legal malpractice lawsuit.

Could Robinson prove that his attorneys breached a fiduciary duty?

In all likelihood Robinson can prove his attorneys have a fiduciary duty, that they breached that duty by acting negligently, failing to disclose important information (such as the potential to lose the case) , or unlawful use of funds, that Robinson suffered damages and that Leyva and McAleer are the legal cause of those damages.

Should these lawyers have known that they were not likely to prevail on this declaratory action? Yes, their own legal theory supports that fact. Should they have advised their client against filing legal papers for a case he was likely to lose? Yes, basic ethics make this clear. Should a reasonable attorney have advised a client who is incapable of paying, to continue in a lawsuit generating hundreds of thousands of dollars in legal fees and with a multi-million-dollar award being requested? No. A reasonable attorney would advise their client to avoid infringing on another’s copyrights. These lawyers are now treading on uncharted waters. It will be completely up to the judge to determine if their actions rise to being sanctionable. We can only wait and see what will be the outcome of this action. Stay tuned as Robinson’s attorneys have recently filed a Motion for Summary Judgment in the copyright infringement case against him and others in his group.