This case involves allegations that the law firm (Dickinson Wright) committed legal malpractice in connection with work on a proposed “Indian casino project” in Oklahoma.
During the representation Plaintiffs requested that the law firm “to provide an opinion on any issues that might preclude the proposed gaming project from successfully moving forward.”
On August 17, 2011, the Tribe issued a gaming license to plaintiffs. According to their complaint, the law firm advised them that “‘the August 17, 2011 gaming licensure concluded the applicable regulatory process and Class II and Class II gaming may now be conducted.'” The law firm further advised that a non-tribal party would lack standing to make a legal challenge to the project. Plaintiffs claim that they proceeded with the project based on these “assurances.” The law firm also opined that the Tribe had authority to grant the license. Plaintiffs also claimed that the law firm failed to advise them that the Oklahoma Attorney General could take actions to stop the development of the casino. In May 2012, the National Indian Gaming Commission (NIGC) issued a memorandum stating that the Tribe did not have jurisdiction.
Unfortunately, the State of Oklahoma filed a lawsuit in federal court alleging that the tribe did not have authority to approve the license. The State initially obtained an injunction against the project but the Tenth Circuit reversed the injunction and dismissed the complaint.
The legal malpractice complaint alleged that the due to the law firm’s alleged negligence (a) the State of Oklahoma sued; and (b) the law firm gave improper advice on the issue of the Tribe’s jurisdiction to approve the casino.
Result: The complaint was dismissed for failure to state a claim.
First, the plaintiffs prevailed in the litigation with the State of Oklahoma so there was no legal malpractice as to that lawsuit. Put another way, nothing the firm did caused plaintiffs to lose a case.
Second, the issue of tribal jurisdiction was an unsettled question of law. Thus, any error by the defendants was an error in judgment, not legal malpractice.
Third, plaintiffs claims were premature and their damages speculative because the NIGC’s memorandum (that the Tribe did not have jurisdiction) was not a final determination and no appeals had been exhausted. Thus, without a final determination that there could not be a casino the plaintiffs had not sustained any damages.
Edward X. Clinton, Jr.