FDLS Compound, Oklahoma City, home of Warren Jeffs, 2006. Photo: wikimedia

A divided panel of the 10th U.S. Circuit Court of Appeals has reinstated most of a legal malpractice case brought by former members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints against the polygamist sect’s lawyer, concluding he and his firm were “well aware of the crimes being committed against plaintiffs.”

Thursday’s ruling, by the U.S. Court of Appeals for the Tenth Circuit, reversed dismissal of the case, which alleged that attorney Rodney Parker and his Salt Lake City-based law firm, Snow Christensen & Martineau, used the law to help the religious group’s former leader, Warren Jeffs, force underage girls into “spiritual marriages,” while collecting legal fees from individual church members.

Jeffs, convicted in 2011 of two felony counts of child sexual assault, is serving a sentence in Texas of life in prison plus 20 years.

In 2017, a federal judge in Salt Lake City dismissed the case, brought by 22 former FLDS members, largely because they filed the lawsuit long past the applicable statutes of limitations.

But the Tenth Circuit, in a 2-1 ruling, reinstated the legal malpractice claims of 15 of the plaintiffs. The panel found that the plaintiffs could plausibly argue that they believed Parker and his firm represented them individually while helping Jeffs. The panel also reinstated some of the other claims, including alleged violations of the Trafficking Victims Protection Reauthorization Act, which prohibits forced labor.

“In this case, plaintiffs allege facts supporting their claims that defendants were well aware of the crimes being committed against plaintiffs, did nothing to expose those atrocities, tacitly approved of the conduct by constructing a scheme for the purpose of enabling it, and benefited for years from plaintiffs’ payments of a considerable amount of attorney fees,” wrote Circuit Judge Stephanie Seymour.

Plaintiffs’ attorney Brett Godfrey, of Godfrey Johnson in Englewood, Colorado, did not respond to a request for comment.

Parker did not respond to an email seeking comment, but one of his lawyers in the case, Brent Hatch, of Hatch, James & Dodge in Salt Lake City, noted in an emailed statement that the Tenth Circuit affirmed dismissal of “more than half of the plaintiffs’ claims.”

“As to the remaining claims, the 10th Circuit remanded to the district court for further findings to determine whether those claims can proceed,” he wrote. “It is noteworthy that one of the appellate judges voted to dismiss all the claims now without further review. We are confident that further review will confirm that Snow Christensen & Martineau was not the plaintiffs’ lawyer, and that the remaining claims are without merit and will be denied.”

The dissenting judge, Mary Briscoe, voted to affirm dismissal, concluding that the majority “fails to adhere to either the ruling made by the district court or the arguments actually asserted by plaintiffs in their appellate brief, and also does most of the heavy-lifting for plaintiffs in terms of fleshing out their claims, both factually and legally.”

The case, brought in 2016, alleged that Parker and his firm amended a trust in 1998 for the FLDS that assumed ownership of everyone’s property. Parker also allegedly held himself out as the lawyer for individual FLDS members in order to extract millions of dollars in attorney fees from them.

U.S. District Judge Ted Stewart, citing various statutes of limitations, dismissed all but one plaintiff’s claim under the Trafficking Victims Protections Reauthorization Act. But he dismissed that count, also, for failing to state a claim. In dismissing the case, the judge found that Parker and his firm did not represent individual church members but only the trust, which now is under the receivership of the Utah attorney general’s office.

On appeal, the plaintiffs insisted the representation was much more than that.

In a response brief, Parker and his firm, founded in 1886, acknowledged they represented a client whose “beliefs were unpopular” but defended their actions.

“The unlawful actions that plaintiffs allege Jeffs and the FLDS church committed were neither committed by nor are they legally attributable to SCM,” says the response brief, insisting that their involvement with the trust ended in 2005. “In none of these matters did SCM agree to do anything more than provide professional legal services.”

The Tenth Circuit disagreed, reinstating legal malpractice claims brought by 15 plaintiffs, of whom 12 also also could assert fraudulent and negligent misrepresentation claims. Nine plaintiffs could move forward on the forced labor claims.

The panel upheld the trial court’s dismissal of claims under the U.S. Racketeer Influenced and Corrupt Organizations Act.

The panel’s majority found it was reasonable for individual church members to believe Parker and his firm had “implied attorney-client relationships” with them because church leaders repeatedly asked them to give money to pay for legal fees. While Stewart, in his dismissal ruling, focused on the firm’s limited role with the trust, the complaint alleged that FLDS leaders demanded church members donate $1,000 a month toward attorney fees, particularly after law enforcement raided the group’s compound in Texas in 2008.

“While plaintiffs do reference the reinstated trust throughout their arguments, the majority of the complaint’s relationship-based allegations involve a fee solicitation scheme far greater than the mere passing of a Sunday tithing plate,” Seymour wrote.

In so ruling, the majority pointed to the “extremely unusual circumstances” of the plaintiffs, who had limited access to the outside world or a formal education.

The panel also found possible tolling of some statutes of limitations, concluding there was a “factual question” as to when the plaintiffs, under such “intensive indoctrination and seclusion,” should have first been suspicious about Parker and his firm, who also may have fraudulently concealed that they were exploiting them.

As to the forced labor statute, the panel found that Jeffs was the primary offender, forcing FLDS members to engage in excruciating labor and sexual acts, but that some of the plaintiffs could plausibly allege that Parker and his firm made money by participating in such a “venture.” One plaintiff claimed he was 12 years old when ordered to move to Texas to help build the compound. Several female plaintiffs allege Jeffs forced them to marry him, or to marry older men or relatives, when they were teenagers.

“Defendants had ample notice of the illegal activities which were taking place within the FLDS community while they were actively seeking to enforce Mr. Jeffs’ control and simultaneously protecting him from any liability,” Seymour wrote.