As expected, the city attorney for Spanish Fort filed a brief in support of his objection to subpoenas filed in the harassment case against Mayor Mike McMillan, who is accused of slapping City Magistrate Lyndsey Cooper during an argument in City Hall on Oct. 1.
In December, attorney David Conner told Judge James Reid material sought from himself, McMillan and other municipal employees was protected under attorney-client privilege.
In the brief filed on Jan. 31, Conner wrote that any information he obtained from city officials was “for the purpose of providing professional legal services to the mayor, City Council and the officers of the city.”
Conner is listed as an attorney on the case, but McMillan is being represented personally by attorneys Donald Briskman and Shawn Alves. Set in Baldwin County District Court, retired Judge Reid was assigned to preside after Judges Michelle Thomason and Bill Scully both recused.
The complaint against McMillan lists four witnesses including Court Secretary Carol Caldwell and Building Permit Clerk Ashley Tucker, but subpoenas were also sent to Conner, City Clerk Mary Lynn Williams and former Police Chief David Edgar.
Arguing “the city holds the attorney-client privilege and the privilege exercised by and through the City Council and its officers and employees as necessary,” Conner only mentioned McMillan and Williams by name in the brief, but concluded the privilege may extend to “any other officer” roped into Conner’s legal advice.
“During the city and counsel’s investigation of the alleged incident which gave rise to this trial, counsel spoke several times with Mayor McMillan regarding the matter,” Conner wrote. “The Spanish Fort city clerk, Mary Lynn Williams, was present during some of counsel’s conversations with Mayor McMillan … the clerk works closely with counsel as city attorney to maintain records, draft correspondence, keep records of conversations, meetings and minutes and to report those to the City Council and mayor. Thus, her presence at meetings at which confidential information and communications are exchanged between counsel and the mayor and/or council members is subject to privilege.”
McMillan pleaded not guilty to the charge and a few days after his Oct. 31 arrest issued a short statement denying the charge.
“I look forward to having my day in court where all the evidence will come forth, and the truth will be borne out … I am satisfied that, after a full and fair hearing, the allegations against me will be disproved, and I will be exonerated.”
Objecting to the subpoenas, Conner wrote: “The prosecutor appears to claim that the privilege was waived, because counsel made a statement to the press in which he stated the mayor claimed he was innocent.” Even if admitted, it “is not the type of communication that waives any privilege between counsel, the city, the City Council and/or the mayor … prosecutors try cases day in and day out without attempting to seek privileged communications with an accused’s attorney in this type of case.”
Assistant District Attorney John Gamble is the lead prosecutor and asked Reid in December to uphold the subpoenas. He’ll have an opportunity to respond to Conner’s brief and thereafter the case will be set for trial.
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