The Birmingham law firm that helped usher in the creation of two controversial water utility boards to supplant the Cullman County Water Department has withdrawn as counsel from each case in the cavalcade of litigation that has followed since the controversy began in April.

Johnston, Barton, Proctor & Rose LLP — the firm that helped draft the incorporation documents required to bring the Governmental Utility Services Corporation of Cullman County (GUSC) and the South Cumberland Cooperative District (SCCD) into existence — notified county officials that it would no longer be attached as counsel in any of the three lawsuits in which it had previously represented the GUSC and SCCD, including one that is on appeal before the Supreme Court of Alabama.

The firm maintains that Cullman County must pay all outstanding legal fees accrued over the course of the last seven months before it will release any of the documents it generated up to and during the course of civil litigation relating to the water utilities. The earliest of the three lawsuits was filed on May 7.

Testimony from water department manager David Bussman in civil hearings indicated that the firm had provided some consulting services well in advance of the April 7 county commission meeting at which its name was first publicly mentioned in connection with services performed for the water utilities.

In a letter sent to county attorney Rusty Turner Monday, two attorneys for the Birmingham firm did not specifically reference whom they had represented throughout the cycle of litigation, but did demand payment from Cullman County.

That’s significant, since the lawsuits have seen a series of convoluted lawyer swaps, additions, plaintiff realignments, and paradoxical circumstances in which at least one individual on a governing body acted as a plaintiff in suing the body on which he sat. The resulting confusion has made it difficult for county officials and utility board members to defend their assertions concerning who the firm’s employer truly is.

County commission chairman James Graves has maintained that the commission never passed — or even considered — a resolution authorizing the hiring of Johnston & Barton, et. al. in a formal commission meeting. Bussman has stated in court that he had first retained the firm’s services by exercising his discretion as a department head to cull legal advice late last year in the search for ways to form a water utility on behalf of then-associate county commissioners Doug Williams and Wayne Willingham.

Williams and Willingham had squabbled with Graves over whether to pass a resolution last month formally authorizing the county to make past and future payments to the firm for services performed for the SCCD and the GUSC, as well as its representation of those parties — as well as the county commission — in ongoing litigation. The pair capitulated to tremendous public pressure at their last commission meeting, however, and did not consider that resolution.

Since then, the new county commission lineup passed a carefully-worded resolution of its own, formally distancing the county from any willing obligation to the firm.

That resolution uses language such as “The Cullman County Commission has discovered that the law firm...has purported to perform legal services for the county...Such services have been performed without the proper authorization from the commission...Any claim to attorney-client privilege held by the Cullman County Commission regarding the purported representation...is hereby waived to the extent necessary for the county attorney to conduct an investigation on behalf of the Cullman County Commission and to obtain all files regarding said representation.”

In the letter sent by Johnston & Barton, et. al., Monday, the firm declined to release any such documents, claiming an attorney’s lien against unpaid services.

“When we are paid in full by the Cullman County Commission and such lien is satisfied, we will consult with the Alabama State Bar to determine the appropriate course of action in connection with the proper documents to give you,” the letter states.

No mention is made of whether any documents the firm intends to withold would be subject to subpoena, in lieu of any ongoing claims of attorney-client privilege.



* Benjamin Bullard can be reached by e-mail at bbullard@cullmantimes.com or by telephone at 734-2131 ext. 270.