United States District Court, S.D. Georgia, Augusta Division
MALLORY C. JONES and TROY A. MOSES, Plaintiffs,
RAMONE LAMKIN, Individually, and In His Official Capacity as Marshal of the and Magistrate Courts of Richmond County, Georgia, and AUGUSTA, GEORGIA, Defendants.
K. EPPS UNITED STATES MAGISTRATE JUDGE.
move the Court to compel Defendant Richmond County Marshal
Ramone Lamkin to testify regarding (1) legal advice sought
after his election but before his term of office began from
City of Augusta attorney Jody Smitherman, for which Marshal
Lamkin claims attorney-client privilege; and (2) the bases
for denials in the Answer of numbered paragraphs in the
Complaint, which Marshal Lamkin argues are legal rather than
factual. Plaintiffs seek sanctions and attorney's fees
because Marshal Lamkin followed the instructions of his
attorney and refused to answer questions concerning these
topics during his deposition. (See generally doc.
nos. 38, 39, 43.) The Court GRANTS IN PART
the motion and (1) COMPELS Marshal Lamkin to
testify regarding conversations with Ms. Smitherman before
his term of office began since no attorney-client
relationship existed at that time; (2) FINDS
the Answer denials at issue are either legal in nature or
already covered in Marshal Lamkin's first deposition; and
(3) FINDS sanctions and an award of
attorney's fees are inappropriate.
are former deputies of the Richmond County Marshal's
Office who supported incumbent Marshal Steve Smith in the
2016 election when he was defeated by Marshal Lamkin. (Doc.
no. 1, Compl. ¶¶ 3-6, 11.) By letters dated
December 6, 2016, Marshal Lamkin informed Plaintiffs as
Due to the change in administration and leadership, please
accept this as an official notice of the Richmond County
Marshal's Office to relieve you [sic] of your duty,
effective January 1, 2017. Please have all equipment issued
out to you by the Richmond County Marshal's Office turned
in to the quartermaster no later than December
(Id., Ex. A.) On January 6, 2017, Plaintiffs filed
suit alleging Defendants violated their First Amendment
rights by terminating their employment because of their
support for Marshal Smith during the campaign. (Doc. no. 18,
Lamkin testified at deposition that, after his election but
before his term of office began on January 1, 2017, he
conferred with Ms. Smitherman regarding Plaintiffs'
employment, made the decision to terminate the employment of
Plaintiffs, and issued the termination letters to Plaintiffs.
(See doc. no. 39-2 (“Lamkin Dep.”), pp.
16-20, 53-60.) Ms. Smitherman objected to any deposition
testimony concerning their conversation based on the
attorney-client privilege. (Id. at 17-19.) When
asked to explain denials in his Answer of Complaint
paragraphs 6, 7, 10 and 12 to 18, defense counsel instructed
Marshal Lamkin not to answer because the questions were legal
in nature, Marshal Lamkin was unqualified to answer as a
layperson, and he relied on advice of counsel in asserting
the denials. (Id. at 63-65, 145-57.)
No. Attorney-Client Relationship Existed When Marshal Lamkin
Conferred with Ms. Smitherman.
defense contends the communications between Ms. Smitherman
and Marshal-elect Lamkin are protected by the attorney-client
privilege. In support, Marshal Lamkin alleges in part the
d. Lamkin, due to winning the May 24, 2016 Election, was an
individual within the Marshal's Department who was
authorized to communicate with Smitherman regarding
e. Smitherman's conversations with Lamkin about the
Plaintiffs took place after he won election and held the
position of Marshal-Elect.
(Doc. no. 41, p. 8.) “The party invoking the
attorney-client privilege has the burden of proving that an
attorney-client relationship existed and that the particular
communications were confidential.” Bogle v.
McClure, 332 F.3d 1347, 1358 (11th Cir. 2003) (citation
omitted); see also In re Grand Jury Proceedings 88-9
(MIA), 899 F.2d 1039, 1042 (11th Cir. 1990) (recognizing
first requirement of establishing claim of attorney-client
privilege is proof that asserted holder of privilege is a
Marshal Lamkin recognizes in his brief, Rule 1.13 of the
Georgia Rules of Professional Conduct defines the
relationship between an attorney and a corporation or
governmental entity. Subsection (a) of Rule 1.13 provides
that “[a] lawyer employed or retained by an
organization represents the organization acting through its
duly authorized constituents.” GA ...