ABA wants immunity for lawyers representing public entities

Michael P. Tremoglie Nov. 22, 2011, 4:21pm


WASHINGTON (Legal Newsline) - The American Bar Association filed an amicus brief Monday with the U.S. Supreme Court, urging it to find that private lawyers representing public agencies are entitled to increased immunity from lawsuits.

The ABA submitted the brief in the case of Filarsky v. Delia, stating that private sector lawyers retained by public entities to do government legal work are entitled to the same immunity from related lawsuits that government employees have. The ABA maintains this is essential to protect the public interest.

The issue in dispute is whether a lawyer hired to work with government employees in conducting an internal affairs investigation is prevented from claiming qualified immunity because of his private lawyer status.

The case involves Steve A. Filarsky, a private lawyer, hired by the City of Rialto, Calif., to provide direction in the fields of labor and employment law regarding an investigation involving of a city firefighter, Nicholas B. Delia. During the investigation the firefighter claimed his civil rights were violated.

The plaintiff subsequently sued the city, its personnel and Filarsky for civil rights violations. All the defendants asserted qualified immunity, which the district court granted. But the U.S. Court of Appeals for the Ninth Circuit reversed as to Filarsky, concluding that he was not entitled to qualified immunity based on his status as a private lawyer.

The ABA wants the Supreme Court to overturn the Ninth Circuit's reversal.

The amicus brief asserts, "State and local governments frequently must retain private counsel for the effective and efficient performance of core governmental functions."

The brief adds that denying qualified immunity to outside lawyers from lawsuits stemming from their government work would deter them from representing public entities and "significantly impact the vital contributions that private attorneys make to effective government performance. On the other hand, ensuring qualified immunity would promote the strong public interest in the continuing representation of public entities by private counsel."

The issue can be a complex one. Professor Ronald Rotunda of Chapman University School of Law in Orange, Calif. notes instances where private employees, who are government contractors, have not been granted qualified immunity.

"So much of immunity is common law. Congress could take care of it by statute," Rotunda said. "But the court has been reluctant to extend qualified immunity to private firms or individuals acting on behalf of the government. For example, the courts have not wanted to grant qualified immunity to prison guards operating in a private prison."

When asked about private contractors other than attorneys receiving qualified immunity, a spokesperson for the ABA said that the brief addresses the issue of lawyers only. The ABA does not have a policy on nonlawyers receiving qualified immunity.

However, the ABA does believe it is critical to society for private attorneys to receive qualified immunity.

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