U.S. SC: Outside lawyers entitled to immunity for government work

Jessica M. Karmasek Apr. 17, 2012, 3:30pm


WASHINGTON (Legal Newsline) - The U.S. Supreme Court, in a unanimous ruling Tuesday, affirmed that outside lawyers retained to do government legal work are entitled to the same immunity from related lawsuits as government employees.

Nicholas B. Delia, a firefighter employed by the city of Rialto, in California, missed work after becoming sick on the job.

Suspicious of Delia's extended absence, the city hired a private investigation firm to conduct surveillance on him.

When Delia was seen buying fiberglass insulation and other building supplies, the city initiated an internal affairs investigation. It hired Steve A. Filarsky, a private attorney, to interview Delia.

At the interview, which Delia's attorney and two fire department officials also attended, Delia acknowledged buying the supplies, but denied having done any work on his home.

To verify Delia's claim, Filarsky asked Delia to allow a fire department official to enter his home and view the unused materials. When Delia refused, Filarsky ordered him to bring the materials out of his home for the official to see.

This prompted Delia's attorney to threaten a civil rights action against the city and Filarsky.

After the interview, officials followed Delia to his home, where he produced the materials. Delia then sued the city, the fire department, Filarsky and other individuals, alleging that the order to produce the building materials violated his Fourth and Fourteenth Amendment rights.

A federal district court granted summary judgment to the individual defendants on the basis of qualified immunity.

The U.S. Court of Appeals for the Ninth Circuit affirmed with respect to all individual defendants except Filarsky, concluding he was not entitled to seek qualified immunity because he was a private attorney, not a city employee.

The nation's high court disagreed with the Ninth Circuit, holding that a private individual temporarily retained by the government to carry out its work is entitled to seek qualified immunity from suit.

"Allowing suit under Section 1983 against private individuals assisting the government will substantially undermine an important reason immunity is accorded public employees in the first place," Chief Justice John Roberts wrote for the Court.

Immunity under Section 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis, the Court noted.

Further, affording immunity not only to public employees but also to others acting on behalf of the government serves to ensure that talented candidates are not deterred by the threat of damages suits from entering public service, it said.

"The government's need to attract talented individuals is not limited to full-time public employees. Indeed, it is often when there is a particular need for specialized knowledge or expertise that the government must look outside its permanent workforce to secure the services of private individuals," Roberts explained in the Court's 16-page ruling.

"This case is a good example: Filarsky had 29 years of specialized experience as an attorney in labor, employment and personnel matters, with particular expertise in conducting internal affairs investigations. The city of Rialto certainly had no permanent employee with anything approaching those qualifications.

"To the extent such private individuals do not depend on the government for their livelihood, they have freedom to select other work -- work that will not expose them to liability for government actions. This makes it more likely that the most talented candidates will decline public engagements if they do not receive the same immunity enjoyed by their public employee counterparts."

The American Bar Association urged the same position in an amicus brief it filed in the case.

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

The ABA argued 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."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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