YourABA December 2011 Masthead

Private lawyers doing government work should have qualified immunity, ABA urges Supreme Court

In an amicus brief filed in Filarsky v. Delia, the American Bar Association is urging the U.S. Supreme Court to protect the public interest by ruling that outside lawyers retained by public entities to do government legal work are entitled to the same immunity from related lawsuits that government employees have.

Steve A. Filarsky, a private lawyer, was retained by the City of Rialto, Calif., to provide labor and employment law guidance in an investigation involving firefighter Nicholas B. Delia. When Delia later sued the city, its personnel and Filarsky for civil rights violations, all defendants asserted qualified immunity, which the district court granted. 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 is asking the justices to overturn the Ninth Circuit's reversal. Oral arguments are scheduled for Jan. 17.

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

The brief, which was proposed by the ABA Section of State and Local Government Law, is available here.

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