Posted Nov 28, 2011 11:30 am CST
The American Bar Association has filed an amicus brief supporting qualified immunity for a private lawyer who advised a California town on an employee matter.
The brief (PDF) argues that outside lawyers retained by public entities should have the same immunity from related suits as government employees, according to a press release. The U.S. Supreme Court is considering the issue in an appeal by lawyer Steve Filarsky, who was retained by the city of Rialto, Calif., to work on internal investigations of employees and wound up as a defendant in a suit filed by a firefighter.
A decision barring qualified immunity would deter private lawyers from representing government entities, according to the ABA brief. The threat of Section 1983 suits could also be an incentive for “less vigorous representation,” the brief says.
“The hard reality is that retention of private counsel is the only practical way for many smaller jurisdictions and government entities to obtain needed legal advice,” the brief says. Larger cities with in-house legal departments also hire private counsel because of conflicts or the need for special expertise.
“Without qualified immunity, the private attorneys who do continue to represent government clients will be forced to pass on the costs of increased risk, making legal services less affordable to their government clients,” the brief says.
The case, Filarsky v. Delia, will be argued Jan. 17.