Private Attorneys Working for Government Get Qualified Immunity

The Supreme Court unanimously ruled on Tuesday that a private attorney temporarily retained by the government to carry out its work is entitled to seek qualified immunity from a civil rights lawsuit.

Chief Justice John Roberts wrote the opinion for the unanimous court, overturning the Ninth Circuit Court of Appeals decision in the case.

The case evolved from an employment investigation. Nicholas Delia, a City of Rialto firefighter, missed work after becoming ill on the job. The city began to suspect sick leave misuse, and, after observing Delia purchasing building supplies while he was supposedly sick, commenced an internal affairs investigation. Rialto hired Steve Filarsky, an experienced employment lawyer who had previously represented the city, to interview Delia.

During the interview, Delia acknowledged that he had purchased the supplies, but claimed that he had not yet done the work on his home. With the city's approval, Filarsky ordered Delia to produce the supplies, (over Delia's attorney's objection.) Delia showed the investigators the supplies, and then responded with a civil rights lawsuit against the city, the fire department, two fire chiefs, and Filarsky.

Delia alleged that the defendants violated his right against a warrantless, unreasonable search of his home in the course of an internal affairs investigation. The Ninth Circuit Court of Appeals agreed that the warrantless search violated Delia's Fourth Amendment rights, but found that the government entities and employees involved in the search were protected by qualified immunity.

Filarsky, however, was not a government employee, and the Ninth Circuit said that Delia could proceed with claims against Filarsky.

The Supreme Court disagreed.

The Court says that it's logical to extend qualified immunity to private lawyers working for the government due to the historical interaction between private lawyers and the government. Even the Attorney General maintained a private practice before the position became full-time in 1853.

At the time §1983 was enacted, private lawyers were regularly engaged to conduct criminal prosecutions on behalf of the State. Abraham Lincoln himself accepted several such appointments. In addition, private lawyers often assisted public prosecutors in significant cases. And public prosecutors themselves continued to represent private clients while in office--sometimes creating odd conflicts of interest. (Citations omitted.)

Citing to Wyatt v. Cole and Richardson v. McKnight, the Court noted that extending the common law interpretation of qualified immunity "protect[s] government's ability to perform its traditional functions" by helping to avoid "unwarranted timidity" in performance of public duties, ensuring that talented candidates are not deterred from public service."

The Court also observed that while some cities -- like New York -- have a full-time internal affairs staff, other cities -- like Rialto -- do not, and must rely on private individuals for investigations. "There is no reason Rialto's internal affairs investigator should be denied the qualified immunity enjoyed by the ones who work for New York," Justice Roberts wrote.

This is a big win for private attorneys who want to take government work. Are you more likely to take a government assignment after this decision?

Related Resources:

• Filarsky v. Delia (Supreme Court)
• Supreme Court to Consider Qualified Immunity for Lawyers Tuesday (FindLaw's Supreme Court Blog)
• Court Rules for Private Lawyer Hired by CA City (The Associated Press)
• Wyatt v. Cole (FindLaw's CaseLaw)