Court Weighs Protections for Lawyers Hired by Cities - NYTimes.com

Court Weighs Protections for Lawyers Hired by Cities - NYTimes.com

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WASHINGTON — The Supreme Court on Tuesday considered whether private lawyers hired by municipalities to conduct investigations are entitled to protections against lawsuits available to government lawyers.

In the process, the justices expressed varying views about the state of the legal marketplace and the obligations of lawyers to offer independent advice, even if it exposed them to lawsuits.

Justice Sonia Sotomayor suggested, for instance, that no special protections were needed because “there is a whole slew of unemployed lawyers who would be happy to take on any government service they can.”

Chief Justice John G. Roberts Jr. at one point said that lawyers may not need special protection because they were required to give their best advice for any client. “Lawyers are not supposed to be cowed by the exigencies of the situation,” he said.

Later, though, Chief Justice Roberts expressed concern that an outside lawyer working for the government should “do what he thinks is the right thing in this situation,” adding: “We don’t want him to be worried about the fact that he might be sued.”

The case, Filarsky v. Delia, No. 10-1018, arose from an investigation of Nicholas B. Delia, a firefighter in Rialto, Calif., who had been suspected of improperly taking sick days. The city filmed Mr. Delia buying rolls of fiberglass insulation at a home improvement store while he was on medical leave, questioned him about the purchases and required him to retrieve the insulation from his home.

A three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, determined unanimously that various city officials and the private lawyer, Steve A. Filarsky, had violated Mr. Delia’s rights under the Fourth Amendment, which prohibits unreasonable searches. But the panel dismissed the suit against the officials, saying they were protected by qualified immunity.

That doctrine shields state officials from liability for civil rights violations so long as their conduct did not violate “clearly established” law.

The question before the justices was whether the suit against Mr. Filarsky should also have been dismissed on qualified-immunity grounds. A majority of the justices seemed inclined to answer yes.

The main hurdle was a 1997 decision of the court, Richardson v. McKnight, which ruled that people employed by private prisons were not entitled to qualified immunity while those who worked for prisons run by the government were.

Nicole A. Saharsky, a lawyer for the federal government who argued in support of Mr. Filarsky, said the Richardson decision involved “a fairly unique case in which the private prison was so removed from the day-to-day workings of government officials.”

Justice Anthony M. Kennedy, who had dissented in Richardson, said he did not see the difference. “It’s just hard to imagine anything more imbued with state action than imprisoning someone,” he said.

Patricia A. Millett, a lawyer for Mr. Filarsky, said that lawyers must be protected from even subconscious pressures to hedge their advice and that local governments may not be able to retain good lawyers if those lawyers fear lawsuits.

Michael A. McGill, a lawyer for Mr. Delia, said it had long been the law in the Ninth Circuit that private lawyers working for the government were not entitled to qualified immunity.

Justice Antonin Scalia, the author of the dissent in Richardson, responded that “there’s a lot of bad, cowardly legal advice being given in the Ninth Circuit,” adding: “I don’t really know that, but you don’t know the opposite, either, do you?”

“I don’t,” Mr. McGill said."