Supreme Court Justices Mull Issue of Qualified Immunity for Private Attorneys Conducting Investigations for Public Clients

by Mike Mintz on January 23, 2012 · 2 comments

in Labor and Employment Law,

The U. S. Supreme Court recently heard arguments in the case Filarsky v. Delia (appealed from 9th Cir. 9/9/10) involving a private employment attorney, Steve Filarsky, retained by the City of Rialto to conduct an internal affairs investigation. Filarsky caused the City to order respondent firefighter Delia to consent to a warrantless search of his home. Delia subsequently brought a civil rights claim against both the City and Filarsky alleging, among other things, a violation of the Fourth Amendment. The district court granted Filarsky’s and the City’s motion to dismiss based on qualified immunity, but the Ninth Circuit Court of Appeals reversed in part, ruling that Filarsky, a private attorney, could not enjoy such immunity. Other circuit courts have granted qualified immunity to private lawyers retained by the government, and the Supreme Court must now resolve the circuit courts’ split.


Delia claimed to feel sick after cleaning up a toxic spill, but the Fire Department was suspicious of his claims because he had recently been experiencing disciplinary problems. The Fire Department commenced an internal investigation after discovering that Delia had been purchasing insulation for his home while claiming to the Department that he was physically incapacitated. The Department asked Filarsky, a private attorney, to lead the investigation. Delia subsequently admitted purchasing the insulation but claimed that he had not installed it yet.

During the investigation, Filarsky asked Delia’s permission to allow Department officials to enter his home and inspect the insulation without a warrant, but Delia refused.  Filarsky then obtained a written order from the Fire Chief, directing Delia to produce the insulation for inspection. Delia subsequently agreed and permitted the Department access to his home to inspect the insulation rolls. Delia then filed a civil rights claim under 42 U.S.C. §1983 against both Filarsky and City officials, alleging that the warrantless inspection of his house constituted a violation of the Fourth Amendment and an invasion of privacy pursuant to the Fourteenth Amendment. The U.S. District Court for the Central District of California dismissed the claim, concluding that all the defendants were entitled to qualified immunity.

On Delia’s appeal to the Ninth Circuit (Delia v. City of Rialto, 621 F.3d 1069 (9th Cir. 2010) the court affirmed the grant of qualified immunity to the City officials, but reversed the grant of immunity to Filarsky, refusing to follow the Sixth Circuit precedent in Cullinan v. Abramson, 128 F.3d 301 (6th Cir. 1997). Instead, the Ninth Circuit conformed to its own case law, which declined to extend qualified immunity in civil rights suits to private attorneys hired by the government. Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003). The U.S. Supreme Court granted certiorari to resolve the split between the circuit courts.

Filarsky’s Arguments

Filarsky contends that without the protection of immunity, private attorneys will refuse to represent the government, fearing exposure to liability from plaintiffs’ lawsuits. The loss of immunity may significantly raise private attorneys’ professional insurance premiums, driving many of them back into the private sector. Aggravating the situation is the failure of many malpractice policies to cover constitutional torts. Even where those policies that do cover such torts, the attorney would be exposed to liability exceeding the amount of the insurance coverage.  Also, some states prohibit insurers from covering punitive damages, which are allowed under Section 1983 actions.

Filarsky also claims that denying qualified immunity to private attorneys would raise the cost and lower the quality of legal services provided to the government.  Additionally, local government agencies will be hurt financially because they use private attorneys to represent them in order to save money. Furthermore, denial of qualified immunity will have a chilling effect on the attorneys because they will not be as candid and open when giving their legal opinions, thus forcing the government to make decisions on a less informed basis.

Delia’s Arguments

Delia claims that Filarsky is exaggerating and being speculative, claiming that private attorneys will not give up working for the public sector just because they do not receive qualified immunity. He claims that  all private attorneys, no matter their clients, face the risk of malpractice suits.  Moreover, there are other ways for private attorneys like Filarsky to protect themselves from liability.  For example, they can assert a good faith defense to Section 1983 actions.

Delia also claims that normal market competition would ensure that private attorneys provide their clients with efficient and vigorous representation. If private attorneys sacrifice effective legal representation over concern for protecting themselves against liability, market competition would replace these attorneys with others who can provide effective representation. Furthermore, Delia claims that the risk of liability from immunity related issues is lower than liability from malpractice.

Filarsky’s Proposed Test

Filarsky proposes the implementation of a functional-inquiry test to determine if a private attorney is entitled to qualified immunity. Courts would determine if the private attorney is the equivalent of a government employee by looking at his roles and duties. Under the test, the courts would look to the nature of the private attorney’s duties, the amount of supervision and control the attorney is subject to, the attorney’s role in the government’s exercise of essential duties, and the immunity afforded to government officials in that same role.

Delia’s Proposed Rule

Delia, however, rejects Filarsky’s functionality test as arbitrary and unsupported by precedent. First, determining whether a private attorney is under “close” government supervision is a fact-sensitive question that may end up circumventing immunity by having the public employees that are supposed to be protected by the immunity being dragged into the courtroom to perform this inquiry. Also, non-attorneys often conduct internal investigations—it is not exclusively an attorney’s duty or role.  Therefore, under Filarsky’s proposed rule, immunity might be extended to non-attorneys who perform such investigations on behalf of the government. Delia instead proposes that courts perform a “reasonableness” inquiry, asking, e.g., whether a reasonable attorney trained in conducting government personnel investigations would know that a warrantless search of Delia’s home was illegal.


No doubt, the Supreme Court’s decision will clarify the limits of the qualified immunity doctrine.  It could not have come at a better time. This issue becomes ever more significant these days because of budget constraints facing municipalities. These fiscal limitations lead to governments’ increasing use of private attorneys to perform governmental functions, hence the need for guidance from the Supreme Court.

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Supreme Court Justices Mull Issue of Qualified Immunity for Private Attorneys Conducting Investigations for Public Clients « The Leslie Brodie Report
January 23, 2012 at 8:12 pm
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