Yesterday the Supreme Court heard arguments in Filarsky v. Delia, another lawyering case on the docket this term. At issue is whether qualified immunity extends to a private lawyer hired as outside counsel by local government to conduct an internal affairs investigation.
Early in the oral argument Chief Justice Roberts questioned:
Lawyers--lawyers are not supposed to be cowed by the exigencies of the situation. We're worried in qualified immunity with protecting governmental actors, to make sure they will feel comfortable doing the right thing rather than being intimidated in the situation we had here. Lawyers have that professional obligation in the first place. So why does a lawyer need the--the defense of qualified immunity?
But he then later observed:
Your case highlights, I think is a very good example of why the lawyer ought to have qualified immunity. I mean this is a case where it looks like there's a lot of threatening and bullying going on. … I mean, it seems exactly the kind of situation for which qualified immunity was developed. We want Filarsky to give what he--do what he thinks is the right thing in this situation. We don't want him to be worried about the fact that he might be sued. … Isn't that exactly why we have qualified immunity?
The full transcript is available here.
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