In Delia v. City of Rialto, Case No. 09-55514 (Sept. 9, 2010) the Ninth Circuit examined whether a private attorney retained by the City to participate in internal affairs investigations, but who was not an employee of the City, was entitled to qualified immunity against Plaintiff’s § 1983 claims.  The attorney urged the Ninth Circuit to follow the Sixth Circuit’s decision in Cullinan v. Abramson, 128 F.3d 301, 310 (6th Cir. 1997), in which the Sixth Circuit held that a law firm that had been hired by the City of Louisville to serve as outside counsel was entitled to qualified immunity against plaintiffs’ § 1983 claims.  The court succinctly concluded: “We see no good reason to hold the city’s in-house counsel eligible for qualified immunity and not the city’s outside counsel.”  In arriving at this conclusion, the Sixth Circuit relied on language in Richardson v. McKnight, 521 U.S. 399, 407 (1997), that “the common law ‘did provide a kind of immunity for certain private defendants, such as doctors or lawyers who performed services at the behest of the sovereign.’ ” Id. at 310.

The Delia Court concluded, however, that it was not free to follow the Sixth Circuit’s Cullinan decision because it was bound by Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), in which another panel of the Ninth Circuit had held that a private attorney representing a county was not entitled to qualified immunity.  Gonzalez at 834-35.  In rejecting the attorney’s claim of qualified immunity, the Gonzalez court reasoned, “[the attorney] is not entitled to qualified immunity. She is a private party, not a government employee, and she has pointed to ‘no special reasons significantly favoring an extension of governmental immunity’ to private parties in her position.” Id. at 835 (quoting Richardson, 521 U.S. at 412).

As aptly noted by Attorney Harvey Randall on the New York Public Personnel Law blog, “the issue of whether an attorney in private practice performing services on behalf of a government entity may claim a ‘qualified immunity’ if named as a defendant as the result of some act or omission in the performance of his or her duties may be ripe for consideration by the Supreme Court.”