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Summary
6th Circuit reverses denial of qualified immunity to law firm
Court finds no clearly established First Amendment violation
Case involves alleged retaliation tied to tax referendum dispute
Ruling may expand defenses for private firms doing government work
A law firm was entitled to dismissal of an employment retaliation suit on qualified immunity grounds because no clearly established law put it on notice that firing one of its attorneys under the circumstances would violate the First Amendment, the 6th U.S. Circuit Court of Appeals has decided.
A Nashville city councilman allegedly threatened to withdraw business from the law firm due to the position one of its attorneys took as the chair of the county election commission on a tax referendum. When the attorney declined the law firm’s request that he oppose the referendum, the firm fired him.
The plaintiff sued the council member and the firm for retaliating against his federal free-speech rights.
A U.S. District Court rejected the assertion of qualified immunity by the defendants.
But the 6th Circuit reversed, ruling that the firm could invoke qualified immunity because of the government work it performed, and that it was entitled to dismissal because no clearly established law prohibited its conduct.
“We know of no case in which the First Amendment prohibited a law firm from firing one of its lawyers when the business interests of the firm, including demands from one of its clients, triggered the firing,” the court wrote.
Broadens defenses for private entities
Nashville attorney John I. Harris represented the plaintiff, and Nashville attorney Allison L. Bussell represented the defendants. Neither responded to requests for comment before deadline.
But Sterling Heights attorney Brian D. Wassom of Warner Norcross + Judd said the outcome of the case could broaden defenses for private entities doing government work in future cases.
“The essence of what [the court] holds is that if as a plaintiff you’re going to sue somebody under §1983, which alleges that they are a state actor even though they are actually a private entity, then [the defendant] also ought to be able to assert the same defenses that a state actor can, namely qualified immunity,” Wassom said.
Debate over taxes
The case stemmed from a debate over taxes. The plaintiff was a member of the Nashville election commission and worked at the defendant law firm, which also served as the city’s outside counsel.
The plaintiff alleged that city officials reached out to the firm in an attempt to influence him to keep a tax referendum off the ballot. According to the plaintiff, the firm’s general counsel raised potential conflict of interest concerns about the plaintiff’s roles on the commission and with the firm.
The plaintiff stood his ground and was later told no conflicts existed with his dual roles. But as the controversy over the referendum continued, the plaintiff was asked to meet with the firm’s general counsel and was given two options – resign from the commission and stay with the firm through the fiscal year or retire from the firm and stay on the commission. When the plaintiff asked for more time, he was fired.
He sued a city councilman, the firm and the city under U.S.C. §1983 and state law, claiming retaliation against his First Amendment rights, conspiracy to deny his freedom of speech and violation of several state laws.
The defendants moved to dismiss based on qualified immunity. A U.S. District Court rejected the motion, ruling that the plaintiff had plausibly alleged the councilman violated his federal free-speech rights and the firm, as a private entity, could not benefit from qualified immunity.
The councilman and the firm appealed.
Qualified immunity applies
The 6th Circuit concluded that the firm’s actions were driven by its business interests and therefore it could assert qualified immunity.
“Whether [the firm] acted honorably or not in firing [the plaintiff], it did not have clear notice that a law firm (or private company) violates the First Amendment by firing an employee when a government client threatens to take its business elsewhere if the employee continues to act adversely to the government,” the court wrote. “[The firm], for better or worse, sought to protect its client base, not to punish [the plaintiff] for his speech.”
However, the court upheld the denial of qualified immunity for the councilman, stating that if the allegations that he used his position to pressure others in a way that led to the plaintiff being fired for protected speech were determined to be true, that would violate the First Amendment.
“We have left no doubt that causing an employee’s firing due to his protected speech violates the First Amendment,” the court wrote. “[The councilman] had ample notice that pressuring an employer to fire an employee in retaliation for his protected speech ran afoul of the Free Speech Clause.”
The court remanded the case for further proceedings.
Judge Eric L. Clay issued a dissenting opinion, arguing that the extension of qualified immunity to the law firm created a new legal rule: When private attorneys and law firms provide legal services to a government body, they also are eligible for qualified immunity in connection with that work.
“In protecting its client base, allowing its business interests to drive its conduct, and seeking to maintain and increase the client revenue it generated — all facts recognized by the majority— [the firm] cannot be said to have worked ‘in the pursuit of government objectives’ or be ‘principally concerned with enhancing the public good,’” he wrote. “In the events at issue in this case, [the firm] neither functioned in a public capacity nor demonstrated any concern regarding the public interest that would warrant extending qualified immunity.”
