Tuesday, June 15, 2010

Government lawyers who go beyond giving advice may be civilly liable

I have heard complaints from several readers that their municipality or school board attorneys do not restrict themselves to giving legal advice. Rather, I am told that such attorneys dominate the elected officials and usurp their role of establishing policy. Today, I posted an entry on my blog (click here) which may interest readers who have similar complaints about their public body's lawyer.

To summarize the matter, a resident sued Township officials, including the Township attorney, for retaliating against him. The lawyer moved for summary judgment, claiming that he was immune from suit.

Federal Judge Mary L. Cooper, in a written decision, held that the lawyer wasn't necessarily immune from suit because there was evidence that he, without approval by or consultation with the elected officials, changed the Township's sign policy to the detriment of the plaintiff. Judge Cooper also observed that the Township attorney served in that position since 1976 and before 1976 served as a member of the municipal governing body. Judge Cooper said that while this could be innocuous, "such a long history with a single client does appear to raise an issue of fact whether [the lawyer] made policy determinations."

Cooper's written opinion is at the link above, and the relevant part of the opinion are at pages 17 to 26.

In sum, lawyers who are de facto policy-makers are not necessarily immune from lawsuits arising out of the policy determinations they make.

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