Wednesday, January 28, 2009
Court: State Lawyer Lacks Constitutional Right to Outside Practice
By KENNETH OFGANG, Staff Writer
The First Amendment does not protect a California deputy attorney general’s right to engage in outside practice, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel unanimously affirmed the dismissal of Deputy Attorney General Paula Lauren Gibson’s suit against the state and former Attorney General Bill Lockyer, now the state treasurer, and other officials. The judges, however, split 2-1 in favor of reversing an award of attorney fees to the defendants.
Gibson and Annette Goode-Parker, a senior legal analyst for the attorney general, filed a 42 U.S.C. Sec. 1983 action after Gibson was told that she would be fired if she did not withdraw as Goode-Parker’s attorney in a malpractice suit against Los Angeles attorney Harold Greenberg. That action stemmed from Greenberg’s handling of Goode-Parker’s divorce.
Skirmishing between Gibson and Greenberg resulted in two discovery sanctions awards against Gibson, which were upheld by the Court of Appeal in an unpublished opinion, and a claim filed by Greenberg with the state Board of Control, which reviews possible civil actions against the state and its employees.
Gibson waited nearly a year after filing the malpractice suit before seeking approval of the Attorney General’s Office to handle the matter, although the office has a written policy requiring advance approval of any outside practice. Gibson’s request was denied on the ground that the existence of Greenberg’s Board of Control claim presented a conflict of interest.
Gibson filed a grievance, asserting that the policy constitutes a prior restraint on speech. The grievance was rejected by Gibson’s superiors, including the chief deputy attorney general, and an appeal was rejected by the Department of Personnel Administration, leading to the federal suit.
U.S. District Judge Florence Marie Cooper of the Central District of California dismissed on the ground of qualified immunity, finding that the plaintiffs failed to allege that they had engaged in constitutionally protected activity. The judge also awarded the defendants more than $21,000 in attorney fees, finding the action to be frivolous.
Judge Susan Graber, writing yesterday for the Ninth Circuit, said the malpractice action was a private matter, not constitutionally protected speech on an “issue of public concern” such that a public employee would have a constitutional right to participate in the litigation.
“The malpractice action did not involve any suggestion of government malfeasance; nor did it purport to inform the public about the operation of government; nor was it relevant to the public’s evaluation of a governmental agency’s performance; nor did it challenge the conduct of any government official or agency, but only that of Goode-Parker’s former divorce lawyer,” Graber wrote. “In short, the malpractice action itself, along with Gibson’s involvement in it, was a private matter between Goode-Parker and her former divorce lawyer.”
Graber also rejected the argument that restricting the right of public lawyers to represent private clients has a “chilling” effect on the speech of those litigants.
Where an employee’s speech does not involve matters of public concern, the judge explained, any restrictions imposed by the public employer do not implicate the Constitution. Where matters of public concern are involved, Graber wrote, the court must apply a balancing test in determining the extent to which a public entity may restrict the speech of its employees.
The attorney general’s policy of requiring deputies to obtain advance permission to represent private clients is reasonable, the judge concluded, even when the underlying matter is of public concern.
Graber cited Williams v. IRS, 919 F.2d 745 (D.C. Cir. 1990), which upheld the Internal Revenue Service policy of requiring the agency’s lawyers to obtain advance written permission before engaging in outside employment or activities.
Noting that the policy challenged by Gibson and Goode-Parker was less restrictive than that upheld in Williams, since it does not apply to outside activities that do not involve law practice, Graber wrote:
“The requirement to seek written permission before engaging in outside representation allows the [Office of the Attorney General] to assess whether the requested outside employment creates any conflict of interest or impedes any other legitimate interest of the state. There is a close and rational relationship between the policy and legitimate governmental interests: The OAG has a legitimate interest in regulating practice-related conduct of its lawyers to avoid any conflict of interest and to avoid any potential prejudice to the OAG and its clients, as well as a legitimate interest in ensuring that its employees are devoting their full attention to the business of the OAG.”
Turning to the attorney fee issue, Graber concluded that because there was no prior Ninth Circuit law on the issue, the claim was not frivolous and fees should not have been awarded under 42 U.S.C. Sec. 1988. While that section permits an award to the prevailing party in a Sec. 1983, the Supreme Court has held that an award should be made to a prevailing defendant only if the claim is “groundless or without foundation.”
Senior U.S. District Judge Edward Reed of the District of Nevada, sitting by designation, concurred in the opinion.
Judge Richard Clifton, dissenting from the reversal of the attorney fee award, argued that the suit was, “in substantial part,” frivolous because the Ninth Circuit has “ample” precedent on the issue of what constitutes protected employee speech.
“A legal proposition can be frivolous even though this court has not previously rejected it,” the dissenting jurist wrote. “The contention that the First Amendment guarantees a lawyer employed by the government the right to file and pursue a private legal malpractice action on behalf of another person is such a proposition. Plaintiffs cite no authority supporting that proposition or any reasonable analogy. We might not have gone down this trail before, but it was not a hard trail to blaze.”
The case is Gibson v. Office of the Attorney General, 07-56124.
Copyright 2009, Metropolitan News Company