Immunity Defenses Don't Shield Bar Counsel From Lawsuit Based on Conduct as Witness

By Samson Habte

June 15 — A bar prosecutor has neither absolute nor qualified immunity from a lawsuit alleging that he violated a lawyer's civil rights by making false statements as a complaining witness in a purportedly baseless disciplinary case, the U.S. District Court for the Eastern District of Louisiana held June 10.

Judge Martin L.C. Feldman said it was not clear as a threshold matter that disciplinary counsel are entitled to the sort of immunity that insulates criminal prosecutors from civil liability for actions tied to their official duties.

But the absolute immunity defense would fail “even if [the defendant] were a criminal prosecutor,” Feldman said, because “a prosecutor [is] not entitled to absolute immunity when she was acting as a complaining witness rather than a lawyer.”

Qualified immunity does extend to “certain functions outside the scope of [the] prosecutorial role,” Feldman acknowledged. But that defense too is unavailable here, he said, because it doesn't apply when an official violates “a statutory or constitutional right that was clearly established at the time of the challenged conduct.” That is what is alleged in this case, the court said.

Respondent's Revenge

After prevailing in a disciplinary case that accused him of violating lawyer Internet advertising rules, Kearney Loughlin filed suit against the Louisiana Attorney Disciplinary Board, the Office of Disciplinary Counsel and various officials.

Loughlin claims the advertising rules he was charged with violating are unconstitutional—a question the Louisiana Supreme Court didn't reach when it dismissed his disciplinary charges—and part of his lawsuit seeks an injunction to prevent the bar from enforcing those rules.

Loughlin also sued Deputy Disciplinary Counsel Gregory L. Tweed in his individual capacity. The complaint alleges that Tweed violated Loughlin's First and Sixth Amendment rights by making false statements in the underlying ethics complaint and by refusing to give sworn testimony in the ensuing disciplinary hearings.

“As the complaining witness, Tweed falsely asserted that [Loughlin]’s website was online in October 2011, falsely asserted that [the] website was subject to the advertising rules, and falsely asserted that [the] website violated the advertising rules,” Loughlin said in his lawsuit, which seeks damages for a “claim analogous to malicious prosecution” under 28 U.S.C. §1983.

No Immunity

Tweed said he was entitled to either absolute or qualified immunity. The court rejected both defenses.

As an initial matter, Feldman said, “Tweed's conclusory claim that he is entitled to prosecutorial immunity because the Louisiana Attorney Disciplinary Counsel performs many of the same functions in attorney disciplinary proceedings as are performed by a criminal prosecutor is weak at best.”

“Under Kalina v. Fletcher, 522 U.S. 118 (1997), even if Tweed were a criminal prosecutor, he would not be entitled to absolute immunity because of his role as a complaining witness,” Feldman added.

The court also shot down Tweed's qualified immunity claim.

While that defense can extend to acts a prosecutor engages in “outside the scope of [the] prosecutorial role,” Feldman said, it does not insulate officials from liability for actions that violate “a statutory or constitutional right that was clearly established at the time of the challenged conduct.”

“Loughlin submits with good reason that his complaint shows that ‘Tweed's conduct was not only objectively unreasonable in light of clearly established law, but that he was deliberately indifferent to Loughlin's right to exercise free and truthful speech without fear of prosecution,'” Feldman wrote.

“Tweed offers no compelling or reasonable argument that he is entitled to qualified immunity for—if Loughlin's allegations are proven true—serving as the complaining witness in a case bringing charges against Loughlin based on the content of a defunct Web site and then refusing to testify under oath or present admissible evidence,” he stated.

Assistant Attorney General David Glen Sanders, Baton Rouge, La., represented Tweed and the other defendants. Loughlin, of New Orleans, appeared pro se.

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