Client May Claim Personal First Amendment Interest In Lawyer’s Advocacy On His Or Her Behalf

In Eng v. Cooley, (— F. 3d —, C.A.9 (Cal.), January 14, 2009), the United States Court of Appeals for the Ninth Circuit considered whether a client may claim a personal First Amendment interest in statements made by his attorney to support his lawsuit against government employees who claimed qualified immunity in his First Amendment retaliation lawsuit. The Court of Appeals held the client may claim a personal interest in the statements made by the attorney on his behalf.


David Eng is a Los Angeles County Deputy District Attorney. Eng was assigned to a task force (“Task Force”) to investigate crimes related to the Los Angeles Unified School District’s Belmont Learning Complex (“Belmont). Steve Cooley, the newly-elected District Attorney, had promised during his campaign to reform Belmont and deliver indictments against prominent individuals involved in the project. After an extensive investigation, Eng recommended that no criminal charges be brought.

A newspaper article had already reported that the Los Angeles School District (“District”) would have to refinance the lease-purchase agreement used to finance Belmont at a substantially higher interest rate. Eng stated that the agreements were canceled because Anthony Patchett, an assistant to Cooley, “had improperly leaked to the IRS that the School District had committed fraud in purchasing the Belmont property.” Eng thought the lease-purchase agreements were legal and that the “IRS was ‘wrong and should be rectified.’” Cooley was angered by Eng’s statements and told him to “shut up.”

Eng claims that for several months after he presented the Task Force’s findings, Cooley and members of his staff met to discuss how they could force Eng out of the District Attorney’s office. Eng was later informed that he was being investigated for sexual harassment of a law clerk with whom he had previously engaged in a consensual relationship. Although the law clerk denied that Eng had sexually harassed her, Eng was suspended from work, and then later received a demotion. No harassment charges were ever brought against Eng. Eng was also suspended from work for using an office computer to access private data. The Civil Service Commission ordered the District Attorney’s office to allow Eng to return to work after the computer charges were dismissed, but instead Eng’s suspension was extended for 30 days.

The Los Angeles Times published an article which included an interview with Eng’s attorney in which he “detailed Eng’s allegations that he had been prosecuted because he refused to file criminal charges against individuals involved in the Belmont School project, and because he complained that it was improper for members of the Task Force to contact the IRS.” Two weeks after the Times published the article, the District Attorney’s office served Eng with a second notice of intent to suspend. This notice was based on events that occurred the previous year. An official in the District Attorney’s office offered to “resolve matters” if Eng would publicly apologize to the District Attorney and tell the Times that his attorney’s comments were inaccurate and unauthorized. Eng did not agree to these demands and the office issued a second notice of suspension. The Civil Service Commission subsequently resolved all the District Attorney’s office’s allegations in favor of Eng. Eng returned to work, but he later discovered he was not receiving full benefits and has since been passed over for promotion.

Eng filed a lawsuit under 42 U.S.C. § 1983 against Cooley and several current and former attorneys from the District Attorney’s office (collectively, “Defendants”) in which Eng claimed that the Defendants retaliated against him for exercising his First Amendment rights when he commented about the Belmont project and the leaks to the IRS and also when he spoke through his attorney to the press. The Defendants moved for summary judgment asserting that they had qualified immunity from suit. The federal district court granted their motion in regard to Eng’s recommendation that no criminal charges be filed in connection with the Belmont project. The court concluded that Eng was fulfilling his job duties when he presented his Task Force recommendations. The district court denied the Defendants’ motion for summary judgment regarding Eng’s comments about the IRS leaks and the attorney’s comments to the press. The Defendants appealed the district court’s decision.


The first question before the Court of Appeals was whether Eng could assert a First Amendment claim for his attorney’s speech. The court answered this question in the affirmative. The court found that both Eng and his attorney have a first person constitutional interest in the attorney’s speech. There is a “long-recognized First Amendment right to hire and consult an attorney.” The court opined that the “First Amendment’s prohibition against state retaliation for hiring a lawyer would ring hollow if the state could simply retaliate for the lawyer’s advocacy on behalf of the client instead.” A “client’s free speech interest in an attorney’s speech on the client’s behalf therefore necessarily follows from the client’s First Amendment right to retain counsel.” Because the attorney spoke on Eng’s behalf, the attorney’s words “were Eng’s words as far as the First Amendment is concerned.”

The next question before the court was whether Eng alleged a First Amendment violation of his interest in his own speech and that of his attorney. The state, as an employer, “may not abuse its position to stifle ‘the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.’” To state a claim for First Amendment retaliation, Eng is first required to show that the speech at issue addressed an issue of public concern. Next, Eng must show that “the speech was spoken in the capacity of a private citizen and not a public employee.” Eng also bears the burden of showing that the state took an adverse employment action against him and that his speech was a substantial or motivating factor in that adverse action.

If Eng establishes these three factors, the burden then shifts to the government to show, under a balancing test, that its “legitimate administrative interests outweigh the employee’s First Amendment rights.” This balancing test asks “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” If the government fails this balancing test it may alternatively show that it “would have reached the same [adverse employment] decision even in the absence of the [employee’s] protected conduct.”

The court concluded that Eng alleged facts sufficient to support his claim that his First Amendment rights were violated in regard to comments he made regarding the leak to the IRS and his attorney’s statements on his behalf. Eng’s speech was a matter of public concern because it related to the functioning of the government. Under the facts alleged, Eng spoke as a private citizen. Eng had no duty to complain about the leak to the IRS or have his attorney speak to the press about the government’s retaliation against him. Eng established that the initial investigation and suspension was motivated by his protected speech and that later actions such as his demotion were also motivated by his speech. Defendants, on the other hand, failed to meet their burden to show that their adverse employment decisions were justified or that they would have taken the adverse employment actions against Eng in the absence of his protected speech.

The court also concluded that Eng’s First Amendment rights were clearly established at the time his rights were violated. Accordingly, the Court of Appeals affirmed the district court’s denial of Defendants’ claims to qualified immunity.


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