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Court Refuses to Kill Lawsuit Against Two Chicago Lawyers

June 26, 1989

WASHINGTON (AP) _ The Supreme Court today refused to kill a 1984 lawsuit against two Chicago lawyers stemming from their defending the city against charges of discrimination within its police department.

The court, without comment, turned away arguments that government defense lawyers never may be sued for civil damages based on what they do for their public client in a case.

Nineteen Chicago police officers sued the city and various officials in 1984, alleging discrimination in employment.

James Montgomery, then the city’s corporation counsel, and Donald Hubert, one of Montgomery’s top assistants, represented Chicago in the case.

They were named as defendants in a subsequent lawsuit. It alleges that Montgomery and Hubert violated the federal Fair Credit Reporting Act by hiring an investigative firm to obtain through false pretenses credit reports on the police officers who had sued the city.

The suit against Montgomery and Hubert alleges that they intended to use the information to embarrass and intimidate the officers.

Montgomery and Hubert sought to have the lawsuit against them dismissed. They said they are entitled to absolute immunity from civil liability because the alleged misconduct occurred as part of their representing Chicago in the job-discrimination suits.

U.S. District Judge Harry Leinenweber refused to dismiss the suit, and the 7th U.S. Circuit Court of Appeals upheld his ruling last Oct. 21.

The appeals court said that because the alleged misconduct was investigatory in nature, and allegedly occurred outside federal rules, it was ″removed from the judicial process and (is) not a function that rests uniquely within the duties of an advocate.″

Throughout most of its opinion, the appeals court seemed to acknowledge that government defense lawyers are entitled to the same absolute immunity from civil lawsuits afforded government prosecutors.

But in concluding, the appeals court said, ″We express no opinion on whether, under similar circumstances, the unique functions performed by prosecuting attorneys would entitle them to greater immunity than afforded government defense counsel.″

In the appeal acted on today, Chicago Corporation Counsel Judson H. Miner represented Montgomery and Hubert. He said the appeals court ruling ″is a dangerous narrowing of immunity (that) will damage, rather than promote, the public concerns that gave rise to the doctrine of absolute immunity for public attorneys.″

Miner added, ″This is the first case to deny government defense attorneys absolute immunity for conduct alleged to have been undertaken in the course of representing their public client.″

The case is Montgomery vs. Auriemma, 88-1439.


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