But not so fast. In Burton v. Infinity Capital Management, the Ninth Circuit Court of Appeals refused to apply the doctrine of absolute quasi-judicial immunity to insulate a private lawyer from a claim that the order he drafted at the judge’s direction violated the automatic stay provisions of 11 U.S.C. § 362(a).
This is what happened. A Nevada state court judge ordered that a rule to show cause issue against attorney Koch when he learned that Koch deposited a personal injury award with the bankruptcy court rather than the Nevada state court. Attorney Gugino, in court representing a party asserting a lien against the settlement funds, was directed by the judge to prepare the show cause order.
Koch sued Gugino for preparing the order. The Ninth Circuit found that quasi-judicial immunity did not protect Gugino because he did not exercise judicial discretion in drafting the order. He merely acted as the judge’s scribe. The Court of Appeals further found that Gugino had “volunteered” to prepare the order. But the transcript hardly supported such a finding. During the hearing, the state judge declared, “I’m going to issue an order to show cause.” After dictating the details of the order, he asked, “Who wants to prepare the order?” The judge then said, “Mr. Gugino?” who responded, “I’ll prepare it, Your Honor.” This exchange could only be deemed to have secured a “volunteer” in the Ninth Circuit, in the military, or possibly in the marital relationship.
In dissent, Judge Gilman noted the unfairness of holding an attorney liable for carrying out the order of an immunized judge. He also lamented that the majority opinion “puts at risk the common practice of private attorneys drafting proposed orders on behalf of a judge.” Hopefully, Judge Gilman’s view will ultimately prevail since it is difficult to envision a trial court operating efficiently without orders drafted by attorneys.