Sometimes it does not pay to be clever, even if you are invoking the law. That is one of the lessons to be learned from the 9th Circuit Court of Appeals decision in Arias v. Raimondo (June 22, 2017).

Employee Raimondo worked for Angelo Dairy. The Dairy was aware that Raimondo was an illegal alien and used that information to keep him in their employ. Angelo sued the Dairy in California State Court for unfair competition, a variety of workplace, overtime pay, rest and meal period violations. However, to derail the action ten weeks before the trial in the state court action, the Diary’s counsel contacted U.S. Immigration and Customs Enforcement (“ICE”) and arranged with them to take Raimondo into custody at his scheduled deposition and remove him from the United States. The plan succeeded and ICE detained Raimondo. Based on the real threat of deportation Raimondo settled and released his claims against the Dairy.

Two years later Raimondo sued the Dairy, its owners and its lawyers, in Federal Court claiming that the defendants’ actions constituted retaliation for his workplace claims under the Federal Labor Standards Act. The U.S. District Court dismissed the case for failure to state a claim but, the 9th Circuit Court of Appeals reversed. It held that Raimondo had stated sufficient facts to constitute a claim for retaliation against the Dairy, its owners and its attorneys. It held, while only employers are liable for workplace violations, anyone, including the Dairy’s attorneys, could be liable for improper employment retaliation.

Moral of this story – bad facts make bad law. As one commentator has stated:

There are ethical rules that state that an attorney in California “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.” Lawyers who violate that rule or otherwise abuse their power, can be sanctioned, suspended, and even disbarred. There are also civil claims available for abuse of process and malicious prosecution. So there are penalties for this type of behavior already. However, giving plaintiff’s the right to sue their employer’s lawyers for retaliation will lead to far more problems than it will solve. Litigation is inherently contentious. Parties tend to dislike the lawyer on the other side. But in every other situation I know of, courts have ruled that there’s no right to sue the other side’s lawyer and that allowing such suits will lead to a multiplicity of litigation.

The 9th Circuit Court of Appeals thought otherwise and now, we are all at risk. To quote John Scalzi, ““The failure mode of clever is “asshole.’”

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.