I'll join Judge Gilman (sitting by designation from the Sixth Circuit) over Judge Thomas (from the Ninth) in this one. It's far from a no-brainer. But I think that Judge Gilman has the better of the argument.
The question is whether an attorney who prepares a proposed order at the direction of a judge is entitled to immunity. The judge who signs or directs the preparation of that order obviously gets absolute immunity, even if that order violates (as alleged here) an automatic bankruptcy stay. Is the attorney similarly situated? Is he like a law clerk, who's (indisputably) immune from preparing an order? Or is he more like a "private volunteer" who shouldn't be immune?
Judge Thomas, joined by Judge Rawlinson, thinks that it's the latter, and so hold than an attorney can indeed be sued for preparing a proposed order at the express direction of a judge. Judge Gilman would hold otherwise. But he's dissenting.
Perhaps remember this the next time a judge asks you to prepare an order. If you want to get out of the resulting work, feel free to say: "Thanks for the offer, Judge. I'd love to. But I don't want to get sued. So you're going to have to do it yourself."
Then let me know how that works out for you.
