NCJ Number
43596
Journal
NLADA (NATIONAL LEGAL AID AND DEFENDER ASSOCIATION) BRIEFCASE Volume: 34 Issue: 4 Dated: (AUGUST 1977) Pages: 103-105
Date Published
1977
Length
3 pages
Annotation
THE HISTORY OF PUBLIC DEFENDER MALPRACTICE LITIGATION IS REVIEWED, AND THE LIKELIHOOD THAT BOTH THE QUANTITY AND QUALITY OF SUCH LITIGATION WILL INCREASE IS DISCUSSED.
Abstract
MOST MALPRACTICE SUITS AGAINST PUBLIC DEFENDERS HAVE BEEN INSTITUTED IN FEDERAL COURT UNDER THE CIVIL RIGHTS ACT OF 1871, 42 U.S.C. 1983. THE COURTS HAVE UNIVERSALLY DISMISSED THE CASES, USUALLY NOTING THAT PUBLIC DEFENDERS AND COURT-APPOINTED ATTORNEYS DO NOT ACT 'UNDER COLOR OF LAW' FOR PURPOSES OF SECTION 1983. OTHER REASONS OFTEN CITED IN SUPPORT OF DISMISSAL ARE THAT PLAINTIFFS' CLAIMS ARE REALLY TORT CLAIMS FOR MALPRACTICE AND THUS NOT COGNIZABLE UNDER SECTION 1983 AND THAT PUBLIC DEFENDERS AND COURT-APPOINTED ATTORNEYS IN CRIMINAL CASES ARE IMMUNE AS JUDICIAL OFFICERS FROM CIVIL LIABILITY. FEW DEFENDANTS HAVE BROUGHT MALPRACTICE CASES IN STATE COURTS. HOWEVER, IN THE CASE OF SPRING V. CONSTANTINO, DECIDED BY THE SUPREME COURT OF CONNECTICUT IN 1975, THE COURT HELD THAT THE ATTORNEY OCCUPYING THE POSITION OF PUBLIC DEFENDER AND ASSIGNED TO REPRESENT AN INDIGENT DEFENDANT DOES NOT ENJOY IMMUNITY FROM LIABILITY FOR PROFESSIONAL MALPRACTICE. THE CONNECTICUT COURT REJECTED THE ARGUMENT THAT PUBLIC DEFENDANTS ARE PROTECTED BY JUDICIAL, SOVEREIGN, AND STATUTORY IMMUNITY, AND CHARACTERIZED THE PUBLIC DEFENDANT IN QUESTION AS AN INDEPENDENT CONTRACTOR RATHER THAN AN EMPLOYEE OF THE STATE. DEVELOPMENTS THAT SUGGEST THE LIKELIHOOD OF AN INCREASE IN DEFENDER MALPRACTICE LAWSUITS INCLUDE EFFORTS TO CLARIFY WHAT A CRIMINALLY ACCUSED DEFENDANT HAS A RIGHT TO EXPECT FROM COUNSEL, AND THE U.S. SUPREME COURT FINDING THAT STATES MUST AFFORD PRISONERS ACCESS TO THE COURTS BY PROVIDING THEM WITH LAW LIBRARIES OR LEGAL ASSISTANCE.