5-2 Positional Exemptions

• Jurisdiction: United States

5-2 Positional Exemptions

5-2:1 Prosecutors

In Office of the State Attorney, Fourth Judicial Circuit of Florida v. Parrotino,² the Florida Supreme Court noted, "[A]merican law has long recognized that prosecutorial immunity from suit rests on the same footing as the immunity conferred upon judges and grand juries."³ As a result, it generally is not possible to sue a prosecutor for legal malpractice.⁴

However, in Paylan v. Dirks,⁵ claims against two assistant state attorneys alleging violations of the Fourth Amendment and 42 U.S.C. § 1983, as well as tortious interference with a business relationship, survived a motion to dismiss because the "complaint does not . . . conclusively establish that the ASAs are entitled either to sovereign immunity or to qualified immunity."⁶ Without elaborating, the court noted that the complaint grew "out of the State Attorney's Office's investigation and prosecution of Paylan for narcotics violations."⁷

5-2:2 Public Defenders

In Windsor v. Gibson,⁸ the First District Court of Appeal declined to grant judicial immunity to public defenders in legal malpractice suits:

Considerations which require that a judge and prosecutor be immune from liability for the exercise of duties essential to the administration of justice . . . do not require that the same immunity be extended to the public defender. While the prosecutor is an officer of the state whose duty it is to see that impartial justice is done, the public defender is an advocate, who once appointed owes a duty only to his client, the indigent defendant. His role does not differ from that of privately retained counsel.⁹

In Wilcox v. Brummer,¹⁰ the Fifth District Court of Appeal reached the same conclusion.¹¹ Subsequently, in Schreiber v. Rowe,¹² the Florida Supreme Court held likewise,¹³ but noted that the Florida Legislature had made the issue largely moot by allowing public defenders to plead sovereign immunity.¹⁴

5-2:3 Government Lawyers

In Hand v. Mensh & MacIntosh, P.A.,¹⁵ a law firm represented the Florida Department of Revenue in a child support proceeding brought for the benefit of Donna Hand. She later sued the law firm for malpractice in a complaint that alleged "many facts which would be sufficient to support an action for negligence."¹⁶ The case was dismissed with prejudice¹⁷ due to the following statutory language:

The department and its officers, employees, and agents and all persons and agencies acting pursuant to contract with the department are immune from liability in tort for actions taken to establish, enforce, or modify support obligations if such actions are taken in good faith, with apparent legal authority, without malicious purpose, and in a manner not exhibiting wanton and willful disregard of rights or property of another.¹⁸

5-2:4 Union Attorneys

In Stafford v. Meek,¹⁹ a Miami-Dade County School Board employee was prohibited from suing the union attorney who represented her in an administrative dismissal proceeding.²⁰ The court cited dicta from DeGrio v. American Federation of Government Employees²¹...