The public defender as private offender: a retreat from evolving malpractice liability standards for public defenders.

• Author: Sadoff, David A.

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INTRODUCTION

Suppose a public defender(1) omitted interviewing an alibi witness, failed to call a relevant expert to the stand, or neglected to move for the exclusion of illegally seized evidence. Suppose further that, as a result, his client's case was jeopardized. Should the client, an indigent criminal defendant, have the opportunity to sue the public defender for civil damages(2) on account of malpractice? And, if so, what legal standard should be used to determine liability? This Note seeks to determine a fair, coherent, and realistic negligence(3) standard governing criminal malpractice(4) suits against public defenders.(5)

Currently, states(6) lack a uniform negligence standard for public defender malpractice. The vast majority of states adopt ordinary tort negligence as their standard.(7) In recent years, many state courts, evidently dissatisfied with this traditional approach, have deviated from the norm. By and large, these states have adopted more protective approaches, ranging from public defender immunity on wholly public policy grounds,(8) to the heightened liability threshold of gross negligence(9) to stiffer pleading requirements.(10) This wide-ranging experimentation sets the stage for a wholesale re-examination of the public defender malpractice standard.(11)

Determining a satisfactory standard by which to evaluate malpractice claims against public defenders is critical to ensuring the legal system's effectiveness and integrity. The presence and impact of public defenders today are pervasive. Public defender offices serve most of the American population,(12) with especially wide coverage in highly populated areas.(13) Public defenders play a pivotal role in our criminal justice system, representing society's most economically and politically disadvantaged.(14) The legitimacy of and public confidence in our court system depends in no small part on the perception that indigents receive fair and adequate representation. A system of justice, after all, is only as effective as its treatment of the most disenfranchised.

The question of how to treat malpractice actions against public defenders is also timely. In recent years, the incidence of crime, especially felonies, has risen sharply nationwide.(15) Because eighty percent of all felonies are committed by indigents,(16) as indictments rise, so too will the volume of cases assigned to public defenders. State and county governments also face shrinking budgets, placing an ever-greater financial strain on the provision and quality of indigent defense services.(17) Coupled with the fact that malpractice suits have become an increasingly popular remedy for tort victims of professionals generally,(18) malpractice litigation against public defenders can reasonably be expected to increase. Further, as state experimentation with the malpractice standard continues, the potential arises for other states to model their own standard after such novel approaches.

In Part I, this Note describes the rarefied working conditions and pressures faced by public defenders, but rejects granting them an overall heightened level of protection from liability due to countervailing ethical obligations. Part II discusses the substantial legal and practical obstacles to filing and winning malpractice actions against public defenders, heavily insulating them from tort liability. Part III evaluates the arguments for granting public defenders some form of malpractice immunity and demonstrates the strength of a liability rule.

Finally, Part IV examines both well-established and optional features of a malpractice liability standard, concluding that, with one exception, the predominant standard of ordinary tort negligence should persist. The sole situation in which public defenders should be entitled to complete protection is when their negligence results directly from budgetary constraints in connection with securing necessary out-of-office investigators, translators or experts.

1. The Character of the Public Defender's Job

   There are few positions as laden with tension and contradiction as that of the public defender. He is typically a government employee and yet functions as private counsel. In most instances, he is paid and staffed by the very entity - the state - he opposes in his client representations. He is an integral part of the judicial system and yet typically treated as an outsider. He is sometimes appointed by the very judges before whom he argues in court. He is lauded for defending the defenseless, but often resented when he defends them successfully.(19)

   The unique character of his job renders a public defender more exposed than private or specially appointed counsel(20) to a criminal malpractice claim. The public defender is typically confronted with burdensome and challenging caseloads; severe resource constraints; distrusting, litigious, and unreliable clients; and real or perceived collusion with or coercion by judges, prosecutors, or both.

   In recognition of these unusual pressures and sensitive relationships, some argue that public defenders deserve a level of protection from malpractice liability above and beyond that accorded their criminal defense counterparts. Notably, however, public defenders themselves are not among those calling for special treatment. Moreover, the American Bar Association (ABA) has made clear that public defenders are to be held to the same professional and ethical standards as any other defense counsel.(21)

   1. Heavy Caseloads and Underfunding

      Public defenders are characteristically saddled with an overwhelming volume of cases.(22) As a result, they cannot always invest the amount of time each case requires, or necessarily defend each client vigorously.(23) In this connection, public defenders have been faulted at times for "playing for the average" by strategically apportioning their efforts according to each case's likelihood of success or failure.(24)

      While admittedly public defenders work under considerable time pressure to process large numbers of cases, this circumstance does not exempt them from their basic responsibilities. According to the ABA, a public defender's functions and duties with respect to his clients are no different from those of assigned or privately retained counsel.(25) More specifically, the ABA exhorts "defender organizations" not to "accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations."(26) As for the allegation that public defenders are prone to "play for the average," empirical evidence is scarce,(27) and there is no reason to believe they would be any more inclined to make such strategic calculations than busy private attorneys.

      The difficulty of the public defender's job is arguably exacerbated by the fact that an indigent client can recommend and insist upon frivolous defenses or tactics with financial impunity. Unlike the paying client who must carefully consider each claim or defense in light of the number of billable hours he will be charged, it is contended that the indigent defendant has no such "brake" on the type of defense he wages.(28) Pursuing such frivolous matters consumes time which the public defender could otherwise allocate to more promising avenues of defense for the same or another client.

      This argument is unpersuasive, however, as a justification for differential liability treatment for public defenders. To begin, assuming arguendo that public defender clients are more apt than paying clients to file frivolous malpractice claims against their attorneys, this tendency reflects wholly on client motives, and not on attorney performance. Moreover, client motives do not, and should not, necessarily translate into legal claims: Attorneys are prohibited, as an ethical matter, from handling frivolous claims, notwithstanding attorney-client financial arrangements.(29) Further, even if such frivolous suits were filed, they should be subject to swift summary judgment.

      Public defender services are notoriously underfunded. Available financial resources are often inadequate to provide even minimally effective representation.(30) All too frequently, expert witnesses go unhired and investigations unlaunched.(31) A losing client is more likely to sue for malpractice if he perceives, reasonably or unreasonably, that resources were inadequately expended on his behalf. And such suits, whether meritorious or not, tie up a public defender's precious time.

      According to ABA Standards, however, "[t]he legal representation plan [of defense services] should provide for investigating, expert, and other services necessary to quality legal representation."[32] While public defenders are supposed to represent their clients using adequate resources, those resources are to be furnished by the government. "The Government has the responsibility to fund the full cost of quality legal representation for all eligible persons . . . ."(33) Because the onus of providing adequate resources lies ultimately with the government, to the extent a public defender's negligence is attributable to a resource shortfall beyond his immediate or direct control, he arguably should be granted protection from liability.(34)

      However, office budgets are fungible, and virtually and alleged negligent conduct by a public defender could be characterized post facto as a function of financial constraints beyond his control. Therefore, a line must be drawn between those constraints that warrant conferring protection and those that do not. The one scenario that should qualify for such protection is when a public defender's operating budget precludes him from hiring an investigator, translator, or expert in a case requiring such service.(35) This exception is discussed infra in Part IV(B)4.

   2. Client Distrust and Sensitivity

      A public defender's susceptibility to a malpractice claim is heightened by virtue of...