Vol. 7, No. 2, Pg. 14. Limited Liability for Court Appointed Counsel: Statutory and Common Law Considerations.

• Author: By Susan Taylor Wall and Valerie A. Palmer

South Carolina Lawyer

1995.

Vol. 7, No. 2, Pg. 14.

Limited Liability for Court Appointed Counsel: Statutory and Common Law Considerations

14Limited Liability for Court Appointed Counsel: Statutory and Common Law ConsiderationsBy Susan Taylor Wall and Valerie A. PalmerAll lawyers licensed to practice in South Carolina are subject to appointed service in the state's criminal and family courts. A court appointed lawyer does not have the right to refuse to serve or to choose his client, even if the assignment involves legal issues and courtroom practice that fall outside the scope of the lawyer's usual area of practice. Once assigned to the case, the lawyer may be required to provide representation for months or even years, most often without compensation.

Although the state court system of justice depends on the court's ability to appoint counsel, court appointed service may lead to a civil malpractice action, whether sounding in negligence or otherwise, even where the lawyer provides diligent and competent representation. Because the appointed lawyer is involuntarily exposed to potential claims, some form of protection is warranted to shield the lawyer from the unlimited liability that may attach.

This article will examine the basis for limited immunity under state tort claims acts, as well as policy considerations in limiting liability for court appointed lawyers in both criminal and family courts through common law principles. The common law rationale for immunity in criminal courts is different from that infamily court; consequently, separate discussions are warranted.

Court Appointment in General Sessions

In South Carolina, licensed lawyers are subject to court appointment as counsel in criminal court matters. "[A]ny person entitled to counsel under the Constitution of the United States . . . and . . . unable to retain counsel . . . shall be provided [counsel] upon order of the appropriate judge. . . ." S.C. Code Ann. § 17-310 (Law. Co-op. 1976). This title also provides a limited compensation scheme for such court appointed counsel.

In certain large counties, the roster of lawyers eligible for appointment is divided into two lists, one for criminal matters and one for family court matters. Lawyers are allowed to place their names on either of the two lists, and from these dual lists, the courts make random appointments, whether for defense of indigent persons accused of a crime, for representation in post-conviction relief (PCR) petitions, to serve as guardians ad litem (GALs) or lawyers for GALS or to represent parties in the family court. Smaller counties, however, do not have such dual lists; this may cause particular hardship on lawyers unfamiliar with one of the areas of practice to which they are appointed.

16 Some counties in South Carolina have created public defender corporations to handle most criminal matters. The South Carolina Code allows a majority of the lawyers in a county, if they desire, to create a corporation known as the defender corporation for the affected county. S.C. Code § 17-30-60 (Law. Co-op. 1976). The corporation is governed by a three-member board and is empowered to hire full and part-time defenders. Where the Public Defender's office in a particular county has a conflict, however, licensed lawyers within the county are subject to appointment for that matter. A tax lawyer, real estate lawyer or probate lawyer may find himself appointed by the court to represent a prisoner in General Sessions Court. At the conclusion of that matter, he may also find himself a named defendant in a civil lawsuit.

Common Law Immunity. South Carolina has no reported case law regarding common law immunity for court appointed criminal lawyers or...