The Public Defender as Private Offender: A Retreat from Evolving Malpractice Liability Standards for Public Defenders

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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. …