About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

32 Am. Crim. L. Rev. 883 (1994-1995)
The Public Defender as Private Offender: A Retreat from Evolving Malpractice Liability Standards for Public Defenders

handle is hein.journals/amcrimlr32 and id is 897 raw text is: THE PUBLIC DEFENDER AS PRIVATE OFFENDER: A RETREAT FROM EVOLVING MALPRACTICE LIABILITY STANDARDS FOR PUBLIC DEFENDERS INTRODUCTION ...................................... 883 1. THE CHARACTER OF THE PUBLIC DEFENDER'S JOB ......... 887 A. Heavy Caseloads and Underfunding .................... 888 B. Client Distrust and Sensitivity ......................... 891 C. Pressure to Accommodate Judges and Prosecutors .......... 893 II. THE NATURE OF MALPRACTICE CLAIMS AGAINST PUBLIC D EFENDERS ........................................ 894 A. Filing a Malpractice Action .......................... 894 B. Plaintiff Obstacles in a Malpractice Action ............... 896 C. The Predominant Negligence Liability Standard ........... 900 III. EVALUATING A PUBLIC DEFENDER IMMUNITY RULE ........ 903 A. The Affirmative Case for a Liability Rule ................. 903 B. Sovereign, Official and Judicial Immunity ................ 904 C. Immunity on Public Policy Grounds .................... 909 D. Level of Immunity ................................. 920 IV. RETREATING TO A SENSIBLE MALPRACTICE LIABILITY STANDARD ......................................... 921 A. Ordinary vs. Gross Negligence ........................ 922 B. Defining Standard of Care for Ordinary Negligence ......... 924 C. Proof of Actual Innocence as a Pleading Requirement ....... 928 CONCLUSION ....................................... 930 INTRODUCTION Suppose a public defender' omitted interviewing an alibi witness, failed to 1. A public defender is a salaried attorney, typically funded by the public, who represents criminally charged indigents. See ROBERT L. SPANGENBERG ET AL., ABT ASSOCIATES INC., NATIONAL CRIMINAL DEFENSE SYSTEMS STUDY: FINAL REPORT 9, 14 (Bureau of Justice Statistics, U.S. Dep't of Justice, NCJ-94702, Sept. 1986) [hereinafter SPANGENBERO] (public defenders are salaried on a full-time or part-time basis; they may be funded either: (i) exclusively by the State, (ii) jointly by the State and County, or (iii) by private bar services, especially in rural areas). Public defenders are to be distinguished from other types of indigent defense lawyers-particularly contract defense attorneys and assigned counsel-both of which hail from the private sector, and are court-appointed and -funded. See id. at 9 (discussing characteristics of three chief types of criminal defense services available to indigents). Whether as draftees or volunteers, private counsel are appointed pursuant to the Criminal Justice Act (codified as 18 U.S.C. § 3006A (1988 & Supp. V 1993)). Public defenders should be further distinguished from Legal Aid Society attorneys, who also represent indigent clients but generally not in criminal matters, and never in the capacity as government employees. Public defenders are defined here to include all nonprobationary public defender chiefs, as well as

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most