Ferri v. Ackerman Petition and Briefs

    The Supreme Court 
of the United States

Francis Rick Ferri
versus

Daniel Ackerman

Petition and Briefs

Law Reprints
Criminal Law Series
Volum e 11, no. 1 
1979/1980 Term



IN THE

Suprem e Court of tf)t ® niteb i§>tateg
OCTOBER TERM, 1978

No. 78-5981

FRA NCIS RICK FERRI,
Petitioner,

D A N IEL ACKERM AN,
Respondent.

ON WRIT OF CERTIORARI TO 
THE SUPREME COURT OF PENNSYLVANIA

BRIEF FOR THE PETITIONER

JULIAN N. EULE 
Klein Hall
1719 North Broad Street 
Philadelphia, PA 19122 
(215) 787-8975

Court-appointed Counsel for 
Petitioner



(0

TABLE OF CONTENTS

Page
OPINIONS B E L O W ........................................................................1
J U R IS D IC T IO N .. . . . . . .......... ....................  2
STATUTES INVOLVED .........................................   2
Q U ESTIO N  P R E S E N T E D ........................................................... 3
STA TEM EN T.................................................................................... 3
SUMMARY OF A R G U M EN T ................................................. 10
A R G U M E N T .................................................................................. 16

I. TH E Q U ESTIO N  O F W H ETH ER  A PRI­
VATE ATTORNEY, A PPO IN TED  TO 
REPR ESEN T AN IN D IG E N T  D E­
FE N D A N T  U N D ER  TH E CRIM INAL 
JU STIC E ACT, MAY BE SUED FO R  
COM M ON-LAW  M ALPRACTICE DOES 
N O T R EQ U IRE D EC ISIO N  U N D ER  
FED ER A L COM M ON LAW   .................16
A. Both the Legislative History and Opera­

tional Structure of the Criminal Justice Act 
Manifest an Intent to Keep Appointed 
Counsel Independent of any Association 
with or Control by the Federal Govern­
ment  ........................................................................ 17

B. The United States Courts of Appeals Have 
Been Unanimous in Concluding That Nei­
ther Federal nor State Court-Appointed 
Counsel are Government Officers, Gov­
ernment Employees or Act Under Color of
Government A uthority ..............................................22

C. No Substantial Rights or Duties of the 
United States Hinge on the Outcome of this 
State Litigation Between Private Parties........ .. 25



(ii)

II. FE D E R A L  COM M ON LAW  A FFO RD S 
NO IM M UNITY TO A PRIVATE AT­
TORNEY W H OSE A PPO IN TM EN T AND 
C O M PEN SA TIO N  BY TH E F E D ­
ERAL G O V ERN M ENT ARE IN T E N D E D  
SOLELY F O R  TH E PRESERVATION O F 
TH E CO N STITU TIO N A L R IG H TS OF 
THE CRIM INAL D E F E N D A N T ............................. 31
A. There is Neither a Common-Law History 

of Immunity for Private Counsel nor a 
Legislative Intent to Grant Such by Virtue 
of Appointment Under the Criminal Justice
A c t ................................................................................. 33

B. Consideration of the Interests of the De­
fendant, the Government and the Ap­
pointed Counsel Reveals That All Three 
Would be Best Served by Permitting Civil
A ccountability ....................      39
1. The Injured Party’s Legal Right to

R edress................................................................... 40
2. The Public’s Interest in Zealous Ad­

vocates Who Conscientiously and Re­
sponsibly Perform Their Public
D u ties ..................................................................... 43

3. The Interests of Appointed C ounsel............... 49
III. A FFO R D IN G  A FED ER A L COMMON- 

LAW  IM M UNITY TO ATTORNEYS 
A PPO IN TED  TO R EPRESEN T IND I­
GENTS, W H ERE NO SUCH IM M UNITY 
IS A FFO R D E D  R ETA IN ED  COUNSEL,
W OULD CO N STITU TE A CLASSIFICA­
TIO N BASED SOLELY ON W EALTH 
PROHIBITED BY THE EQ U A L PRO­
TECTIO N  COM PONENT OF TH E F IFT H  
A M E N D M E N T .. . . . . . ..................................................51



(iii)

A. The Grant of Absolute Immunity Estab­
lishes a Lower Standard of Care for Ap­
pointed Counsel Than For Retained 
C ounsel.......... ........................................................... 52

B. The Right to Compensatory Relief for the 
Deprivation of Liberty Suffered as a Con­
sequence of Incompetent Counsel Cannot 
Be Made to Depend Solely on the Financial
Status of the Injured P arty .....................................  54

C. No Rational Basis Exists For Having the 
Grant of Immunity to Defense Counsel 
Depend Upon the Source of Compensation . . . .  56

C O N C L U S IO N ........................................................................... 59
A PPEN D IX  A -(Pertinen t portions of Criminal 

Justice Act and the Western District 
of Pennsylvania Plan promulgated 
thereunder).................................................... • 1 a

A PPEN D IX  B - (Indictment and docket sheet in 
United States v. Ferri, Crim. No. 74-
277, W.D. Pa.)................................................. lb



TABLE OF AUTHORITIES

CASES: Page
Anders v. California, 386 U.S. 738 (1967)...........................  54
Argersinger v. Hamlin, 407 U.S. 25 (1 9 7 2 ) ...............40,46,47
Bank o f America Nat. Trust & Sav. Ass’n v. Parnell,

352 U.S. 29 (1 9 5 6 ) ............................. ................................. 28
Barnes v. Dorsey, 480 F .2d 1057 (8th Cir. 1 9 7 3 )............ .. 23
Barr v. Matteo, 360 U.S. 564 (1959)...................................... 49
Barto v. Felix, 378 A.2d 927 (Pa. Super. 1977)................... 43
Beasley v. United States, 491 F.2d 687 (6th Cir. 1974). ,42n.
Biddinger v. Commissioner o f Police, 245 U.S. 128

(1 9 1 7 ).........................................................................................  7
Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388 (1 9 7 1 ).........................................................22,55
Boddie v. Connecticut, 401 U.S. 371 (1 9 7 1 ) ...... ................54
Bounds v. Smith, 430 U.S. 817 (1 9 7 7 ) ........ ........................  55
Bradley v. Fisher, 80 U.S. (13 Wall.) 335 ( 1 8 7 2 ) . . . . . . . . .  34
Brown v. Joseph, 473 F.2d 1046 (3d Cir. 1972), cert.

denied, 412 U.S. 950 (1 9 7 3 )........................................... .. 24
Butz v. Economou, 438 U .S .___ , 98 S.Ct. 2894

(1 9 7 8 ).................................    9,16,31,32,33,34,36
Cammerv. United States, 350 U.S. 399 (1 9 5 6 ) ................  27
Clearfield Trust Co. v. United States, 318 U.S. 363

(1 9 4 3 ).................................................................................  29,30
Cleveland v. Cromwell, 110 App.Div. 82, 96 N.Y.S.

475 (1 9 0 5 )...............................................................................  36
Conley v. Gibson, 355 U.S. 41 (1957)..................................4n.
Eccles v. Stephenson, 6 Dy. 517 (1814). .................................. 36
Erie R. Co. v. Tompkins, 304 U.S. 64 (1 9 3 8 ) ............... 29,51
Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1 972)........  23

(iv)



(V)

Ferri v. Ackerman, 
(1 9 7 8 ).................

Ferri v. Rossetti, __

Pa 394 A.2d 553
passim

Pa 396 A.2d 1193
(1 9 7 9 ).....................................................................................  5n.

Ferri v. United States, 546 F.2d 416 (3d. Cir. 1 9 7 6 ).......... 6
Floyd v. Barker, 12 Co.Rep. 23, 77 Eng. Rep. 1305

(K.B. 1 6 0 8 )........................... .................... ........................ .... 34
French v. Corrigan, 432 F.2d 1211 (7th Cir. 1970),

cert, denied., 401 U.S. 915 (1 9 7 1 ).........................23,24,26
Gideon v. Wainwright, 372 U.S. 335 (1 9 6 3 ) ............  17,40,52
Glona v. American Guarantee Co., 391 U.S. 73

(1 9 6 8 )........................................................................    55
Gregoire v. Biddle, 111 F.2d 579 (2d Cir. 1949),

cert, denied, 339 U.S. 949 (1950)........................... .... .43,44
Griffin v. Illinois, 351 U.S. 12 (1 9 5 6 )...................................  52
Griffith v. Slinkard, 146 Ind. 117, 44 N.E. 1001 (1896).. 34 
Hatch v. Lewis, 175 Eng. Rep. 1145 (N.P. 1861)...............36
Heydon’s Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 (Ex.

1584)..................................................................    39
Hill v. Lewis, 361 F.Supp. 813 (E.D. Ark. 1 9 7 3 )............... 35
Housand v. Heiman,____F .2 d _____(2d Cir. March

20, 1979), Slip op. at 1827...........................23,26,33n.,35,56
Howard v. Lyons, 360 U.S. 593 (1959)........ .. 8,10,16,25
Imbler v. Pachtman, 424 U.S. 409 (1976) . .9,12,28,31,34,44
In re Griffiths, 413 U.S. 717 (1973)................................... 27,28
James v. Strange, 407 U.S. 128 (1972).................................  58
Johnson v. Avery, 393 U.S. 483 (1969)...................................55
Johnson v. Zerbst, 304 U.S. 458 (1 9 3 8 ) ..................... 17,37,40
Jones v. Hadican, 552 F.2d 249 (8th Cir.), cert.

denied, 431 U.S. 941 (1 9 7 7 )...................................... 22,26,55
Jones v. Warlick, 364 F.2d 828 (4th Cir. 1966) ______9,24n.



(vi)

Lake County Estates, Inc. v. Tahoe Regional
Planning Agency, ____ U.S. ___ , 99 S. Ct.
1171 (1979)............................................................................32n.

La more v. Laughlin, 159 F.2d 463 (D.C. Cir. 1947). 4 2 a ,51
Levy v. Louisiana, 391 U.S. 68 (1 9 6 8 )..................... ............  55
Lindsey v. Normet, 405 U.S. 56 (1972).......................15,55,58
Link v. Wabash R  Co., 370 U.S. 626 (1 9 6 2 )................. 42
Louisiana ex rel Purkey v. Ciolino, 393 F.Supp. 102

(E.D.La. 1 9 7 5 )....................................................................... 35
Mallone v. Sherman, 49 N.Y.Super. 530 (1 8 8 3 )................. 36
Martinez v. Schrock, 430 U.S. 920 (1977)...........................  29
Massachusetts v. Westcott, 431 U.S. 322 (1977)................ 3n.
Me Mann v. Richardson, 397 U.S. 759 (1970).................40,52
Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977)................... 24
Minns v. Paul, 542 F.2d 899 (4th Cir. 1976), cert.

denied, 429 U.S. 1102 (1 9 7 7 )..........23n.,24n.,34,36,46,57
Miree v. DeKalb County, 433 U.S. 25 (1977) . . .  11,17,29,30
Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968)___23
O’Brien v. Colbath, 465 F .2d 358 (5th Cir. 1 9 7 2 ) ... .  23,24n.
O’Connor v. Donaldson, 422 U.S. 563 (1975).....................  32
Ortwein v. Schwab, 410 U.S. 656 (1 9 7 3 ) .............................  55
Page v. Sharpe, 487 F.2d 567 (1st Cir. 1 9 7 3 ).....................  23
Pierson v. Ray, 386 U.S. 547 (1 9 6 7 ).....................  31,39,43,44
Pitt v. Yaldin, 4 Burr 2060, 98 Eng. Rep. 74 (K.B.

1867).........................................................................................  36
Procunier v. Navarette, 434 U.S. 555 (1 9 7 8 )................. 32
Powell v. Alabama, 287 U.S. 45 (1 9 3 2 ) .........................  40,52
Randall v. Brigham, 74 U.S. (7 Wall.) 523 (1869)............  34
Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1 9 7 8 ).. 23n.,

24,34,35,36,46

Rondell v. Worsley, 1 A.C. 191 (House of Lords 1 9 6 9 )... 51



(vii)

Sanchez v. Murphy, 385 F.Supp. 1362 (D.Nev. 1974) . . .  35
Scheuerv. Rhodes, 416 U.S. 232 (1974)................... 4n.,32,34
Scott v. Illinois,____U .S ._____, 99 C.Ct. 1158 (1979) . .  47
Scott v. Stansjield, L.R. 3 Ex. 220 (1 8 6 8 ) ...........................  43
Shelley v. Kraemer, 334 U.S. 1 (1 9 4 8 ) ................................. 51
Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978)................... 23
Spring v. Constantino, 168 Conn. 299, 362 A.2d 871

(1 9 7 5 )..................... ............................................. . . . . .2 6 ,3 5 ,4 3
Stephens v. White, 2 Va. 203 (1 7 9 6 ) .....................................  36
Stump v. Sparkman, 435 U.S. 349 (1 9 7 8 )...........................  44
Sullens v. Carroll, 446 F.2d 1392 (5th Cir. 1 9 7 1 ) ........  9,22,

24n.,35n.
Szijarto v. Legeman, 466 F.2d 864 (9th Cir. 1 9 7 2 ) ..........  23
Tasby v. Peek, 396 F.Supp. 952 (W .D. Ark. 1 9 7 5 ) ..........  35
Tenney v. Brandhove, 341 U.S. 367 (1 9 5 1 ).........................  38
Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972)............... 23
United States v. Askins, 251 F .2d 909 (D.C. Cir. 1 9 5 8 ) . ..  7 
United States v. Kenner, 354 F.2d 780 (2d Cir. 1 9 6 6 ) . . . . .  7 
United States v. Kras, 409 U.S. 434 (1973).........................  55
United States v. Malizia, 437 F.Supp. 952 (S.D.N.Y.

1977), ajfd, 573 F.2d 1298 (2d Cir. 1 9 7 8 )................... 41
United States v. Michelson, 559 F,2d 567 (9th Cir. 1977) .41
United States v. Robinson, 553 F.2d 429 (5th Cir.

1977), cert, denied, 434 U.S. 1016 (1 9 7 8 )..................... 20
United States v. Tate, 419 F.2d 131 (6th Cir. 1969)............ 37
United States v. Waldin, 253 F.2d 555 (3d Cir. 1958) . . . .  7
United States ex rel Wood v. Blacker, 335 F.Supp. 43

(D.N.J. 1 9 7 1 ) ......................................................................... 35
Vance v. Robinson, 292 F.Supp. 786 (W .D.N.C. 1968) 26,35 
Walker v. Kruse, 484 F.2d 802 (7th Cir. 1973)................... 35
Wallis v. Pan American Petroleum Corp., 384 U.S. 63 

(1966) 29



(viii)

Wood v. Strickland, 420 U.S. 308 (1975).........................  32,36
Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), affd, 275

U.S. 503 (1 9 2 7 ) ........................................................................34

Federal Constitution, Statutes and Regulations:
United States Constitution, Amendment V ...................... passim
United States Constitution, Amendment V I ................... passim
United States Constitution, Amendment XIV ............... passim
Civil Rights Act of 1871, 42 U.S.C. § 1983 . . . . . . . .1 1 ,2 3 ,3 8
Criminal Justice Act of 1964 (as amended), 18 U.S.C.

§3006 A ...........................    passim
Federal Tort Claims Act, 28 U.S.C. § 1346(b).. . . .  .11,22,55
Social Security Act of 1965, Medicaid Program (Title

XIX), 42 U.S.C. §1396-1396 K ........................................27
Criminal Justice Act Plan for the Western District of

Pennsylvania ...............    passim
Legislative Material:
110 Cong Rec. 445 (January 15, 1964) (Remarks of

Congressman M oore)........ ..............................   19,38
110 Cong Rec. 448 (January 15, 1964) (Remarks of

Congressman Willis).............................     19
110 Cong Rec. 455 (January 15, 1964) (Remarks of

Congressman M cCulloch)....................................................  19
110 Cong Rec. 18558 (August 7, 1964) (Remarks of

Congressman M oore)............................................................... 19
H .R  Rep. No. 1546, 91 st Cong., 2d. Sess. reprinted in

1970 U.S. Code Cong. & Ad. News 3982 ..........  10,18,20
Hearings before the Subcommittee on Constitutional 

Rights of the Senate Judiciary Committee on 
S.1461, 91st Cong., 1st Session (1 9 6 9 ) ................. .. 19,21

Reports:
Administrative Office of the United States Courts,

Annual Report o f the Director (1 9 7 7 ) ................. 21n.,47n.



(ix)

American Bar Association Project of Standards for 
Criminal Justice, Standards Relating to Providing 
Defense Services (1968)  .............. 36n.,37,45,48,58n.

American Bar Association Project on Standards for 
Criminal Justice, Standards Relating to the De­
fense Function (1 9 7 1 ) ..................................................... 27,44

Special Committee of the Association of the Bar of the 
City of New York and the National Legal Aid and 
Defender Association, Equal Justice for the Ac­
cused, (1959)...............................   18

Books, Articles, Comments and Notes:
Tribe, American Constitutional Law, (1 9 7 8 )...... ................54
Bazelon, The Defective Assistance of Counsel, 42

U. Cinn. L.Rev. 1 (1 9 7 3 )......................................... .... 41,49
Bines, Remedying Ineffective Representation in 

Criminal Cases: Departuresfrom Habeas Corpus,
59 Va. L.Rev. 927 (1973).............................................. 42,44

Burger, Counsel for the Prosecution and the Defense 
- Their Roles Under the Minimum Standards, 8 
Amer.Crim.L.Q. 1 (1969)...........................................27,37,53

Burger, The Special Skills o f Advocacy, 42 Fordham
L. Rev. 227 9 1 9 7 3 ) ........................................... .. .. .40,47,58

Mallen, The Court-Appointed La wyerandLegal Mal­
practice - Liability or Immunity, 14 Amer. Crim.
L. Rev. 59 (1976)..........................................................  26

The Supreme Court, 1977 Terms, 92 Harv. L.Rev. 1
(1 9 7 8 ).................................................................................... 32,39

Note, Providing Counsel for the Indigent Accused:
The Criminal Justice Act, 12 Amer. Crim. L. Rev.
789 (1 9 7 5 )....................................................................... 41,58n.

Note, Minns v. Paul: Section 1983 Liability o f State- 
Supplied Defense Attorneys, 63 Va. L.Rev. 607 
(1 9 7 7 ).....................................................................................35 n.

Note, 52 Temp. L.Q. 102 (1979)........................     32
Miscellaneous:
ABA Code of Professional Responsibility (1970) ..  14,44,47,

49,50,53



IN THE

Supreme Court of tfjeUmteb £>tate*
OCTOBER TERM, 1978

No. 78-5981

FRA NCIS RICK FERRI,
Petitioner,

D A N IEL ACKERM AN,
Respondent.

ON WRIT OF CERTIORARI TO 
THE SUPREME COURT OF PENNSYLVANIA

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the Westmoreland County Court of 
Common Pleas (A. 41-45) is unreported. The per curiam 
affirmance order of the Pennsylvania Superior Court (A. 
46) is not yet reported in the official reports but appears in 
the unofficial reports at 384 A.2d 995 (1978). The opinion of 
the Pennsylvania Supreme Court (A. 48-57) is not yet 
reported in the official reports but appears in the unofficial 
reports at 394 A.2d 553 (1978).

1



2

JURISDICTION

The final judgment of the Pennsylvania Supreme Court 
sustaining respondent’s assertion of an absolute immunity by 
virtue of commission held or authority exercised under the 
United States, and affirming the dismissal of petitioner’s 
complaint, was entered on November 18, 1978. A Petition 
for Certiorari was filed on January 2, 1979, and certiorari 
was granted on February 21, 1979. The jurisdiction of this 
Court to review this case by writ of certiorari is conferred by 
28 U.S.C. §1257(3).

STATUTES INVOLVED

Rule 44 of the Federal Rules of Criminal procedure pro­
vides in pertinent part:

a. Right to Assigned Counsel. Every defendant who is 
unable to obtain counsel shall be entitled to have 
counsel assigned to represent him at every stage of the 
proceedings. . . .

b. Assignment Procedure. The procedures for imple­
menting the right set out in subdivision (a) shall be 
those provided by law and by local rules of court 
established pursuant thereto.

The Criminal Justice Act of 1964, Pub.L.No. 88-455, 
§2, 78 Stat. 552 (18 U.S.C. §3006A), as amended, is set 
forth in pertinent part in Appendix A.

The Criminal Justice Act Plan for the United States 
District Court for the Western District of Pennsylvania, 
adopted pursuant to the direction of 18 U.S.C. §3006A(a), 
also is set forth in pertinent part in Appendix A.

2



3

QUESTION PRESENTED

Whether a private attorney, appointed under the Criminal 
Justice Act (18 U.S.C. §3006A) as defense counsel in a 
federal criminal prosecution, whose neglect directly results 
in defendant’s conviction and sentencing on three counts on 
which the statute of limitations had run, enjoys an absolute 
federal common-law immunity from a common-law action 
brought by his former client in a state court

STATEMENT

On August 28, 1974, an indictment was filed against 
Francis Rick Ferri, the petitioner herein, in the United States 
District Court for the Western District of Pennsylvania 
(Appendix B).1 Among the charges contained in the multi­
count indictment were three allegations of Internal Revenue 
Code firearms violations for which the three-year statute of *

‘Instead of attaching a copy of the indictment and sentencing order to 
his complaint in the subsequent malpractice action, Ferri, unfamiliar 
with the rules of judicial notice, merely directed the state trial court to 
“ [t]he complete record(s) of Criminal [sic] Number 74-277, U.S.D. 
Court, for the Western District of Pennsylvania, which is Plaintiff [sic] 
issue of negligence herein” (A. 10). Petitioner now asks that this Court as 
well judicially notice these public documents. See Massachusetts v. 
Westcott, 431 U.S. 322, 323 n.2(1977) and the cases cited therein. For 
the convenience of the Court, and with the approval and consent of 
counsel for respondent, copies of the indictment and the docket sheet 
reflecting the sentence imposed are affixed to this brief as Appendix B.

3



4

limitations had run (A. 31).2
In December, 1974, Ferri appeared in the federal district 

court, without counsel, to answer the indictment (A. 7). 
Pursuant to the mandate, and in accordance with the 
procedures, of the Criminal Justice Act of 1964 and the local 
rules promulgated thereunder, the trial judge appointed 
respondent Daniel Ackerman, a member of the Pennsyl­
vania Bar, to represent the defendant at trial (A. 7,8,26). At 
no time during the pretrial proceedings, the course of the trial 
or thereafter did Ackerman assert a statute of limitations 
defense on Ferri’s behalf (A. 31). Accordingly, the guilty 
verdicts returned by the jury on March 6,1975, included the 
three Internal Revenue Code violations as well as a con­
spiracy (18 U.S.C. §371) to commit and the completion of a 
substantive offense under 18 U.S.C. §844(i) (A. 9,34;

2Because of the posture of the case—plaintiffs action was dismissed 
pursuant to defendant Ackerman’s demurrer—this Court is bound, of 
course, to accept the allegations contained in Ferri’s pleadings as true 
and to construe them in the light most favorable to him. Scheuer v. 
Rhodes, 416 U.S. 232,236 (1974); Conley v. Gibson, 355 U.S. 41,45 
(1957). Petitioner nonetheless invites the Court’s attention to the 
record herein as proof of the substantiality of his contentions. Counts 
Seven, Eight and Nine of the Indietment charge violations of the various 
subdivisions of 26 U.S.C. § §5861 and 5871(A.34; Appendix B).The 
isolated incident claimed by the Government as the basis for these 
charges allegedly took place in its entirety on August 26, 1971 
(Appendix B). Despite the unambiguous applicability of a three-year 
statute of limitations for such Internal Revenue Code offenses, see 26 
U.S.C. §6531, the indictment was not filed until Wednesday, August 28, 
1974 (Appendix B).

Because Counts One and Two charge violations of the Criminal Code, 
they are subject only to a five-year statute of limitations, 18 U.S.C. 
§ 3282, and prosecution thereunder was not time barred. Counts Three, 
Four, Five and Six do not name Ferri.

The complaint, as amended, therefore, only charges Ackerman with 
malpractice in connection with Counts Seven through Nine.

4



5

Appendix B). A ten-year sentence was imposed on each of 
the Internal Revenue Code counts to run concurrent with 
each other but consecutive to the maximum twenty-year 
sentence imposed on the §844(i) substantive count (Ap­
pendix B).3 The conspiracy charge drew a five-year sentence 
to run concurrently with the twenty-year sentence.

Shortly after the conviction, Ackerman ceased his repre­
sentation of Ferri (A. 9),4 and new counsel pursued an 
appeal to the United States Court of Appeals for the Third 
Circuit Apparently during the course of his examination of 
the record, appellate counsel discovered the statute of 
limitations bar to the counts under the Internal Revenue 
Code. On appeal, therefore, counsel contended that the 
convictions thereunder were invalid (A. 38-39).

While that appeal was pending, Ferri commenced the 
instant action pro se in the Pennsylvania Court of Common 
Pleas in Union County (A. 25). The complaint, filed 
March 4, 1976, was styled “A Complaint in Negligence” 
and contained sixty-eight allegations of Ackerman’s inef­
fective representation (A. 6-22). Defendant Ackerman 
responded with a series of preliminary objections including a 
motion for change of venue (A. 24-27). Most important,

3It is this ten-year differential which is alleged to be attributable to 
defendant Ackerman. In a contemporaneously filed malpractice action 
against prior counsel, Ferri charges that files lost by that attorney, 
Dominick Rossetti, contained governmental promises of immunity from 
the subsequent indictment and conviction under § 844(i). A petition for 
certiorari in that action, Ferri v. Rossetti, 78-6153, is currently pending 
before this Court [reported below at 396 A.2d 1193 (1979)].

4The relationship between Ferri and Ackerman was never a good one. 
During the course of the trial, Ferri complained continuously about the 
quality of counsel in memoranda, letters and petitions to the district 
judge. (A. 9).

5



6

defendant sought dismissal of the complaint for its failure to 
state a cause of action, asserting that, by virtue of his 
appointment under the Criminal Justice Act, “defendant was 
and is immune from any civil liability, or from any other 
liability arising from his conduct of the defense of Francis 
Ferri” (A  26).

The motion for venue change was granted and the action 
was transferred to Westmoreland County. By the time of the 
transfer, however, plaintiff had twice amended his com­
plaint. The first amendment, filed April 2, 1976, sup­
plemented the claim of negligence with two additional 
common-law claims, one sounding in malpractice and one, 
relying on a “ third party beneficiary theory,” alleging breach 
of contract (A. 28). The second amendment, filed August 
18,1976, simply “ reservefd] the right to amend the original 
complaint as factual data surface regarding the Defendant’s 
actions in the complained of Criminal Proceedings” (R - 
“PlaintifPs Amended Complaint and Petition to Proceed 
with a Jury Trial”). Such “data” were not long in surfacing.

On October 15,1976, the United States Court of Appeals 
affirmed Ferri’s conviction by order. Ferri v. United States, 
546 F.2d 416 (3d Cir. 1976).5 The unpublished judgment 
order (A. 38-40) rejected Ferri’s eight allegations of reversi­
ble error virtually without comment. On each ground, how­
ever, the court included a footnote containing citations of 
authority for its disposition of the claim (A. 39). The footnote 
following the rejection of the statute of limitations claim cited

The unpublished order is stamped “Filed November 3, 1976”. The 
substance of the order, however, was known to petitioner in mid-October 
as evidenced by his “traversal” brief (A. 30-33). Furthermore, the report 
of the order in the Federal Reporter lists the filing date as October 15. 
Petitioner knows of no reason for this discrepancy.

6



7

three federal circuit court decisions. Each of these cases held 
that a statute of limitations defense will be deemed to have 
been forfeited if not raised before or during the trial ( A. 39 ). 
See United States v. Askins, 251 F.2d 909, 913 (D.C. Cir. 
1958); United States v. Waldin, 253 F.2d551,558-559 (3d 
Cir. 1958); United States v. Kenner, 354 F.2d780, 785 (2d 
Cir. 1965), cert, denied, 383 U.S. 958 (1966). In addition, 
the footnote quoted from Biddinger v. Commissioner o f  
Police, 245 U.S. 128, 135 (1917), in which this Court held 
that “ [t]he statute of limitations is a defense and must be 
asserted on the trial by the defendant. . . .”

Within three days of the affirmance by the Third Circuit, 
Ferri filed a document which he termed a “Traversal Brief of 
Plaintiff’. Although Ackerman was later to argue to the 
Pennsylvania Supreme Court that the contents of this 
document were not properly regarded as an amended 
pleading, the supreme court, in its opinion, rejected this 
contention: “ In view of the fact that these pleadings were 
filed without the benefit of counsel, and the question was 
clearly raised in the court below, we decline to dispose of the 
issue based upon this procedural irregularity.” (A. 49 n,l).

In this “ traversal” , Ferri raised for the first time the issue 
which had just come to his attention — the waiver of the 
statute of limitations by counsel’s failure to raise it during the 
course of the trial. (A. 31 n.l). The “ traversal” also dis­
pensed with the earlier sixty-eight allegations of inef­
fective representation and stated plaintiffs intent to con­
fine his complaint to this “ specific failure of the defendant” 
(A. 30). While alleging a deprivation of his constitutional 
rights under several of the Amendments to the United States 
Constitution [including the Fifth, Sixth6 and Equal P ro

6Ferri’s contention was that Ackerman’s failure to invoke the statute of 
limitations satisfied the standard of the “mockery, sham and farce” test. 
(A. 33).

7



8

tection Clause of the Fourteenth], Ferri continued to rely 
exclusively on state common law — malpractice and negli­
gence — as providing the remedy for such unconstitutional 
conduct (A. 31,3 3).7 Attached as exhibits to the “ traversal” 
were portions of the briefs before the Third Circuit.

On January 31,1977, the Westmoreland County Court of 
Common Pleas, sitting en banc, sustained defendant 
Ackerman’s claim of absolute immunity and, accordingly, 
dismissed plaintiffs complaint (A. 41-45). After an order 
without opinion by the Pennsylvania Superior Court 
(A. 46), the Pennsylvania Supreme Court granted per­
mission to appeal. Both Ferri, who had continued to proceed 
pro se, and counsel for Ackerman submitted their briefs 
without oral argument on September 26, 1978, and the 
supreme court handed down its decision on November 18, 
1978.

Writing for four members of the court, Justice Nix treated 
the case as raising only a federal question. Citing Howard v. 
Lyons, 360 U.S. 593 (1959), he noted:

“ Since we are here concerned with an asserted immunity 
protecting a participant in a federal legal proceeding, we 
are required to look to the federal law to determine 
whether it exists and if it does, its nature and scope” 
(A. 49).8
Identifying federal law as the source of the answer to the 

immunity question, the majority directed its attention to a

7In the “traversal”,Ferri also noted that no petition for a writ of habeas 
corpus pursuant to 28 U.S.C. §2255 had yet been filed. (A. 32).

8Indeed, true to its view of the case as raising solely a federal question, 
the majority’s opinion neither cites nor refers to any Pennsylvania 
decision or state common-law doctrine. It should be noted that this 
decision does not involve an incorporation of federal law into state law. 
Justice Nix’s decision makes clear that the court believed resort to 
federal law was “required”. (A. 49).

8



9

series of United States Supreme Court decisions establishing 
the absolute immunity of judges for all acts allegedly 
performed within the scope of their official duties(A.50-53). 
The prudential concerns which prompted such an immunity 
were, as the Pennsylvania Supreme Court saw it, not limited 
to judges. Noting that “ [t]he common law also recognized a 
need to extend this protection to other participants «n judicial 
proceedings,” the majority referred to the extension of 
absolute immunity to prosecutors by the United States 
Supreme Court [see Imbler v. Pachtman, 424 U.S. 409 
(1976)], and to federal defense counsel by two summary 
decisions of the United States Courts of Appeals [see 
Sullens v. Carroll, 446 F.2d 1392 (5th Cir. 1971); Jones v. 
Warlick, 364 F.2d 828 (4th Cir. 1966) (per curiam)] 
(A. 52-54).To support this broadbrush grouping of judges, 
prosecutors and defense counsel, the court concluded its 
opinion with a quotation from Butz v. Economou, 438 U.S. 
___ , 98 S.Ct. 2894, 2913 (1978):

“Absolute immunity is thus necessary to assure that 
judges, advocates, and witnesses can perform their 
respective functions without harassment or intimi­
dation.”
The four man majority in the Pennsylvania Supreme 

Court was joined by a fifth who concurred in the result 
without explanation (A. 55). Justice Roberts filed a dissent 
on behalf of two members of the court arguing that (i) 
appointed counsel need no more discretion or freedom than 
do privately-retained counsel; (ii) defense counsel appointed 
under the Criminal Justice Act do not act under color of 
federal law; and (iii) serious equal protection problems 
would be posed by the disparate treatment of retained and 
appointed counsel (A. 56-57).

9



10

On January 2, 1979, Ferri filed a petition for a writ of 
certiorari pro se. On February 21, the petition was granted 
and on March 26, counsel for Ferri was appointed by this 
Court. This is the first time in the course of this litigation that 
plaintiff-petitioner has had the benefit of counsel.

S U M M A R Y  O F  A R G U M E N T  

I

In Howard v. Lyons, 360 U.S. 593 (1959), this Court 
concluded that, in a state common-law action, the immunity 
of “officers of the Federal Government” is a question to be 
judged by federal standards. The Pennsylvania Supreme 
Court erroneously believed itself constrained by Howard to 
decide the immunity of a private attorney, appointed under 
the Criminal Justice Act, by resort to applicable federal 
standards. Counsel appointed under the Act do not, simply 
by virtue of federal compensation, become officers of the 
federal government. The legislative history reveals a con­
gressional desire to compensate, not to federalize, the 
provision of legal assistance for indigents. Indeed, the 
deletion in the original Act of provisions for a federal 
defender was explicitly attributed to a desire to ensure the 
independence of criminal defense counsel. As explained in 
the House Report to the 1970 Amendments, “ (t]he provision 
was deleted due to doubts raised. . . about the propriety of 
placing the defense of criminal suspects in the control of the 
Government since the Government [is] also responsible for 
prosecutions.” H ,R  Rep. No. 1546, 91st Cong., 2d Sess.
(1970). The private bar segment of the Criminal Justice

10



Act, on the other hand, has always been viewed as inde­
pendent of any governmental control. This has prompted the 
various United States Courts of Appeals to conclude with 
unamimity that appointed counsel are neither federal 
“ employees” for purposes of the Federal Tort Claims Act 
nor actors “under color of law” for suits brought directly 
under the Constitution. In a similar vein, the view that a 
state-appointed counsel acts “under color of law” within the 
meaning of 42 U.S.C. § 1983 has been uniformly rejected. 
The common theme of these decisions has been a view of 
court-appointed counsel as no less private by virtue of 
government compensation than their retained counterparts.

The present litigation is purely between private parties and 
does not touch the rights and duties of the United States. 
Likewise, it will have no direct effect upon the United States 
Treasury. As this Court recently recognized in Miree v. 
DeKalb County, 433 U.S. 25 (1977), the government’s 
interest in such state common-law actions is far too specu­
lative and far too remote to justify the application of federal 
common law. The issue whether to displace state law on a 
matter such as this is primarily a decision for Congress, 
Congress has taken no such action here. Quite to the 
contrary, despite the acknowledged existence of a common- 
law history of malpractice actions against lawyers by 
dissatisfied clients, not a single congressman urged immunity 
for appointed counsel.

II

The Pennsylvania Supreme Court compounded its er­
roneous decision to focus on federal standards by mis­
construing what those standards are. Federal officials who



12

seek absolute exemption from personal liability must bear 
the burden of showing that public policy requires an ex­
emption of that scope. This Court has, in recent years, 
accorded absolute common-law immunity to only two 
classes of government officials: those performing an ad­
judicatory role, and those performing a prosecutorial role. 
The decision below extended absolute immunity to court- 
appointed counsel solely by virtue of his participation in 
judicial proceedings. This type of approach, focusing on the 
location of the officer rather than on the characteristics of his 
duties, has been criticized by this Court on more than one 
occasion as “overly simplistic.” Imbler v. Pachtman, 424 
U.S. 409, 421 (1976). As Imbler indicates, the immunity of 
a federal officer must be “predicated upon a considered 
inquiry into the immunity historically accorded the relevant 
official at common law and the interests behind it.” 424 U. S. 
at 421. There is simply no history of common-law immunity 
for appointed counsel. In part, this is due to the recent vintage 
of the recognition of the government’s obligation to provide 
counsel for the indigent defendants. Yet as this Court has 
often recognized, the paucity of common-law history may be 
remedied by analogizing the functions of the “new office” to 
those of an office existing at common law. The issue for 
resolution, therefore, narrows to whether the functions of 
appointed counsel more closely parallel those of judges and 
prosecutors - traditionally accorded immunity at common 
law - or those of private counsel who enjoyed no such 
immunity. Merely to pose the question is to suggest the 
answer. Counsel appointed under the Criminal Justice Act 
owes his primary obligation to the defendant and not to the 
court or the public at large. His duties, burdens and 
responsibilities are exactly the same as those of private, 
retained counsel. The Act’s purpose was to create a system

12



13

of compensated appointed counsel, independent of govern­
ment control and free to perform their functions in as nearly 
as possible the same manner as if privately retained. 
Congress did not thereby create a new function, it merely 
made available an already existing one to those without 
financial means.

Immunity is not granted for the benefit of the erring 
official. It is, instead, intended solely for the benefit of the 
public interest. Absolute immunity is afforded judges and 
prosecutors in order to insure that their loyalties are not 
divided between the imposed duty to the public and the 
natural instinct to protect oneself from suit. The key concern 
in these decisions has been the tension or conflict that exists 
between the public need and the fear of suit. An appointed 
counsel, on the other hand, is not a servant of the public. His 
duty is undivided. He serves only the client for whose 
representation he has been appointed. It is difficult to see, 
therefore, how potential liability for failing to provide a 
competent defense divides a lawyer’s loyalties between 
himself and the person he is supposed to defend. Quite to the 
contrary, it is the grant of immunity which would raise the 
spectre of divided loyalties. At the very same time that he is 
representing the indigent pursuant to his appointment, the 
appointee is maintaining a private practice. The private 
practice, of course, is potentially a source of a common-law 
malpractice action. There has always been the concern that 
the busy lawyer who receives an appointment will render a 
perfunctory service at best. How much more serious is this 
concern, however, where only the paying portion of his 
practice may subject the attorney to malpractice liability. It 
calls for little speculation to predict that a lawyer, hard 
pressed for time, will be likely to devote an inappropriate 
percentage of his energies to the portion of his practice which

13



14

carries with it the possibility of liability for substandard 
work. The professional duty to the indigent is here at odds 
with the natural instinct to protect oneself from suit. 
Ironically, therefore, the very tension which the grant of 
immunity to judges and prosecutors was adopted to alleviate 
would instead be promoted by a similar grant of immunity to 
a court-appointed counsel.

I ll

American common law has never accorded immunity to 
retained criminal defense counsel. The creation and applica­
tion of a different rule for those paid to represent indigent 
criminal defendants would result in the denial, solely on the 
basis of poverty, of two inherently fundamental rights: the 
right to the effective assistance of counsel and the right of 
access to the courts. The first of these is prophylactic. The 
second is compensatory.

Too many important constitutional rights may be lost by 
the actions of one’s attorney to demand anything but an 
uncompromising, competent lawyer with undivided loyalty 
to his client. A counsel without accountability poses far 
greater dangers of ineffectiveness. It is just such a concern 
which prompted D.R.6-102 of the ABA Code of Profes­
sional Responsibility [prohibiting a lawyer from entering 
into contractual relationships “ to exonerate himself from or 
limit his liability to his client for his personal malpractice”]. 
A lawyer who handles the affairs of his clients properly has 
no need to limit his liability. The lawyer who fails to afford 
the appropriate standard of service, on the other hand, should 
not be permitted to escape accountability. ABA Code o f 
Professional Responsibility E.C. 6-6. Counsel for indigents

14



15

generally need an extra push to ensure that they pursue their 
client’s interests as zealously as would retained counsel. To 
fail to provide even the same push that is experienced by 
retained counsel contravenes the requirements of equal 
protection. The grant of absolute immunity would establish a 
lower standard of care for the poor man’s lawyer.

There is, of course, no constitutional right to sue for 
malpractice. Once such an action has been accorded by 
statute or common law, however, “ it cannot be granted to 
some litigants and capriciously or arbitrarily denied to others 
without violating the Equal Protection Clause.” Lindsey v. 
Normet, 405 U.S. 56, 77 (1972). Absolute immunity 
deprives an indigent of the only effective means of recovering 
for liberty lost by virtue of incompetent counsel. In contrast, 
the person with means to retain counsel is permitted free 
access to the courts for the identical injury. Assuredly, such 
classification requires some assertion of a compelling or at 
least significant governmental reason. Yet not even a rational 
basis justifying the distinction appears evident All of the 
arguments that have been pressed for the grant of absolute 
immunity apply with equal force to retained counsel. When 
the articulated justifications are swept aside as facade, all 
that remains is a fear that the indigent will be more litigious 
and more likely to press frivolous claims. Our Constitution 
prohibits such invidious generalizations and this Court ought 
not allow them to serve as the basis for a discriminatory 
common-law doctrine of immunity.

15



16

ARGUMENT

I.

THE QUESTION OF WHETHER A PRI­
VATE ATTORNEY, APPOINTED TO REP­
RESENT AN INDIGENT DEFENDANT 
UNDER THE CRIMINAL JUSTICE ACT, 
MAY BE SUED FOR COMMON-LAW 
MALPRACTICE DOES NOT REQUIRE 
DECISION UNDER FEDERAL COMMON 
LAW.

In Howard v. Lyons, 360 U.S. 593 (1959), this Court 
held that, in a state defamation action, the immunity of 
“ officers of the Federal Government, acting in the course of 
their duties” is a question to be judged by “ federal 
standards” formulated by the courts. Id. at 597. See also
Butz v. Economou, 438 U.S____ _ 98 S.Ct 2894, 2911 n.
34 (1978) [“ federal officials” sued for traditional remedies 
at state law for alleged transgressions should be entitled to a 
qualified federal common-law immunity]. The Pennsylvania 
Supreme Court believed itself constrained by Howard to 
decide the immunity of court-appointed counsel in federal 
criminal proceedings by resort to applicable federal 
standards.9 While it subsequently misconstrued what those 
standards are, see Point II, infra, its threshold error was in 
focusing on federal common-law standards at all. Counsel 
appointed under the Criminal Justice Act do not, by virtue of

’The question of what immunity a court-appointed counsel might 
enjoy under state law was not addressed by the court. Indeed, the 
Pennsylvania Supreme Court seems never to have passed on the question 
of the immunity of state court-appointed counsel from similar mal­
practice actions.

16



17

the federal compensation received, become “officers” of the 
federal government. Federally-imposed immunity has no 
more place in defining the scope of a court-appointed 
counsel’s immunity from state common-law malpractice and 
tort actions commenced in a state court than it would in a 
similar action against retained counsel. Where, as here, we 
deal neither with “ the authority of a federal officer” nor with 
the “ functioning of the Federal Government” , Howards 
mandate to look to federal common law is simply inap­
plicable. Since the litigation is between private parties and no 
substantial rights or duties of the United States hinge on its 
outcome the question of immunity does not require decision 
under federal common law. Miree v. DeKalb County, 433 
U.S. 25 (1977). The issue ofwhether to displace state law on 
an issue such as this is primarily a decision for Congress. Id. 
at 32. Congress has chosen not to do so in this case.10

A. Both the Legislative History and Operational 
Structure of the Criminal Justice Act Manifest 
an Intent to Keep Appointed Counsel In­
dependent of any Association with or Control 
by the Federal Government

At least since Johnson v. Zerbst, 304 U.S. 458 (1938), it 
has been clear that the Sixth Amendment requires appoint­
ment of counsel in federal criminal prosecutions. See also 
Gideonv. Wainwright, 372U.S. 335,348(1963)(Clark, J., 
concurring). Prior to the enactment of the Criminal Justice

10That the state court’s reliance on federal law was inappropriate does 
not, of course, deprive this Court of jurisdiction where, as here, a federal 
immunity was “ specially set up or claimed” under a statute, “or 
commission held or authority exercised under, the United States.” 28 
U.S.C. §1257(3).

17



18

Act of 1964, Pub.L.No. 88-455, §2, 78 Stat 552 (codified 
at 18 U.S.C. §3006A(1976)), the federal system, however, 
failed to compensate assigned counsel. This lack of financing 
resulted in lawyers disposing of their assignments with 
inappropriate dispatch and insufficient investigation. Report 
of the Special Committee of the Association of the Bar of the 
City of New York and the National Legal Aid and Defender 
Association, Equal Justice for the Accused 67 (1959). It 
was to remedy this situation that the Criminal Justice Act 
was enacted. That the Act was designed primarily to 
compensate and not to federalize the provision of legal 
assistance in federal criminal prosecutions is amply evinced 
by the legislative history.

The original bill passed by the Senate in 1963 had 
included a provision authorizing a federal public defender 
system as well as a system for compensating private 
appointed counsel. The House removed the public defender 
provision and the conference committee resolved differences 
in favor of the House position. As explained in the House 
Report to the 1970 Amendments, “ [t]he provision was 
deleted due to doubts raised in the House about the propriety 
of placing the defense of criminal suspects in the control of 
the Government since the Government was also responsible 
for prosecutions.” H .R  Rep. No. 1546,91st Cong., 2d Sess. 
reprinted in 1970 U.S. CODE CONG. & AD. NEWS 
3982, 3984. The 1964 House debates bear this out 
Congressman Arch A. Moore, Jr., the author of the bill that 
emerged from the conference committee and became the 
Act, decried the Senate version of the bill for its attempted 
establishment of a federal defender office and noted:

“This would have had the effect of placing the adminis­
tration of justice totally in the hands of the Federal
Government. An individual, accused of a crime, would

18



19

have been tried before a Federal judge, prosecuted by a 
Federal district attorney, and defended by a Federal 
public defender. Thus, the total right to a fair trial and to 
the preservation of one’s right to liberty would be solely 
dependent upon men appointed by the Federal Gov­
ernment and compensated out of the F ederal T reasury. ” 
110 CONG. REC. 18558 (August 7, 1964).
Similar concerns were voiced by several of the major 

proponents of the House version. See, e.g., the remarks of 
Congressman Willis (“ this sort of system is contrary to our 
time-honored system of checks and balances”), 110 CONG. 
REC. 448 (January 15, 1964); Congressman Moore 
(“ totally inconsistent with even-handed justice, democratic 
society, and good common sense”), 110 CONG. REC. 445 
(January 15, 1964); and Congressman McCulloch (“Most 
fearful, however, is that clear and present danger that would 
exist to our basic liberties if a Federal public defender system 
was established”), 110 CONG. REC. 455 (January 15, 
1964).

Although the 1970 Amendments to the Criminal Justice 
Act, Pub.L.No. 91-477, §1, 84 Stat. 916, eventually did 
create a federal public defender system, the concern about 
its lack of independence from the federal government 
continued. In the study (commissioned in 1967 by the 
Judicial Conference of the United States in conjunction with 
the Department of Justice) which served as the foundation 
for the 1970 Amendments, Professor Dallin H. Oaks of the 
University of Chicago Law School noted the comparative 
advantages and disadvantages of the private appointed 
counsel and public defender systems. Among the major 
disadvantages of the latter, he listed the inability of the 
federal defender to be “ as vigorously independent” as 
appointed counsel. Hearings before the Subcomm. on

19



20

Constitutional Rights o f the Senate Judiciary Comm, on S. 
1461, 91st Cong., 1st Sess., 305-306 (1969). In partial 
recognition of this concern, the 1970 Amendments to the 
Criminal Justice Act adopted a “mixed system” which 
continued participation by the private bar in the defense of 
indigents in federal criminal prosecutions while at the same 
time establishing federal defender organizations. As noted in 
the House Report: “ S. 1461 is expressly tailored to meet 
earlier objections to the concept of a Federal public defender 
system by making active and substantial participation by 
private attorneys basic to any district plan for representation. 
The use of appointed private counsel can be supplemented 
but not replaced.” H.R. Rep. No. 1546, 91st Cong., 1st 
Sess., reprinted in 1970 U.S. CODE CONG. & AD. 
NEWS 3982, 3985.

The independence of the private bar segment of the 
Criminal Jusice Act is more than merely theoretical. The 
entire operational structure of §3006A is one of non­
supervision. Although paid with funds from the United 
States Treasury, when appointed by the courts to represent a 
defendant, counsel “ function[ s] independently of any agency 
of the Government and in a truly adversary action.” United 
States v. Robinson, 553 F.2d429,430 (5th Cir. 1977), cert, 
denied, 434 U.S. 1016 (1978).

Under the Internal Operating Procedures of the Western 
District of Pennsylvania Criminal Justice Act Plan, an 
attorney who desires to be listed on the panel applies to the 
Federal Public Defender who evaluates his background and 
qualifications and then makes a recommendation to the court 
(A. 36). When a person who is financially eligible appears 
before the district court charged with a felony or mis­
demeanor, counsel will be appointed for him (Section III 
A (l) of Western District Plan set forth in Appendix A).

20



21

Where counsel has previously undertaken to represent the 
defendant, whether at defendant’s request or otherwise, prior 
to his presentation before ajudicial officer, such counsel may 
seek appointment and compensation from the court. If such 
counsel appears on the approved panel, compensation may 
be made retroactive to cover time expended during the arrest 
period (Section III B(l)). It nonetheless remains true that 
defendant does not have the right to select his appointed 
counsel from the list of attorneys (Section V A(3)). The 
Western District’s “mixed plan” provides for “private 
attorney appointments” in at least twenty-five percent of all 
cases involving eligible indigent defendants (Section V B). 
These aptly-named “private attorney appointments” have 
no continuing employment arrangement with the govern­
ment, are not furnished with an office or secretarial support, 
maintain a concurrent and unlimited private, retained prac­
tice and do not appear to the client as a person cloaked with 
the authority of the state. See Oaks Report, Hearings on 
S. 1461, supra, at 306, for the difference in client per­
ceptions of appointed counsel and public defenders.11

“Itis interesting to note that the 1977 Annual Report of the Director of 
the Administrative Office of the United States Courts, in its listing of 
“Personnel in the U.S. Judiciary”, lists public defenders but make no 
mention of private appointed counsel. Report at 27 (Table XI). Thus, it 
is clear that the client is not alone in perceiving the two categories as 
having distinctly different relationships with the federal government.

21



22

B. The United States Courts of Appeals Have 
Been Unanimous in Concluding That Neither 
Federal nor State Court-Appointed Counsel 
are Government Officers, Government Em­
ployees or Act Under Color of Governmental 
Authority.

The precise issue presented here — whether a court- 
appointed counsel in a federal prosecution sued in a state 
court for common-law malpractice or tort is to be deemed a 
federal official for the purpose of cloaking him with federal 
immunity — has never before been addressed by any 
appellate court. But see Sullens v. Carroll, 446 F.2d 1392 
(5 th Cir. 1971) [see fn. 14, infra], A number of analogous 
situations, however, point to a negative answer to this query.

The Federal Tort Claims Act, 28 U.S.C. § 1346(b), 
permits suit for negligence against the United States for the 
conduct of its “ employees”. In Jones v. Hadican, 552 F.2d 
249 (8th Cir.), cert, denied, 431 U.S. 941 (1977), plaintiff 
attempted to sue the United States for the legal malpractice 
of his federally-appointed counsel. Rejecting the notion that 
a Criminal Justice Act appointment made one an “employee 
of the United States”, the Eighth Circuit affirmed the 
dismissal of the complaint, noting that “ the United States 
had no right to control [counsel’s] representation of [de­
fendant].” 552 F.2d at 251 n. 4. There are no other federal 
appellate decisions on the issue.

A number of individuals have attempted to sue their 
federally-appointed counsel directly under the Constitution, 
invoking a remedy paralleling that recognized in Bivens v. 
Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971).12 Reasoning that a Bivens-type suit requires “ federal

11 Bivens, of course, limited its specific holding to claims under the 
Fourth Amendment. Whether similar general constitutional remedies 
may be implied from the Sixth Amendment’s guarantee of the effective 
assistance of counsel is a question not yet faced by this Court.22



23

action” in the same manner as 42 U.S.C. §1983 requires 
“ state action”, the United States Courts of Appeals for the 
First and Second Circuits (the only ones squarely to face the 
question) have concluded that Criminal Justice Act ap­
pointees are merely “private individuals not acting under
color of law”. Housand v. Heiman, _ _ _  F.2d____(2d Cir.
March 20, 1979), slip op. at 1827, 1829-1830; Page v. 
Sharpe, 487 F.2d 567 (1st Cir. 1973). In so holding, these 
courts took their cue from the unanimous conclusions of the 
various circuits to the effect that state court-appointed 
counsel do not act under “ color of law’ ’ within the meaning of 
§1983. See, e.g., O’Brien v. Colbath, 465 F.2d 358, 359 
(5thCir. 1972); Mulligan v. Schlachter, 389 F .2d231,233 
(6th Cir. 1968); French v. Corrigan, 432 F.2d 1211,1214- 
1215 (7th Cir. 1970), cert, denied, 401 U.S. 915 (1971); 
Barnes v. Dorsey, 480 F.2d 1057, 1061 (8th Cir. 1973); 
Szijarto v. Legeman, 466 F.2d 864, 864 (9th Cir. 1972) 
(dictum)-, Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 
1972). See also Thomas v. Howard, 455 F .2d228,229 (3d 
Cir. 1972) [volunteer attorney in post-conviction proceeding 
did not act under color of law]. There are no decisions to the 
contrary.13 Indeed, some circuits have even concluded that 
public defenders do not act under color of state law, see 
Slavin v. Curry, 574 F.2d 1256, 1265 (5th Cir. 1978); 
Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1972), 
although this more difficult question has not been resolved

13In one reported decision, Minns v. Paul, 542 F.2d 899 (4th Cir. 
1976), cert, denied, 429 U.S. 1102 (1977), the Fourth Circuit found it 
unnecessary to reach the state action question in light of its finding of 
immunity under § 1983. Such an approach is difficult to understand. It 
seems “obvious that the state action question, a require ment for subject 
matter jurisdiction, must be weighed prior to a consideration of 
immunity.” Robinson v. Bergstrom, 579 F,2d401,404 (7th Cir. 1978).

23



24

with unanimity. See Robinson v. Bergstrom, 579 F.2d401, 
404-408 (7th Cir. 1978). See also Brown v. Joseph, 463 
F.2d 1046, 1047-1049 (3d Cir. 1972), cert, denied, 412 
U.S. 950 (1973) [court apparently assumes, without 
deciding, that public defender does act under color of state 
law, although it indicates that such color of law would be 
“difficult” to perceive]; Millerv. Barilla, 549 F .2d648,650 
(9th Cir. 1977) [court notes in dicta that state action claim, 
as applied to public defender, is “ tenuous”]. Even those 
decisions which find state action in the conduct of defender 
organizations, however, have been quick to distinguish the 
situation of appointed counsel. In Robinson, supra, 579 
F.2d at 405, quoting French v. Corrigan, supra, 432 F.2d at 
1214, for example, the Seventh Circuit noted that private 
attorneys appointed to defend indigents “ ‘were not func­
tionaries of the state but were proceeding in their private 
capacity’.”

In sum, therefore, there is not a single federal decision 
which has held that mere governmental compensation to 
private counsel for the representation of indigents in criminal 
prosecutions invests that individual with color of law or 
badge of office.14 This current state of the law conforms in all 
respects with the vision of the drafters of the original 
Criminal Justice A ct— to compensate rather than federalize 
the representation of indigents.

’“•Neither Jozies'v. Warlick, 364 F.2d 828 (4th Cir. 1966), nor Sullens 
v. Carroll, 446 F.2d 1392 (5th Cir. 1971), the two summary decisions 
relied on by the Pennsylvania Supreme Court appears to have considered 
the question. Both seem to find immunity regardless of the defendant’s 
status as an officer. Indeed, in Sullens, supra, the Fifth Circuit 
concluded that '“court-appointed counsel are immune from suit the same 
as federal officials are.” (emphasis added). In any event, later decisions 
in the Fifth Circuit clearly find no color of law involved in the conduct of 
appointed counsel. O’Brien v. Colbath, 465 F.2d 358, 359 (5th Cir. 
1972). The Fourth Circuit, on the other hand, believes the question to be 
still open. Minns v. Paul,542 F. 2d 899, 900 (4th Cir. 1976), cert, 
denied, 429 U.S. 1102 (1977). See fn. 13, supra.24



25

C. No Substantial Rights or Duties of the United 
States Hinge on the Outcome of This State 
Litigation Between Private Parties.

Underlying the command of Howard v. Lyons, 360 U.S. 
593 (1959), to look to federal common law when testing the 
validity of a defense by a federal officer, sued for having 
committed a state common-law tort in the course of his 
official duties, is the recognition of the clear and substantial 
government interest in the efficient operations of its agencies 
and instrumentalities. Defendant in Howard was the 
Commander of the Boston Naval Yard, sued for alleged 
defamatory material contained in an official memorandum, 
copies of which had been mailed to members of the 
Massachusetts congressional delegation. The defendant’s 
authority to act derived solely from federal sources and the 
scope of his authority to make privileged statements “ in the 
course of duty” involved a question the resolution of which 
directly affected “the effective functioning of the Federal 
Government.” It is hardly surprising, therefore, that Mr. 
Justice Harlan concluded: “ [n]o subject could be one of more 
peculiarly federal concern, and it would deny the very 
considerations which give the rule of privilege its being to 
leave determination of its extent to the vagaries of the laws of 
the several States.” 360 U.S. at 597.

An entirely different situation is presented by the instant 
case. There is here no clear and substantial interest of the 
national government, no significant threat to any identifiable 
federal policy or interest and no matter essentially of federal 
character. The Pennsylvania Supreme Court’s decision to 
look to federal law in gauging the scope of Ackerman’s 
defense may be thought to rest on two perceived federal 
interests: (1) that defendant was a federal actor acting 
pursuant to federal authority; or (2) that the tortious act

25



26

alleged arose during the course of a federal legal proceeding. 
Neither justification for resort to federal common law in an 
action based solely on state law withstands analysis.

That the defendant cannot be considered a federal actor 
has already been demonstrated. He cannot be sued as such
under the Constitution, see Housand v. Heiman, ____ F.2d
____(2dCir. M arch20,1979), slip op. atl827. TheFederal
Government is not responsible for his negligence as they 
would be for that of a federal employee, see Jones v. 
Hadican, 552 F .2d249,251 n.4 (8thCir.), cert denied, 431 
U.S. 941 (1977). His state equivalent does not act under 
“ color of law” within the jurisdictional requirements of 42 
U.S.C. §1983. See, e.g., French v. Corrigan, 432 F.2d 
1211, 1214-1215 (7th Cir. 1970), cert denied, 401 U.S. 
915 (1971).

To be sure, there are connections between the court- 
appointed counsel and the government. The court selects 
him for the panel from the list given it; it appoints him to the 
specific case; and the Administrative Office pays him for his 
services. But these are simply not enough. Indeed, one court 
has perceptively noted that, far from constituting action of 
the government, the appointed counsel is obligated to 
“oppose the efforts of the state.” Vance v. Robinson, 292 
F.Supp. 786, 788 (W.D.N.C. 1968). An attorney’s al­
legiance is to his client, not to the person who happens to be 
paying him for his services. Spring v. Constantino, 168 
Conn. 299, 362 A.2d 871 (1975). Moreover, payment by 
the government does not endow the lawyer with any powers 
not already possessed by virtue of being licensed to practice. 
Indeed, should he desire to do so without compensation, he 
could represent the defendant absent any appointment at all. 
See Mallen, The Court-Appointed Lawyer and Legal Mal­
practice—Liability or Immunity, 14 Amer.Crim.L.Rev.

26



27

59, 62 (1976). As the Chief Justice noted several years ago, 
“defense counsel who is appointed by the court . . . has 
exactly the same duties and burdens and responsibilities as 
the highly paid, paid-in-advance criminal defense lawyer.” 
Burger, Counsel fo r  the Prosecution and Defense - Their 
Roles Under the Minimum Standards, 8 Amer.Crim.- 
Law.Q. 1, 6 (1969). See also ABA Standards Relating to 
the Defense Function, Section 3.9 (1971). In short, the 
status of a Criminal Justice Act appointee is no different, for 
these purposes, than that of retained counsel. The mere fact 
that the latter is paid by the individual with means and the 
former by the Government on behalf of the individual 
without such means is an inadequate basis for resort to 
federal standards in a state common-law action. No more 
than with the private physician paid for his services under 
Medicaid funds, 42 U.S.C. § 1396-1396k, can the mere 
source of compensation provide the basis for the incursion of 
federal common law into malpractice litigation surrounding 
the conferral of private services.

Both the court-appointed counsel and his retained 
counterpart are, of course, “officers of the court” . But, as this 
Court has pointed out on a number of occasions, the word 
“officer” as it has always been applied to lawyers conveys 
quite a different meaning from the word “officer” as applied 
to people serving as officers within the conventional meaning 
of that term. See, e.g., In re Griffiths, 413 U.S. 717, 728
(1973). Certainly nothing that has been said “ in an y ... case 
decided by this Court places attorneys in the same category 
as marshals, bailiffs, court clerks or judges.” Cammer v. 
United States, 350 U.S. 399, 405 (1956). As Mr. Justice 
Black noted in Cammer, “ [ujnlike these officials a lawyer is 
engaged in a private profession, important though it be to our 
system of justice.” Id. They make their own decisions and

27



28

follow their own best judgment. In short, “ they are not 
officials of government by virtue of being lawyers.” In re 
Griffith, supra, 413 U .S. at 729. The present litigation is 
simply between private parties.

The Pennsylvania Supreme Court’s decision may alter­
natively be read as requiring resort to federal law, not 
because of the nature of the defendant, but because of the 
situs of the tort — in preparation for or in the course of a 
federal criminal proceeding. Taken on its face, the court’s 
assertion that “we are required to look to the federal law” in 
determining the immunity of “ a participant in a federal legal 
proceeding” (A. 49) would require application of a federal 
standard whether the action was commenced against a 
retained counsel or an appointed one. There is simply no 
authority for this wide-ranging statement.15 Where a legal 
malpractice tort is committed against a citizen of a state, it 
makes little sense to have the existence of that state’s 
common-law remedy depend upon whether the representa­
tion took place in a federal or state forum. If federal common 
law is to control on the question of immunity, why not as well 
on the definition of negligence and the measurement of 
damage?

“The present litigation is purely between private parties 
and does not touch the rights and duties of the United 
States.” Bank o f America Nat. Trust & Sav. Ass’n v. 
Parnell, 352 U.S. 29, 33 (1956). Although funds from the 
United States Treasury provided defendant Ackerman’s 
compensation, these funds are not placed in jeopardy by the

1!The instant case, of course, has nothing whatsoever to do with the 
privilege enjoyed by counsel and witnesses alike against defamation 
actions for statements made in connection with ajudicial proceeding. See 
Imbler v. Pachtman, 424 U.S. 409, 426 n. 23 (1976).

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29

present action. The resolution of petitioner’s claim “will 
have no direct effect upon the United States or its Treasury.” 
Miree v. DeKalb County, 433 U.S. 25, 29 (1977). Any 
interest the federal government may have in the subsequent 
liability of those whom it compensated, like its interest in the 
transfer of Government paper in Parnell, is far too specula­
tive and far too remote to justify the application of federal 
law. 352 U.S. at 33-34. The issue whether to displace state 
law on a matter such as this “ is primarily a decision for 
Congress.” Wallis v. Pan American Petroleum Corp., 384 
U. S. 63,68 (1966). In the past, when Congress has seen fit to 
grant immunity, “ it has done so by statute” . Martinez v. 
Schrock, 430 U.S. 920 (1977) (White, J„ dissenting from 
denial of certiorari). Petitioner does not dispute Con­
gressional power to extend immunity in a manner consistent 
with the equal protection mandate of the Fifth Amendment 
See Point II, supra. But Congress has taken no such action 
here. On the question of immunity, no intent to displace state 
law is evinced.

“Except in matters governed by the Federal Constitution 
or by Acts of Congress, the law generally to be applied is the 
law of the State.” ErieR. Co. v. Tompkins, 304 U.S. 64,78 
(1938). Although Clearfield Trust Co. v. United States, 318 
U.S. 363(1943), identifies a limited areaforthe operation of 
federal common law in actions commenced under state law, 
this is not such a case.

The parallel between the instant action and the one at issue 
in Miree v. DeKalb County, 433 U.S. 25 (1977), is striking. 
Miree arose out of the crash of a private Lear Jet shortly after 
takeoff from the DeKalb-Peachtree Airport. Plaintiffs, 
primarily the survivors of the deceased passengers, sought to 
impose liability on DeKalb County as third-party bene­
ficiaries of contracts between the County and the Federal

29



30

Aviation Administration. Under the terms of the federal 
grant agreement, the County had agreed to take certain 
safety measures. Plaintiffs contended that such measures 
had not been effectuated and that such failure had resulted in 
the air crash. Like the present case, therefore, Miree was a 
state common-law action between private parties. Like the 
present case, the suit concerned an obligation to plaintiffs 
undertaken in order to receive federal funds. Like the present 
case, the litigation raised no question regarding the liability 
or responsibilities of the United States and could, therefore, 
have “no direct effect upon the United States or its 
Treasury” . 433 U.S. at 29.

The question posed by Miree concerned whether plaintiffs 
as third-party beneficiaries had standing to sue the County. 
In a 9-0 decision this Court held federal common law 
inapplicable. In an opinion joined by all but the Chief Justice, 
Mr. Justice Rehnquist wrote “ [sjince only the rights of 
private litigants are at issue here, we find the Clearfield Trust 
rationale inapplicable.” Id. at 30. The same result should 
prevail here. Certainly the interests of the United States in 
regulating aircraft travel and promoting air travel safety, on 
the one hand, and in promoting an efficent method of 
representation for defendants in federal criminal prose­
cutions, on the other, are both significant. But neither interest 
is threatened by purely private litigation in any but the most 
speculative, remote manner.

Because, therefore, the representation of Ferri in his 
criminal trial did not constitute government activity, federal 
interests are not sufficiently implicated to warrant the 
application of federal common law on the question of 
immunity. In any event, as shown below, federal common 
law accords no immunity to one serving as appointed 
counsel. See Point II, infra. The line separating these two

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31

propositions is, at times, blurred. Although the first concerns 
choice of law and the second, interpretation of federal 
common law, both lead to the same conclusion. Indeed, in his 
dissent in the Pennsylvania Supreme Court, Justice Roberts 
combined the two by concluding that, because they do not act 
under color of law, court-appointed attorneys do not, as a 
matter of “ federal immunity law . . . acquire status as . . . 
federal officials] entitled to immunity” (A. 57).

II.

FEDERAL COMMON LAW AFFORDS NO 
IMMUNITY TO A PRIVATE ATTORNEY 
WHOSE APPOINTMENT AND COMPEN­
SATION BY THE FEDERAL GOVERN­
MENT ARE INTENDED SOLELY FOR 
THE PRESERVATION OF THE CONSTI­
TUTIONAL RIGHTS OF THE CRIMINAL 
DEFENDANT.

Recent decisions of this Court have accorded absolute 
common-law immunity from suits alleging unconstitutional 
conduct to only two classes of government officials: those 
performing an adjudicatory role, see Pierson v. Ray, 386 
U.S. 547 (1967) [state court judges]; Butz v. Economou, 
438 U.S. _ _  , 98 S. CL 2894, 2912-2915 (1978) 
[administrative agency hearing examiners],16 and those 
performing a prosecutorial role, see Imbler v. Pachtman, 
424 U.S. 409 (1976) [state prosecutors]; Butz v. 
Economou, supra, at 2915-2916 [administrative agency

16The Court has also noted with approval the analogous grant of 
absolute immunity to grand jurors. See Butz v. Economou, 438 U.S. 
—  , 98 S.Ct. 2894, 2912-2913 (1978).

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32

officials performing prosecutorial functions — both those 
who intitiate the administrative proceedings and those who 
conduct the trial on behalf of the agency]. For no other 
official has more than a qualified immunity been found 
warranted. See, e.g., Scheuer v. Rhodes, 416 U.S. 232
(1974) [state governor, state university president; senior 
officers of the state national guard]; Wood v. Strickland, 420 
U.S. 308 (1975) [school board members]; O’Connor v. 
Donaldson, 422 U.S. 563 (1975) [superintendent of state 
hospital]; Procunier v. Navarette, 434 U.S. 555 (1978) 
[state prison administrators]; Butz v. Economou, 438 U.S.
____, 98 S.Ct 2894 (1978) [Secretary of Agriculture].17
While these cases usually involve §1983 claims against 
state officials, this Court has recently evinced a desire for 
congruity between federal and state officials sued for con­
stitutional infringement of a citizen’s rights. Butz v. 
Economou, supra, at 2907-2908.18 In light of Butz, it is now 
clear that the immunity accorded federal officials may be 
accurately measured by scrutiny of the prudential con­
siderations outlined in §1983 decisions. The Supreme 
Court, 1977 Term, 92 Harv.L.Rev. 57, 271 (1978); Note, 
52 Temp.L.Q. 102, 110-114 (1979).

In his pleading Ferri alleges that, as a consequence of 
defendant Ackerman’s gross neglect and malpractice, he has 
been deprived of his constitutional rights under the Fifth and 
Sixth Amendments of the United States Constitution

17Although this Court has accorded absolute immunity to persons 
performing a legislative function, see, e.g., Lake Country Estates, Inc. v.
Tahoe Regional Planning Agency,__ U .S .___ , 99 S.Ct. 1171
(1979), the applicability of such a doctrine to the present case would be 
patently inappropriate.

“Although plaintiffs complaint in Butz contained both claims directly 
under the Constitution and allegations of common-law torts, 98 S.Ct. at 
2899 n. 5, the Court addressed only the former. 98 S.Ct at 2905 n. 22.

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33

(A. 3 1).19 Ackerman’s defense relies on an absolute federal 
common-law immunity. As this Court recognized in Butz, 
“federal officials who seek absolute exemption from per­
sonal liability for unconstitutional conduct must bear the 
burden of showing that public policy requires an exemption 
of that scope.” 98 S.Ct. at 2911. Even assuming that 
Ackerman can convince this Court of the applicability of 
federal common law to state litigation between private 
citizens [See Point I, supra], it is plain that he cannot, under 
the recent decisions of this Court, carry the burden imposed 
upon him by Butz. Indeed, quite to the contrary, the grant of 
absolute immunity to Criminal Justice Act attorneys would 
engender precisely the internal conflicts which the 
imposition of immunity typically is designed to avoid and 
would discourage the very same zealous performance of duty 
that the grant of such immunity seeks to achieve.

A  There is Neither a Common-Law History of 
Immunity for Private Counsel nor a Legislative 
Intent to Grant Such by Virtue of Appointment 
Under the Criminal Justice Act

The Pennsylvania Supreme Court extended absolute 
immunity to federal court-appointed counsel solely by virtue 
of his participation in judicial proceedings (A. 52). This 
type of approach, focusing on the location of the officer 
rather than on the characteristics of his duties, has been

19Ferri, however, finds his remedy solely in common-law malpractice 
and tort. He does not seek a remedy directly under the Constitution nor 
could he, if, as the lower federal courts have concluded, a court- 
appointed counsel does not, by virtue of his appointment, act “under
color of federal law”. Housand v. Heiman,___ F. 2d____ (2nd Cir.
March 20, 1979), slip op. at 1827, 1829 n. 1.

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34

criticized by this Court on more than one occasion as “overly 
simplistic.” Imblerv. Pachtman, 424 U .S409,421 (1976);
Butz v. Economou, 438 U .S .____, 98 S.Ct 2894, 2913
(1978). As Imbler indicates, the immunity of a federal 
officer must be “predicated upon a considered inquiry into 
the immunity historically accorded the relevant official at 
common law and the interests behind it.” 424 U.S. at 421. 
The first of these factors is explored below. The second will 
be dealt with in Point II B, infra.

Where this Court has found absolute immunity, it has 
relied heavily on aged historical foundations. In according 
such immunity to judges, for example, it has found roots 
extending back at least four hundred years, see Floyd v. 
Barker, 12 Co.Rep. 23,77 Eng.Rep. 1305 (K.B. 1608); and 
given voice by its own decisions for more than one hundred 
years. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335 
(1872); Randall v. Brigham, 74 U.S. (7 Wall.) 523 
(1869). Similarly, in recognizing a like immunity for prose­
cutors, the Court has been able to cite long-standing 
common-law precedent. Griffith v. Stinkard, 146 Ind. 117, 
44 N.E. 1001 (1896); Yaselli v. Goff, 12 F.2d 396 (2d Cir. 
1926), affid mem., 275 U.S. 503 (1927). Even where it has 
accorded only a qualified immunity, the Court has felt 
constrained to rely upon ancient common-law origins. See, 
e.g., Scheuerv. Rhodes, 416 U.S. 232,239-240 n. 4 (1974) 
[traces immunity of the executive back seven hundred
years]; Butz v. Economou, 438 U.S____ _ 98 S.Ct. 2894.
2902 (1978).

There is simply “no history of common-law immunity” for 
either appointed counsel or public defenders. Robinson v. 
Bergstrom, 579 F.2d 401, 409 (7th Cir. 1978); Minns v. 
Paul, 542 F.2d 899, 901 (4th Cir. 1976), cert, denied, 429 
U.S. 1102 (1977). Quite to the contrary, the recognition by

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35

numerous federal decisions that a defendant “would 
arguably have the same state action in tort for malpractice 
against the public defender f or court-appointed counsel] as a 
former client might have against a retained attorney” 
implicitly leads to the conclusion that common law accords 
no such immunity. See, e.g., Robinson v. Bergstrom, supra, 
579 F.2d at 411; Tasby v. Peek, 396 F.Supp. 952, 958 
(W.D. Ark. 1975); Louisiana exrel. Purkeyv. Ciolino, 393 
F.Supp. 102, 105, 110 (E.D. La. 1975); Sanchez v. 
Murphy, 385 F.Supp. 1362, 1364 (D. Nev. 1974); Hill v. 
Lewis, 361 F.Supp. 813, 818 (E.D. Ark. 1973); United 
States ex rel Wood v. Blacker, 335 F. Supp. 43,46 (D. N. J. 
1971); Vance v. Robinson, 292 F.Supp. 786, 788 
(W.D.N.C. 1968).20 See also Spring v. Constantino, 168 
Conn. 563, 576, 362 A.2d 871, 879 (1975) [holding 
unanimously that state public defender enjoys no common- 
law immunity from state malpractice action]; Housand v.
Heiman,___  F.2d____(2d Cir. March 20,1979), slip op.
1827, 1832 [dismissing Bivens-type action against
federally-appointed counsel for absence of “federal action” 
but remanding claim under diversity jurisdiction], Cf. 
Walker v. Kruse, 484 F.2d 802, 804 (7th Cir. 1973) 
[suggesting that Illinois courts might afford a state law 
immunity from malpractice liability to counsel appointed to 
serve without compensation].

The federal decisions identify a critical reason for the 
paucity of common-law history - the obligation of the 20

20Apparently the only decision to find common-law immunity for 
court-appointed counsel from state malpractice actions is Sullens v. 
Carroll, 446F.2d 1392 (5th Cir. 1971). Note, Minns v. Paul: Section 
1983 Liability of State-Supplied Defense Attorneys, 63 Va.L.Rev. 607, 
620 (1977). The court in Sullens based its holding not on historical 
foundations but on an analogy to other “federal officials”.

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36

government to provide counsel for the indigent defendant is 
of recent vintage.21 See Robinson v. Bergstrom, supra, 579 
F.2d at 409; Minns v. Paul, supra, 542 F.2d at 901. Yet, as 
this Court has often recognized, the paucity of common-law 
history may be remedied by analogizing the functions of the 
“new office” to those of an office existing at common law. 
See Wood v. Strickland, 420 U.S. 308, 318-319 (1975);
Butz v. Economou, 438 U.S____ _ 98 S.Ct. 2894, 2913-
2916 (1975). The issue for resolution, therefore, narrows 
here to whether the functions of appointed counsel more 
closely parallel those of judges and prosecutors22 - tra­
ditionally accorded immunity at common law - or those of 
private counsel who enjoyed no such immunity. Indeed, 
common law is replete with instances of clients’ actions of 
malpractice, negligence and breach of contract against their 
attorneys. See, e.g., Pittv. Yaldin, 4 Burr. 2060,98 Eng.Rep. 
74 (K.B. 1767) [for representation in civil matter] Stephens 
v. White, 2 Va. 203 (1796) [civil]; Eccles v. Stephenson, 6 
Ky. 517(1814) [civil]; Hatch v. Lewis, 175 Eng.Rep. 1145 
(N.P. 1861) [criminal]; Malone v. Sherman, 49 N.Y.Super. 
530 (1883) [criminal]; and Cleveland v. Cromwell, 110 
App. Div. 82, 96 N.Y.S. 475 (1905) [this case is of 
particular interest since the complaint therein charged 
criminal defense counsel with failing to note the running of an 
applicable statute of limitations],

21This historical premise may not be entirely accurate. As noted by the 
American Bar Association Project on Standards for Criminal Justice in 
its Standards Relating to Providing Defense Services (1968):

“The concept of providing counsel to those in need of a lawyer in 
criminal proceedings and unable to retain one is not a novelty in 
American law. Our courts have undertaken to protect persons 
accused of crime and lacking legal representation since the earliest 
periods of our history.” Id. at 2.
22The inappropriateness of such a parallel is explored further in Point 

II B 2, infra.
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37

Merely to pose the question is to suggest the answer. The 
Criminal Justice Act was enacted in order “ to place indigent 
defendants as nearly as may be on a level of equality with 
nonindigent defendants in the defense of criminal cases”. 
United States v. Tate, 419 F.2d 131,132(6thCir. 1969). It 
was designed to satisfy the promise of Johnson v. Zerbst, 
304 U. S. 458 (1938), that no defendant should be forced to 
stand trial in a federal criminal prosecution without the 
assistance of counsel. Counsel appointed under the Act owes 
his primary obligation to the defendant and not to the court or 
the public at large. His duties, burdens and responsibilities 
are “exactly the same” as those of private, retained counsel. 
Burger, Counsel fo r  the Prosecution and Defense - Their 
Roles Under the Minimum Standards, 8 Amer.Crim. Law 
Q. 1,6 (1969). This parity between appointed and retained 
counsel was envisioned by the framers of the Act and has 
been recognized by all who have scrutinized the relationship. 
The Standards Relating to Providing Defense Services 
approved by the American Bar Association House of 
Delegates in February, 1968, set forth the basic principle 
that defenders and assigned counsel “ should be free from 
political influence and should be subject to judicial super­
vision only in the same manner and to the same extent as are 
lawyers in private practice”. Id. Section 1.4 at 6. As the 
commentary thereto points out, “ [a] system which does not 
guarantee the integrity of the professional relationship is 
fundamentally deficient in that it fails to provide counsel who 
have the same freedom of action as the lawyer whom the 
person with sufficient means can retain.” Id. at 19. It is this 
freedom of action that Congress had in mind when it enacted 
the Criminal Justice A ct That Act establishes a system of 
compensating appointed counsel who are independent of

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38

government control, owe their loyalty soley to the client, and 
are free to perform their functions in as nearly as possible the 
same manner as if privately retained. Nowhere is this single- 
mindedness of purpose more starkly revealed than in the 
initial rejection of the creation of a federal defenders 
organization [See Point I, supra].

As Congressman Arch Moore, Jr., the Act’s author, 
noted:

“Beyond question, the primary objection to the creation 
of a Federal Public Defender Office is the fear that it will 
undermine the Anglo-Saxon tradition in America of 
combative trial proceedings where the lawyer for the 
defendant is free of State control and thereby free to 
render the best defense he is capable of making.” 110 
Cong.Rec. 445 (January 15, 1964).
The sum and substance of the legislative history of the 

Criminal Justice Act manifest a singular objective: to 
provide private counsel for the indigent who cannot afford to 
retain one. Congress did not thereby create a new function, it 
merely made available an already existing one to those 
without financial means. The duties, responsibilities and 
burdens of the appointed counsel were designed to mirror in 
every way those of retained counsel.

It is not likely that Congress enacted the Criminal Justice 
Act ignorant of the common-law malpractice liability under 
which lawyers labor. Indeed, the vast majority of the 
legislators are attorneys themselves. Yet, in spite of this 
recognition, no suggestion was made on the part of any 
congressman regarding the need for immunity and the 
language of the Act is silent on the subject. In Tenney v. 
Brandhove, 341 U.S. 367, 376 (1951), this Court con­
cluded that Congress’s silence in §1983 respecting im­
munity may be properly read as preserving intact the existing

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39

state of affairs under common law. There is no reason to 
depart from this sound rule of construction in the instant case. 
Congress acts in the context of existing common-law rules, 
and in construing a statute a court considers the “common 
law before the making of the Act.” Heydon’s Case, 3 
Co.Rep. 7a, 7b, 76 Eng.Rep. 637,638 (Ex. 1584) quoted in 
Pierson v. Ray, 386 U.S. 547, 561 (1967) (Douglas, J„ 
dissenting).

B. Consideration of the Interests of the De­
fendant, the Government and the Appointed 
Counsel Reveals that All Three Would be Best 
Served by Permitting Civil Accountability.

The Court’s recent immunity cases have attempted to 
reconcile the dilemma the immunity doctrine poses by 
balancing the often conflicting interest of “ the injured party’s 
legal right to seek redress for the wrong done him” and “ the 
public's interest in fearless decisionmakers free from harass­
ment who are also conscientious and responsible in per­
forming their public duties.” The Supreme Court, 1977 
Term, 92 Harv.L.Rev. 57, 272 n. 45 (1978). A con­
sideration of these interests in the context of the present case 
not only fails to reveal a conflict between these interests but, 
in fact, starkly exposes the dangers of immunity to the Sixth 
Amendment’s guarantee of the effective assistance of 
counsel.

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40

1. The Injured Party’s Legal Right to Redress.

As this Court has long recognized, “ the right to counsel is 
the right to the effective assistance of counsel.” McMann v. 
Richardson, 397 U.S. 759, 771 n. 14 (1970). The promise 
of Johnson v. Zerbst, 304 U.S. 458 (1938); Gideon v. 
Wainwright, 372 U.S. 335 (1963); and Argersinger v. 
Hamlin, 407 U.S. 25 (1972), means little if it does not mean 
the right to effective counsel. The duty to assign counsel is 
not discharged by the mere assignment. Powell v. Alabama, 
287 U.S. 45, 71 (1932).

In his 1973 John F. Sonnett Memorial Lecture at Fordham 
Law School, the Chief Justice reminded us that “ [t]he high 
purposes of the Criminal Justice Act will be frustrated unless 
qualified advocates are appointed to represent indigents” . 
Burger, The Special Skills o f  Advocacy, 42 Fordham L. Rev. 
227, 230 (1973) (emphasis original). “ In some places,” 
reported the Chief Justice, “ it is the observation of judges 
that the Criminal Justice Act has not brought about im­
provement in the general quality of criminal defense and that 
performance has not been generally adequate.” Id. at 237. 
This case calls on the Court to decide what remedies it will 
countenance where the gross inadequacy of the performance 
results in the unwarranted deprivation of human liberty. 
Shall the consequences of such substandard criminal defense 
work fall solely on the indigent defendant?

The conduct alleged in the plaintiff’s pleadings, if proved, 
would establish blatant incompetence. No trial tactic, no 
exercise of discretion, no professional judgment can pos- 
sibily justify the failure to move to dismiss three counts of an 
indictment which, on their face, reveal an absolute statute of 
limitations defense. The error is plain. The prejudice is 
completely nonspeculative.

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41

Were respondent here retained counsel the remedy at 
common law would be clear. Solely because Ferri lacked the 
financial means to retain counsel on his own, however, the 
decision below would deprive him of an equivalent oppor­
tunity to remedy this wrong. [The equal protection impli­
cations of such a distinction are treated in Point III, infra]. 
The irony of this dichotomy is that it is the poor who have the 
greatest need for such a remedy. Quite aside from the 
generally lower quality (or motivation) of appointed counsel, 
see Note, Providing Counsel fo r  the Indigent Accused: The 
Criminal Justice Act, 12 Amer.Crim. L.Rev. 789,821
(1975); Bazelon, The Defective Assistance o f Counsel, 42 
U.Cinn. L.Rev. 1 (1973), the client with such counsel can 
exercise none of the traditional quality controls enjoyed by 
one who can afford retained counsel. The Criminal Justice 
Act plans generally deny the right to select counsel of one’s 
own choosing. See, e.g., Western District of Pennsylvania 
Criminal Justice Act Plan, Section V A(3). The right to seek 
removal and substitution of counsel perceived as incompe­
tent is severely restricted. See, e.g., United States v. 
Michelson, 559 F.2d 567, 572 (9th Cir. 1977); United 
States v. Malizia, 437 F.Supp. 952, 955 (S.D.N.Y. 1977), 
affd. mem., 573 F.2d 1298 (2d Cir. 1978). The client with 
appointed counsel lacks even the comfort of knowing that 
counsel is being assisted or supervised by a superior as may 
be the case where a public defender is employed.

That a habeas corpus remedy may lie for the ineffective 
assistance of counsel is no basis for affording malpractice 
immunity. Even assuming that the malpractice is one of 
constitutional dimension, habeas corpus is not an adequate 
remedy. The relief it offers is solely prospective in nature, A 
proper system of remedies should provide redress to injured 
parties by compensating them for losses suffered, it should

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42

provide sanctions against the party responsible for the injury 
and it should deter others similarly situated from repeating 
the conduct which led to the injury. Measured by these goals, 
habeas corpus is probably the least practical means of 
dealing with ineffective assistance of counsel. Bines, 
Remedying Ineffective Representation in Criminal Cases: 
Departures From Habeas Corpus, 59 Va.L.Rev. 927, 970- 
971 (1973). It compensates no one; it delivers no sanctions 
against the source of the problem; and its deterrent effect on 
defense counsel is virtually non-existent. Ironically, habeas 
corpus holds only the government accountable even though 
its control over the unconstitutional conduct is ever so slight. 
Id .23

The remedies of reprimand, censure, suspension and 
disbarment of negligent lawyers are similarly unavailing. 
Judges and prosecutors rarely initiate them and the poorly 
represented defendant, for whom these remedies provide no 
compensation, has little incentive to seek such sanctions 
against his former counsel. Bines, supra, at 972-973.

In short, it is the malpractice action which affords the only 
viable remedy. See Link v. Wabash R. Co., 370 U.S. 626, 
634 n. 10 (1962) [“ . . . if an attorney’s conduct falls 
substantially below what is reasonable under the circum­
stances, the client’s remedy is against the attorney in a suit 
for malpractice” .] It alone can compensate the criminal

23The availability of habeas corpus for ineffective assistance of 
counsel is at best speculative. Courts are most hesitant to allow such 
claims to become opportunities for relitigating questions disposed of on 
direct appeal or raising underlying issues not cognizable on habeas 
review. See, e.g., Beasley v. United States, 491 F. 2d 687,690(6thCir. 
1974). Moreover, the prisoner who seeks habeas corpus and loses may 
find his negligence action dismissed as collaterally estopped. See 
Lamore v. Laughlin, 159 F.2d 463 (D.C. Cir. 1947).

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43

defendant for his unlawful conviction and imprisonment. It 
alone can provide such compensation at the expense of the 
party most responsible for whatever injustice has occurred. 
Finally, it alone can effectively deter undesirable future 
conduct and encourage strict adherence to the Code of 
Professional Responsibility and traditional standards of 
adequate defense representation.

2. The Public’s Interest in Zealous Advocates Who 
Conscientiously and Responsibly Perform  Their 
Public Duties.

As this Court has so frequently recognized, immunity is 
not granted for the benefit of the erring official. It is, instead, 
intended solely “for the benefit of the public whose interest it 
is that the [officials] should be at liberty to exercise their 
functions with independence and without fear of conse­
quences.” Scott v. Stansfield, L .R  3 Ex. 220,223 (1868), 
quoted in Pierson v. Ray, 386 U.S. 547,554 (1967). See 
Gregoire v. Biddle, 111 F.2d 579,581 (2d Cir. 1949), cert, 
denied, 339 U.S. 949 (1950). Yet the public interest that 
prompts the grant of absolute immunity to judges and 
prosecutors is non-existent where court-appointed counsel 
are involved. See Spring v. Constantino, 168 Conn. 563, 
566-567, 362 A.2d 871, 875 (1975); Barto v. Felix, 378
A.2d 927,931 (Pa. Super. 1977). A prosecutor or judge 
owes his primary duty of allegiance to the general public. In 
the course of that duty he is commanded to seek sanctions 
against or punish unwilling defendants. Although it is 
recognized that there will be an occasional prosecutor or 
judge who will act erroneously, maliciously or even cor­
ruptly, it has been thought better in the long run to leave

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44

unredressed these wrongs done by dishonest officers than to 
subject those who try to do their duty to the constant dread of 
retaliation. Gregoire v. Biddle, supra, 111 F.2d at 581. To 
guarantee that their loyalties are not divided between the 
imposed duty to the public to insure justice and the natural 
instinct to protect oneself from suit, absolute immunity is 
afforded to judges, Stump v. Sparkman, 435 U.S. 349 
91978); Pierson v. Ray, 386 U.S. 547 (1967), and 
prosecutors, Imbler v. Pachtman, 424 U. S. 409 (1976). The 
key concern in these decisions has been the tension or 
conflict that exists between the public need and the fear of 
suit.

An appointed counsel, on the other hand, is not a servant 
of the public. His duty is undivided, whether measured by the 
Code of Professional Responsibility [E.C. 5-1 provides that 
the professional judgment of a lawyer should be exercised, 
within the bounds of the law, solely for the benefit of his 
client], the ABA Standards Relating to The Defense Func­
tion [ § 1.6 is entitled “Clients Interests Paramount”], or the 
Criminal Justice Act [See, e.g., Section V E(7) of the 
Western District Plan]. He serves only the client for whose 
representation he has been appointed. It is difficult to see, 
therefore, how potential liability for failing to provide a 
competent defense divides a lawyer’s loyalties between 
himself and the person he is supposed to defend. As one 
commentator has noted, “ If anything potential liability 
should promote greater devotion to the clients’ cause, at least 
if the experience of a hundred odd years of tort liability for 
professional malpractice has not been wrong.” Bines, supra, 
59 Va.L.Rev. at 980 n. 235. Certainly, the argument of 
divided loyalty has never successfully been interposed as a 
defense by physicians in such civil malpractice actions. It 
would indeed be ironic if we were to grant counsel an

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45

immunity from suit by the sole person to whom a duty is 
owed.

F ar from preventing the spectre of competing loyalties, the 
grant of immunity here would actually create such conflict 
An appointed counsel stands unique among the categories of 
officials treated by this Court in its immunity cases. At the 
very same time that he is representing the indigent pursuant 
to his appointment, he is maintaining a private practice. 
[Compare the situation of the Federal Public Defender who 
is prohibited from engaging in the private practice of law, see 
18 U.S.C. §3006A(h)(2)(A); Western District Plan, Sec­
tion II C(7)]. His private practice, of course, is potentially a 
source of a common-law malpractice action. There has 
always been the concern that “ the busy lawyer” who 
receives an appointment will render a perfunctory service at 
best. See ABA Standards Relating to Providing Defense 
Services, at 25 (1968). The pay is seldom competitive and 
the clients are seldom a source of future business. How much 
more serious is this concern, however, where only the paying 
portion of his practice may subject the attorney to mal­
practice liability. It calls for little speculation to predict that a 
lawyer, hard pressed for time, will be likely to devote an 
inappropriate percentage of his energies to the portion of his 
practice which carries with it the possibility of liability for 
substandard work. The statutory duty to the indigent is here 
at odds with the natural instinct to protect onself from suit 
Ironically, therefore, the very tension which the grant of 
immunity to judges and prosecutors was adopted to alleviate 
would instead be promoted by a similar grant of immunity to 
a court-appointed counsel. The grave danger that affording 
such immunity would prompt counsel to neglect his ap­
pointed clients in favor of his retained ones is reason enough 
to deny it

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46

A number of lower court decisions have expressed 
concern about two additional problems allegedly posed by 
potential liability: (1) that the spectre of such liability will 
make it difficult to recruit able attorneys to take appoint­
ments, see Minns v. Paul, 542 F.2d 899, 901 (4th Cir. 
1976), cert, denied, 429 U.S. 1102 (1977); and (2) that the 
fear of suit will prompt appointees to press frivolous claims 
for their clients. See Robinson v. Bergstrom, 579 F.2d401, 
409 (7th Cir. 1978).24 Neither concern withstands scrutiny.

The argument that there are not enough able lawyers 
willing to take on appointments that subject them to potential 
malpractice liability ignores several critical considerations. 
Private attorneys are already subject to suit by their retained 
clients. Accordingly, many already have liability insurance 
for protection. There is no reason to believe that such policies 
would not equally cover suits by non-paying clients. Indeed, 
it would not be surprising to find that many of the appointed 
counsel sued to date were represented in such actions by 
counsel provided by their insurer.

Attorneys are certain to continue to be available for 
appointment so long as representation is compensated. 
While the current rates of compensation, $30 per hour for 
court time and $20 per hour for preparation time (18 U. S. C. 
§ 3006A(d)( 1)), may not always be competitive, they are 
certainly adequate to attract many of the burgeoning num­
bers of law school graduates. Cf. Argersingerv. Hamlin, 407 
U.S. 25, 37 n. 7 (1972) [‘’Indeed, there are 18,000 new 
admissions to the bar each year - 3,500 more lawyers than 
are required to fill the ‘estimated 14,500 average annual 
openings’ ”]. The fear that these rates will not attract

24Both Minns and Robinson considered these concerns in the context 
of potential § 1983 liability and not under common-law suits.

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47

“competent counsel” if potential liability accompanies ap­
pointment is equally unsound.25 In the Southern District of 
New York, for example, where a stringent certification 
process was undertaken to select adequate counsel for 
criminal defendants, competition for assignments has been 
rigorous. See Burger, The Special Skills o f  Advocacy, 42 
Fordham L.Rev. 227, 239 n. 24 (1973). As in Argersinger, 
therefore, the argument that a lack of available lawyers 
militates against the protection of a criminal defendant’s 
constitutional rights is factually incorrect. See Scott v. 
Illinois, ___U.S. _ _  , 99 S.Ct. 1158, 1162 (1979).

The argument that the threat of possible suit by clients will 
prompt appointed counsel to press frivolous claims is 
similarly unavailing. The ABA Code of Professional Re­
sponsibility is equally binding on retained and appointed 
counsel, and there is no reason to believe that an attorney 
who refuses to press frivolous claims for his paying clients 
will do otherwise for his indigent ones. See E.C. 7-4: “A 
lawyer is not justified in asserting a position in litigation that 
is frivolous.” If anything, the impetus is greater in the former 
situation where no maximum compensation is set by law. Cf. 
18 U.S.C. §3006A (d)(2) [compensation shall not exceed 
$1000 for each attorney in a felony case]. While it may be 
true that, since he does not pay for counsel’s services, the 
indigent may be less deterred from pressing his attorney to 
present frivolous claims (although his position seems little 
different from the private client who frequently pays for

"Even if factually accurate the argument proves nothing. At present, 
less than 3<C of the federal judicial dollar is utilized for compensating 
appointed counsel. See 1977 Annual Report of the Director of the 
Administrative Office of the United States Courts 50, Appx. II. That this 
financial commitment may be inadequate to attract able lawyers is hardly 
justification for immunizing incompetence.

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48

criminal defense work under an agreed-in-advance set fee 
rather than an hourly rate), it is equally true that the attorney, 
bound, absent unusual circumstances, to (d)(2)’s maximum 
compensatory limits, is less likely to accede to the requests. 
The speculative possibility of having to defend, at some 
unknown time in the future, a suit charging failure to pursue a 
frivolous claim, is hardly likely to prompt the immediate 
expenditure of uncompensated time in the mere hope of 
discouraging such a liability action.26 Realistically, 
therefore, potential liability is unlikely to induce appointed 
counsel to do too much. Far more serious is the possibility 
that immunity, in conjunction with the ceilings on compensa­
tion, will prompt him to do too little.

For all of the foregoing reasons, the creation of immunity 
would pose a danger to the government’s interest, manifested 
by the passage of the Criminal Justice Act, in delivering 
equal justice to the poor. As important as justice, however, is 
the appearance of justice. The American Bar Association 
has long recognized the need to “ remove any basis for an 
implication that defense attorneys under the [appointed] 
system are in any way subject to the control of those who 
appear as their adversaries or before whom they must 
appear.” ABA Standards Relating to Providing Defense 
Services 21(1968). Equally significant is the need to remov e 
any implication that such attorneys carry fewer responsi­
bilities, duties or burdens than their retained counterparts. 
Selective grants of immunity dependent upon the source of 
compensation achieve nothing in this direction. Inequalities

26The fact that compensation under the Criminal Justice Act is usually 
set by the judge before whom the case was tried, 18 U.S.C. § 3006A(d)- 
(4), operates as a further constraint on the overzealousness of appointed 
counsel.

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49

of this nature “ are quickly perceived by those who are being 
provided representation and may encourage cynicism 
toward the justness of the legal system and, ultimately, of 
society itself.” Id. at 19. If the incompetency level of 
appointed counsel is as great as some have perceived, see 
Bazelon, The Defective Assistance o f Counsel, 42 
U.Cinn.L.Rev. 1 (1973), it hardly seems worthy of the legal 
profession’s integrity to build a wall of immunity around it

3. The Interest of Appointed Counsel.

Barr v. Matteo, 360 U.S. 564, 565 (1959), recognizes 
only “ two considerations” of high importance in defining the 
nature and scope of immunity: on the one hand, the 
protection of the individual citizen against pecuniary dam­
age; and on the other, the protection of the public interest. 
That no attention was paid to the plight of the particular 
officer, except insofar as it affected the performance of his 
public duties, is not surprising. In the context of a public 
officer whose duties are owed only to the public, the interests 
of the officer and the public are synonymous. Where, as here, 
the duty imposed is one to the client, it similarly cannot be 
contended that the interest of the attorney presents a third 
factor for consideration. The professional judgment of a 
lawyer must be exercised, within the bounds of the law, 
“ solely for the benefit of his client and free of compromising 
influences and loyalties.” ABA Code o f Professional 
Responsibility E.C. 5-1.

The duty of an attorney to his client has long been 
considered jeopardized by an absence of accountability. 
Accordingly, while a lawyer may insure himself against 
malpractice, he may not “ attempt to exonerate himself from

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50

or limit his liability to his client for his personal malpractice. ” 
ABA Code o f Professional Responsibility D.R. 6-102. As 
the Code appropriately recognizes:

“A lawyer who handles the affairs of his client properly 
has no need to attempt to limit his liability for his 
professional activities and one who does not handle the 
affairs of his client properly should not be permitted to 
do so.” ABA Code o f Professional Responsibility E.C. 
6- 6 .

Quite clearly the Bar has never believed that the spectre of 
potential liability discourages professional discretion in the 
discharge of a lawyer’s duties.27 Indeed, E.C. 6-6 is im­
mediately followed by Canon 7 requiring a lawyer to 
represent his client zealously within the bounds of the law. 
There is nothing inconsistent in these commands. To the 
contrary, they enforce the notion that the attorney’s and 
client’s interests, within the bounds of the law, are identical.

In medical malpractice cases the courts have never 
recognized the claim that zealous and fearless protection of a 
patient’s health requires freedom from accountability by civil 
suit. The interest of physician and patient in the treatment of 
the latter has instead been handled as congruous. The mere 
fact that the source of the physician’s compensation may 
have been government Medicaid funds has never called for a 
different rule.28 To treat the legal profession otherwise would 
be neither prudentially desirable nor rationally defensible.

21In any event, what took place in the instant case cannot be deemed an 
exercise of professional discretion even by the most liberal interpretation 
of that term.

28Compare Congressional treatment of Armed Forces medical 
personnel, 10 U.S.C. § 1089 (1977) [an action against the United States 
is the sole remedy for injuries resulting from the negligent or wrongful 
acts or omissions of such medical personnel].

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51

III.

AFFORDING A FEDERAL COMMON- 
LAW IMMUNITY TO ATTORNEYS AP­
POINTED TO REPRESENT INDIGENTS 
W HERE NO SUCH IMMUNITY IS AF­
FORDED RETAINED COUNSEL WOULD 
CONSTITUTE A CLASSIFICATION 
BASED SOLELY ON WEALTH PROHIB­
ITED BY THE EQUAL PROTECTION 
COMPONENT OF THE FIFTH AMEND­
MENT.29

In formulating or enforcing the common law, courts are 
bound by the restrictions imposed by the Constitution. See 
Erie R  Co. v. Tompkins, 304 U.S. 64 (1938); Shelley v. 
Kraemer, 334 U.S. 1, 17-18 (1948). One of the most 
fundamental of those restrictions is that no person may be 
denied the equal protection of the laws. That the “ law” under 
consideration may be judicially composed rather than legis­
latively conceived is no justification for different standards. 
See Shelley v. Kraemer, supra.

American common law has never accorded immunity to 
retained criminal defense counsel. See, e.g., Lamore v. 
Laughlin, 159 F.2d 463 (D.C. Cir. 1947) [Compare the 
current English system which immunizes barristers but not 
solicitors. Rondel v. Worsley, 1 A.C. 191 (H.L. 1969)]. The 
creation and application of a different rule for those paid to 
represent indigent criminal defendants would result in the 
denial, solely on the basis of poverty, of two inherently

29This equal protection argument was raised below (A. 31), implicitly 
rejected by the majority (see dissent of Roberts, J. at A. 57) and is well 
within the confines of the issue on which certiorari was granted. See also 
Petition for Certiorari at 6.

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52

fundamental rights: the right to the effective assistance of 
counsel and the right of access to the courts. See dissent of 
Roberts, J. below (A. 57). The first of these is prophylactic. 
The second is compensatory.

A. The Grant of Absolute Immunity Establishes a 
Lower Standard of Care For Appointed 
Counsel Than for Retained Counsel.

“There can be no equal justice where the kind of trial a 
man gets depends on the amount of money he has.” Griffin v. 
Illinois, 351 U.S. 12,19 (1956). There is little that is more 
critical in this respect than the right to the assistance of 
counsel. Gideon v. Wainwright, 372 U.S. 335 (1963). The 
mere appointment of counsel does not alone suffice. The 
circumstances of the appointment may be as important as the 
assignment itself, Powell v. Alabama, 287 U.S. 45,71 
(1932), for the right to counsel means nothing if it does not 
mean the right to effective counsel.McMann v. Richardson, 
397 U.S. 759, 771 n. 14 (1970). Too many important 
constitutional rights may be lost by the actions of one’s 
attorney to demand anything but an uncompromising, com­
petent lawyer with undivided loyalty to his client. Anything 
less simply cannot comport with the requirements of the 
Sixth Amendment

An individual with financial means can hire counsel of his 
choosing, substitute new counsel if he is dissatisfied and sue 
him if his incompetence causes loss of property or liberty. 
The Criminal Justice Act denies the indigent the first of 
these, severely limits the opportunity for the second and now 
it would seem, if the lower court is to prevail, the third shall 
be lost as well. A counsel without accountability poses far 
greater dangers of ineffectiveness. It is just such a concern

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53

that prompted D .R  6-102 of the ABA Code of Professional 
Responsibility, prohibiting retained counsel from entering 
into a contractual arrangement with his client “ to exonerate 
himself from or limit his liability to his client for his personal 
malpractice.” To allow a different situation to prevail with 
appointed counsel would constitute a denial of equal pro­
tection. That immunity in the latter situation would be 
imposed by common law while the Code’s prohibition is 
solely against client-granted immunity hardly provides a 
rational distinction.

Certainly this differential treatment could not be what the 
Criminal Justice Act Plan of the Western District intended 
when it provided in Section V E(7):

“Attorneys appointed pursuant to any provision of this 
Plan shall conform to the highest standards of pro­
fessional conduct, including but not limited to the 
provisions of the American Bar Association’s draft code 
of Professional Responsibility.”

Neither does it seem that this is what the Chief Justice had in 
mind when he wrote that appointed counsel have ‘’exactly 
the same duties and burdens and responsibiliies as the highly 
paid, paid-in-advance criminal defense lawyer.” Burger, 
Counsel fo r  the Prosecution and Defense - Their Roles 
Under the Minimum Standards, 8 Amer.Crim. LawQ. 1,6 
(1969) [emphasis supplied]. No burden would seem more 
significant than being held accountable for one’s omissions 
and commissions.

It is, of course, fair to presume that many, if not most, 
appointed counsel carry out their court-ordered responsi­
bilities as they would their regular practice despite the 
differential in pay. That they would continue to do so were 
absolute immunity conferred cannot, however, be similarly

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54

presumed.30 The complete loss of accountability is bound to 
take its toll. A habeas corpus petition alleging ineffective 
assistance of counsel, even if granted, imposes no sanctions. 
Disciplinary proceedings are infrequent and generally in­
effective as a deterrent to others. The prophylactic need for 
potential liability therefore is essential. As Professor Tribe 
has recognized, lawyers are “ likely to be somewhat more 
obtuse to the merits of indigents’ claims than to those of 
nonindigents,” L. Tribe, American Constitutional Law  
§16-36 at 1105 (1978). Counsel for indigents generally 
need an “ extra push’ ’ in order to ensure that they pursue their 
clients’ interests as zealously as would retained counsel. Id. 
See also Anders v. California, 386 U.S. 738 (1967). The 
need for an “extra push” here is concededly not con­
stitutionally compelled. To fail to provide the same push that 
is experienced by retained counsel would, however, contra­
vene the requirements of equal protection.

B. The Right to Compensatory Relief For the 
Deprivation of Liberty Suffered as a Con­
sequence of Incompetent Counsel Cannot Be 
Made To Depend Solely on the Financial 
Status of the Injured Party.

A government cannot deny access, simply because of 
one’s poverty, to a “judicial proceeding [that is] the only 
effective means of resolving the dispute at hand.” Boddie v„ 
Connecticut, 401 U.S. 371, 376 (1971). Yet that is exactly 
what would transpire if the absolute immunity sought by

30This is especially so where the attorney would, as here, remain liable 
in malpractice on the “private” side of his practice. See Point II B 2, 
supra.

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55

Ackerman were to be granted. Far more is involved here than 
the mere existence of a small filing fee. Cf. United States v. 
Kras, 409 U.S. 434 (1973); Ortwein v. Schwab, 410 U.S. 
656 (1973). More indeed is involved than even the sub­
stantial impediments to court access struck down by this 
Court in Bounds v. Smith, 430 U.S. 817 (1977) [state’s 
failure to provide prison legal research facilities] and 
Johnson v. Avery, 393 U.S. 483 (1969) [prison regulations 
prohibiting inmates from assisting other prisoners in prepa­
ration of legal papers]. In short, we deal here with a total 
closing of the courtroom door.

There is, of course, no more a constitutional right to sue for 
malpractice than there is to sue for wrongful death. Once such 
an action has been accorded by statute or common law, 
however, “ it cannot be granted to some litigants and 
capriciously or arbitrarily denied to others without violating 
the Equal Protection Clause.” Lindsey v. Normet, 405 U.S. 
56,77 (1972). See also Levy v. Louisiana, 391 U.S. 68 
(1968); Glona v. American Guarantee Co., 391 U.S. 73 
(1968). Such a denial is all the more offensive when no 
alternative remedy is available.

Historically, damages have been regarded as the ordinary 
remedy for an invasion of personal interests in liberty,” 
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 
388, 395 (1971). A defendant who has lost his liberty by 
virtue of his appointed counsel’s incompetence often has no 
other remedy. A habeas corpus petition is merely pro­
spective in nature and provides no compensatory relief. No 
action lies against the Government under the Federal Tort 
Claims Act. Jones v. Hadican, 552 F.2d249, 251 n. 4 (8th 
Cir.), cert, denied, 431 U.S. 941 (1977). Cf. 10 U.S.C. 
§1089 (1977). [creating an exclusive action against the 
United States for the negligence of Armed Forces medical

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56

personnel]. Finally, no action would lie directly under the
United States Constitution. Housand v. Heiman,____F.2d
____(2d Cir. March 20, 1979), slip op. 1827 1829 n.l
[Criminal Justice Act lawyer does not act under color of 
federal law].

Absolute immunity deprives an indigent of the only 
“effective means” of recovering for liberty lost by virtue of 
incompetent counsel. In contrast, the person with means to 
retain counsel is permitted free access to the courts for the 
identical injury. Assuredly, such classification requires some 
assertion of a compelling or at least significant governmental 
reason.31 Yet not even a rational basis justifying this 
distinction appears evident.

C. No Rational Basis Exists For Having The 
Grant of Immunity to Defense Counsel De­
pend Upon the Source of Compensation.

A retained defense counsel in a federal criminal prosecution 
may be sued in a subsequent state common-law action for 
malpractice committed in preparing and conducting the 
defense. No legitimate reason exists for treating appointed 
counsel differently. All of the arguments that have been 
pressed for the grant of absolute immunity apply with equal 
force to retained counsel. He is similarly a part of the

"Because no statute is being assailed here, the concomitant need for 
deference to the legislative process is absent. The traditional reluctance 
to interfere with the choices made by the people’s representatives has no 
place where common-law doctrines are the subject of attack. Ac­
cordingly, the powerful presumption of validity prompted by this 
deferential attitude to the majoritarian ideal dissipates when it is 
judicially composed doctrines that are being scrutinized.

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57

“judicial process,” a participant in a federal criminal 
prosecution, and an “officer of the court.” He certainly has 
no less of a need to exercise his “full professionalism.” In 
Minns v. Paul, 542 F.2d 899 (4th Cir. 1976), the court 
wrote of the need for “unfettered discretion.. .to decline to 
press the frivolous, to assign priorities between indigent 
litigants, and to make strategic decisions with regard to a 
single litigant as to how best his interests may be advanced.” 
Id. at 901. The importance of identifying and discarding 
claims without merit; of dividing time between clients; and of 
deciding how best to protect an individual client’s interest is 
not limited to the representation of indigents. All lawyers 
confront the same difficulties. All face the same ethical 
dilemmas. All are forced to deal with the same problems of 
judgment.

Minns, supra, also suggested as justification the need to 
recruit and hold able lawyers to represent indigents. Even if it 
were true that the potential liability would “ scare away” 
some competent attorneys,32 it seems far more likely that it 
would be the incompetent ones who would be prompted to 
avoid appointed cases. If lawyers know they can be sued, 
they will not take on cases they know they are not qualified to 
handle. In any event, the grant of immunity in this selective 
manner is not a rational means to encourage the increased 
participation of competent counsel. By creating, in the 
appointed counsel, a person with potential liability in only a 
portion of his practice, the grant of immunity poses far 
greater danger to the level of representation under the 
Criminal Justice Act than is posed by the speculative 
“ scaring off”  of a small number of able attorneys. Without 
immunity those who do seek appointments are likely to be

nSee Point II B 2, supra for further treatment of this contention.

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58

zealous advocates. With it, the appointees will all too 
frequently neglect that portion of their practice that holds 
them unaccountable. Any minimal increase in numbers, 
therefore, will be far offset by the decline in quality of 
participation.

If the Criminal Justice Act is unable to attract a sufficient 
number of able attorneys (and, at least in the Southern 
District of New York, this does not seem to be the case, see 
Burger, The Special Skills o f Advocacy, 42 Fordham L.Rev. 
227, 239 n. 24 (1973)) immunity from liability for in­
competent conduct is, at best, an irrational means to remedy 
the problem.33

When the articulated justifications are swept aside as 
facade, all that remains is a fear that the indigent will be more 
litigious and more likely to press frivolous claims. Pre­
sumably such a rationale would also justify minimum income 
levels for the filing of §1983 claims. Our Constitution 
prohibits such invidious generalizations, see James v. 
Strange, 407 U.S. 128 (1972); Lindsey v. Normet, 405 
U.S. 56 (1972), and this Court, as the ultimate defender of 
the Constitution, ought not allow them to serve as the basis 
for a discriminatory common-law doctrine of immunity.

3 3Among the rational approaches to dealing with a low level of 
participation by the bar are reasonable rates of compensation, ABA 
Standards Relating to Providing Defense Services, at 30 (1968) and 
enforcing mandatory participation by members of the bar. Note, 
Providing Counsel for the Indigent-Accused: The Criminal Justice Act, 
12 Amer. Crim. L. Rev. 789, 813 (1975). See also United States v. 
Dillon, 346 F.2d 633, 635 (9th Cir. 1965), cert, denied, 382 U.S. 978 
(1966) [representation of indigents described as “a condition under 
which lawyers are licensed to practice as officers of the court”].

58



59

CONCLUSION

The judgment of the Pennsylvania Supreme Court should 
be reversed and the case remanded.

Respectfully submitted,

/s/JULIAN N. EULE 
JULIAN N. EULE
Court-appointed 
Counsel for Petitioner

May 1979

59



IN  TH E

(Eaurt of %  Imieft States
O ctober T er m , 1978

No. 78-5981

F rancis R ic k  F erri,
P e t i t io n e r , 

v.

D a n iel  A ck erm an ,
R e s p o n d e n t.

On Writ of Certiorari to the 
Supreme Court of Pennsylvania

BRIEF FOR THE RESPONDENT

N ed J .  N akles 
1714 Lincoln Avenue 
Latrobe, Pa. 15650

J o h n  P . A rness 
D avid J .  H ensler 
A llen  R . S nyder 
E lliot M. M incberg

H ogan & H artson
815 Connecticut Ave., N.W.
Washington, D.C. 20006

C o u n se l f o r  R e s p o n d e n t



TABLE OF CONTENTS
Page

Table of Citations ........................................................ iii

Statement ....................    1

Summary of Argument .................................................. 6
I. The Legal History and Policy Interests U n ­

derlying Both the Immunity Doctrine and the 
Criminal Justice System Support the Estab­
lished Principle of Immunity from Tort Lia­
bility of Government-Sponsored Criminal De­
fense Attorneys .................................................. 11
A. The History of the Immunity Doctrine and

of the Criminal Justice System Supports the 
Established Principle of Immunity for Gov­
ernment-Sponsored Defense Counsel .........  12
1. Common law and constitutional history .. 13
2. The Criminal Justice A c t.......................  19
3. Judicial recognition of immunity for gov­

ernment-sponsored defense counsel.......  23
B. The Policy Interests Underlying the Immun­

ity Doctrine and the Criminal Justice System 
Support the Established Principle of Immun­
ity for Government-Sponsored Defense Coun­
sel ..................................................................  26
1. The unique status of government-spon­

sored participants in the criminal justice 
system ..........    26

2. The interests of the indigent criminal
defendant .................................................  32

3. The interests of the public and the ad­
ministration of justice............................   37

C. Available Alternatives to Malpractice Lia­
bility Provide Superior Methods for Ensur­
ing the Bight to Effective Assistance of 
Counsel .............................................  44

63



Table of Contents Continuedii
Page

1. Post-conviction remedies ........................ 45
2. Judicial and professional discipline and

supervision .................................. .......... 50
II. Equal Protection Concepts Do Not Bar Ap­

plication of the Official Immunity Doctrine 
to Government-Sponsored Defense Counsel .. 53
A. The Decision Below Did Not Infringe Any

“Fundamental Right” or Create a “Suspect 
Classification” ..............................    54

B. The Doctrine of Immunity for Government-
Sponsored Defense Attorneys Promotes Le­
gitimate and Important Governmental In­
terests ............................................................  60

Conclusion ...........................................................   62

Appendix A (Docket Sheet in U nited  S ta te s  v. F erri,
Crim. No. 74-277, W.D. Pa.) ....... ..........  la

Appendix B (Unpublished opinion in Jo n e s  v. W arlick,
No. 2006 (W.D.N.C. 1965), a f f ’d, 364 F.2d 
828 (4th Cir. 1966) ............................  12a

64



TABLE OF CITATIONS

C ases :

B a rr  v. M atteo , 360 U.S. 564 (1959) ...........................  16
B a u ers  v. H eisel, 361 F.2d 581 (3d Cir. 1966), cert, de­

nied, 386 U.S. 1021 (1967) ................................ . 16
B ea sley  v. U nited  S ta te s , 491 F.2d 687 (6th Cir. 1974) 45 
B ea ver  v. C arey, 426 F. Supp. 301 (N.D. 111. 1977) . . .  24
B oddie  v. C onnecticut, 401 U.S. 371 (1971)................  57
B ounds  v. S m ith , 430 U.S. 817 (1977) .......................  57
B ra d ley  v. F isher, 80 U.S. (13 Wall.) 335 (1872) . .14,15, 30 
B ro w n  v. Charles, 309 F. Supp. 817 (E.D. Wis. 1970) .. 17
B ro ivn  v. Jo seph , 463 F.2d 1046 (3d Cir. 1972), cert.

denied, 412 U.S. 950 (1973) ....................22,24,25,27,
31, 35, 38,49

B u ck  v. U nited  S ta te s , 466 F.2d 481 (10th Cir. 1972) .. 57 
B u rkes  v. Callion, 433 F.2d 318 (9th Cir. 1970), cert.

denied, 403 U.S. 908 (1971) ................................  17
B u tz  v. Econom ou, 438 U.S. 478 (1978) .............6, 8,11,14,

15 16 17 25 27 30 33 
C aruth  v. O eddes, 443 F. Supp. 1295 (N.D. 111. 1978). .12,

24,30,36,37
C lark v. S ta te  o f W ash ing ton , 366 F.2d 678 (9th Cir.

1966) ......................................................................  17
Coles v. P eyton , 389 F.2d 224 (4th Cir. 1968), cert, de­

nied, 393 U.S. 849 (1969) ...................................... 46
Crane v. H ahlo, 258 U.S. 142 (1922) ................ .......... 55
C ross v. U nited  S ta te s , 392 F.2d 360 (8th Cir. 1968) .. 36
D andridge v. W illiam s, 397 U.S. 471 (1970) ..............  27
D avis v. B om ar, 344 F.2d 84 (6th Cir.), cert, denied,

382 U.S. 883 (1965) ............................................... 48
D avis v. S la y to n , 353 F. Supp. 571 (W.D. Va. 1973) .. 49
D ieu  v. N orton , 411 F.2d 761 (7th Cir. 1969) ............. 17
D uke P ow er Co. v. C arolina E n v iro n m en ta l S tu d y

Group, Inc., 438 U.S. 59 (1978) ...........................  56
E h n  v. P rice, 372 F. Supp. 151 (N.D. 111. 1974)....... 24, 35
F anale v. S heehy, 385 F.2d 866 (2d Cir. 1967) ...........  16
F lagg B ros., Inc. v. B rooks, 436 U.S. 149 (1978).......  22
F lorida  B a r  v. D ingle, 220 So. 2d 9 (Fla. 1969) .........  50
F loyd  v. B a rker, 12 Coke 23, 77 Eng. Rep. 1305 (1608) 14,

17
F o ste r  v. M acB ride, 521 F.2d 1304 (9th Cir. 1975) . . .  21
F ried m a n  v. Y ounger, 282 F. Supp. 710 (C.D, Cal.

iii
Page

1968) .....................................................................  17
F u ller  v. Oregon, 417 U.S. 40 (1974) ....................... 10,58
Gagnon v. Scarpelli, 411 U.S. 778 (1973) .................... 18

65



Gideon v. W a in w rig h t, 372 U.S. 335 (1963)................  18
G insberg  v. S te rn , 125 F. Supp. 596 (W.D. Pa. 1954),

a ff’d, 225 F.2d 245 (3d Cir. 1955) ........................ 17
G ranger v. M arek, 583 F.2d 781 (6th Cir. 1978)....... .15,16
G riffith  v. S tin ka rd , 146 Ind. 117, 44 N.E. 1001 (1896) . 15
G roenvelt v. B urw ell, 91 Eng. Eep. 1202 (1696).........  14
H aines  v. K ern er , 404 U.S. 519 (1972) ........................ 30
H a m p to n  v. M ow  S u n  W ong, 426 U.S. 88 (1976).........  53
H arm on  v. S u p erio r  C ourt, 329 F.2d 154 (9th Cir.

1964) ....................................................................... 17
H aw es v. Club E cu estre  E l  C om andante, 535 F.2d 140

(1st Cir. 1976) ........................................................  54
H o a r  v. W ood, 44 Mass. 193 (1841) ....... ................... 13
H ousand  v. H eim an, No. 78-2046 (2d Cir., March 20,

H ow ard  v. 'Lyons, 360 U.S. 593 (1959) ....... ........... ’ 12
H u n d er  v. M athis, 40 Ind. 356 (1872) .........................  17
Im b ler  v. P achtm an, 424 U.S. 409 (1976)................. passim
I n  re M artin , 30 App. Div. 2d 361, 292 N.Y.S.2d 328

(1968) ..................................   50
I n  re M cD erm it, 86 N.J. 17, 114 A. 144 (1921) .........  50
Ja m es  v. V altierra , 403 U.S. 137 (1971) ....................  59
J e ffe r so n  v. H ackney , 406 U.S. 535 (1972)................ 59, 60
J o h n  v. H u rt, 489 F.2d 786 (7th Cir. 1973)................ 24, 27
Jo h n so n  v. Schlarb, 7 Wash. 2d 528, 110 P.2d 190

(1941) ............................    13
Jo h n so n  v. U nited  S ta te s , 328 F.2d 605 (5th Cir. 1964) 36
Jo h n so n  v. Z erb st, 304 U.S. 458 (1938) ...................... 18
Jo n es  v. W arlick , 364 F.2d 828 (4th Cir. 1966) ........... 23
K a rn e y  v. V an  N ess, No. 1186-70 (D.N.J., March 24,

1971) ....................................................................... 24
K isse ll v. B reskow , 579 F.2d 425 (7th Cir. 1978).......  17
K itt le r  v. K elsch , 56 ND. 227, 216 N.W. 898 (1927) .. 16
K o sta l v. S to n er, 292 F.2d 492 (10th Cir. 1961), cert.

denied, 369 U.S. 868 (1962) ....................................  16
K re m e r  v. S tew a r t, 378 F. Supp. 1195 (E.D. Pa. 1974) 17 
L am ore  v. Laughlin , 82 U.S. App. D.C. 3, 159 F.2d 463

(1947) .............................................................  48
L eong  Y a u  v. C arden, 23 Hawaii 362 (1916) .............  16
L o ftis  v. E ste lle , 515 F.2d 872 (5th Cir. 1975) . . . . . . .  49
L oving  v. V irg in ia , 388 U.S. 1 (1967) .........................  54
M aher v. R oe, 432 U.S. 464 (1977) ................................. 59
M a rtin  v. H all, 20 Cal. App. 3d 414, 97 Cal. Eptr. 730 

(1971) ..............................................................34,45,47

iv Table of Citations Continued
Page

66



Table of Citations Continued v
Page

M athew s  v. D eC astro, 421 U.S, 181 (1976)................ 53, 60
M cC ray v. M aryland , 456 F.2d 1 (4th Cir. 1972).........  17
M cG owan v. M aryland , 366 U.S. 420 (1961) ............... 60
M cM ann  v. R ichardson , 397 U.S. 759 (1970) ..............  52
M iller v. B arilla , 549 F.2d 648 (9th Cir. 1977) .. .24, 25, 26,

31, 34, 37, 43
M inns  v. P aul, 542 F.2d 899 (4th Cir. 1976), cert, de­

nied, 429 U.S. 1102 (1977) . . . .  12, 20,22, 24,25, 27, 28, 
29,30, 32, 34, 36,37,40, 42,43,49, 50 

M o ity  v. L ou isiana  S ta te  B a r  A s s ’n, 414 F. Supp. 180 
(E.D. La.), a ff’d, 537 F.2d 1141 (5th Cir. 1976) .. 17 

M ondou  v. N ew  Y o rk , N ew  H a ven  and H a r tfo rd  R a il­
road Co., 223 U.S. 1 (1912) ..................................  56

M oore v. U nited  S ta te s , 432 F.2d 730 (3d Cir. 1970). .45,46,
47

M orrow  v. Ig leburger, 67 F.R.D. 675 (S.D. Ohio 1974) 17, 24
M unn  v. Illino is, 94 U.S. 113 (1876) ...........................  56
M u n ster  v. L am b, 11 Q.B.D. 588, [1881-85] All E.R.

791 (1883) .............................................................  13
N ew  O rleans v. D ukes, 427 U.S. 297 (1976) .......... 54
O’B rien  v. C olbath, 465 F.2d 358 (5th Cir. 1972) . . . . .  24
O rtw ein  v. Schw ab, 410 U.S. 656 (1973) ....................57, 58
People v. L ang , 11 Cal. 3d 134, 113 Cal. Rptr. 9 (1974) 47 
P e tty  v. G eneral Acc. F ire  <& L ife  A ssu r . Corp., 365

F.2d 419 (3d Cir. 1966) .........................................  13
P ierson  v. R a y , 386 U.S. 547 (1967) ...........................  15
P r it t  v. Johnson , 264 F. Supp. 167 (M.D. Pa. 1967) .. 17
P rocun ier v. N a va re tte , 434 U.S. 555 (1978) ..............  27
R eese  v. D anforth , 241 Pa. Super. 604, 360 A.2d 629

(1976)    12,24
R hodes v. M eyer, 334 F.2d 709 (8th Cir.), cert, denied,

379 U.S. 915 (1964) .............................................. 17
R obichaud  v. R onan, 351 F.2d 533 (9th Cir. 1965) . . . .  17 
R obinson  v. B erg stro m , 579 F.2d 401 (7th Cir. 1978) 24, 27
R ondel v. W orsley , 3 All E.R. 993 (1967) . . .  .14, 33, 35,43 
Ropico, Inc. v. C ity  o f N ew  Y o rk , 425 F. Supp. 970

(S.D.N.Y. 1976) .................................................. . 57
R o ss  v. R itten h o u se , 2 Dali. 160 (Pa. 1792) ............... 14
S o lty s  v. A dam s, 465 F.2d 1023 (2d Cir. 1972) . . . . . . .  46
S a n  A n to n io  In dependen t School D istr ic t v. R odriguez,

411 U.S. 1 (1973) ................................................56,59
Schaedler v. R eed ing  E agle Publication , Inc., 370 F.2d

795 (3d Cir. 1967) ................................................  30
Scheuer v. R hodes, 415 U.S. 232 (1974) ....................26, 27

67



Sem m es  v. Collins, 120 Miss. 265, 82 So. 145 (1919) . . .  16
Shap iro  v. T hom pson , 394 U.S. 618 (1969) ................  54
S h a p ley  v. G reen, 465 F.2d 874 (5th Cir. 1972) .........  24
Sm allw ood  v. U nited S ta te s , 358 F. Supp. 398 (E.D.

Mo.), a ff’d, 486 F.2d 1407 (8th Cir. 1973)............. 24
S m ith  v. P arm an , 101 Kans. 115, 165 P. 663 (1917) . . .  16 
S p r in g  v. C onstantino , 362 A.2d 871 (Conn. 1975) . . .  25
S ta te  v. T hom as, 203 S.E.2d 445 (W. Va. 1974).........  46
S te w a r t v. M innick, 409 F.2d 826 (9th Cir. 1969).......  17
S tu m p  v. S p a rkm a n , 435 U.S. 349 (1978) ..................  15
S u llen s  v. C arroll, 446 F.2d 1392 (5th Cir. 1971).........  24
T a sh y  v. P eek, 396 F. Supp. 952 (W.D. Ark. 1975) . .25, 35
T u rp en  v. B ooth , 56 Cal. 65 (1880) .............. 17
T y le r  v. W itko w sk i, 511 F.2d 449 (7th Cir. 1975).......  16
U nited  S ta te s  v. D eC oster, 159 U.S, App. D.C. 326, 487

F.2d 1197 (1973) ................................................. . 45
U nited  S ta te s  v. D eF reita s, 410 F. Supp. 241 (D.N.J. 

1976), a ff ’d, 556 F.2d 569 (3d Cir.), cert, denied,
434 U.S. 847 (1977) ..............................................  40

U nited  S ta te s  v. E a ste r , 539 F.2d 663 (8th Cir. 1976) .. 45 
U nited  S ta te s  v. H a rp er, 311 F.Supp. 1072 (D.D.C.

1970) ..................................................................... 40,41
U nited  S ta te s  v. K ra s , 409 U.S. 434 (1973)................ 58, 59
U nited  S ta te s  v. M oore, 174 U.S. App. D.C. 113, 529

F.2d 355 (1976) ..............    45
U nited  S ta te s  v. N akam ura , 577 F.2d 485 (9th Cir.

1978) ....................................................................... 31
U nited  S ta te s  v. R ivera , 473 F.2d 1372 (9th Cir. 1972) 52 
U nited  S ta te s  v. R ountree , 254 F. Supp. 1009 (S.D.

N.Y. 1966) .............................................................  31
U nited  S ta te s  v. S m ith , 436 F.2d 1130 (9th Cir. 1970).. 50 
U nited  S ta te s  v. W illiam s, 411 F. Supp. 854 (S.D.N.Y.

1976) ..................................................................... 51,52
U nited  S ta te s  ex  rel. Jo h n so n  v. Sp ec ter , 262 F. Supp.

113 (E.D. Pa. 1967) ................................................ 17
U nited  S ta te s  ex  rel. W ood  v. B lacker, 335 F. Supp. 43

(D.N.J. 1971) ....................    25
U.S. G eneral, Inc. v. Schroeder, 400 F. Supp. 713 (E.D.

Wis. 1975) ....................................   24
Vance v. R obinson , 292 F. Supp. 786 (W.D.N.C. 1968) 47
W a its  v. M cGowan, 516 F.2d 203 (3d Cir. 1975).......  24
W a lker  v. K ru se , 484 F.2d 802 (7th Cir. 1973) . .19, 24, 25,

27 34 47 48
W a tts  v. G erking, 111 Ore. 654, 228 P. 135 (1924)__  ’ 16

vi Table of Citations Continued
Page

68



Table of Citations Continued

W einberger  v. Salfi, 422 U.S. 749 (1975) ............ 60
W einberger v. W iesen fe ld , 420 U.S. 636 (1975) .........  53
W ilk in s  v. U nited  S ta te s , 47 U.S.L.W. 5714 (U.S., Apr.

30, 1979) ....................... ...................................... 49,51
W ood  v. S tr ick la n d , 420 U.S. 308 (1975) ................ 26,27
Y aselli v. G off, 275 U.S. 503 (1927) (per curiam ), a f f’g

12 F.2d 396 (2d Cir. 1926) ....................................  16
Y a te s  v. L ansing , 5 Johns. 282 (N.Y. 1810) ................  14

Miscellaneous :
Administrative Office of the U.S. Courts, A nnua l R e ­

p o rt o f the D irector (1976) ..................................  29
A m en d m en ts  to the C rim inal Ju s tice  A c t o f 1964: 

H earings on S . 1461 B e fo re  the Subcom m . on Con­
s titu tio n a l R ig h ts  o f the Sen a te  Comm, on the  
Ju d ic ia ry , 91st Cong. 2d Sess (1969) ..................  31

American Bar Association, Code o f P ro fessiona l R e ­
sponsib ility  (1977) ............................................ 35,43

American Bar Association, S ta n d a rd s R ela ting  to the 
P rosecu tion  F unction  and the D efense F unction  
(approved draft, 1971) . . .  .18, 28, 29, 32, 33,34, 37, 38,

40,42,43, 44
Annot., 26 A.L.R. Fed. 218 (1976) ..............................  46
Annot., 53 A.L.R.3d 731 (1973) .................................  48
Austern, Rezneck, et al., R ep o rt on C rim inal D efense  

Serv ices  in  D.C. by Jo in t C om m ittee o f Jud icia l 
C onference o f D.C. C ircuit and D.C. B a r  (April, 
1975) ................    .31,32,41

Boyer & Conner, Lega l M alpractice and C om pulsory  
Client P ro tection , 29 Hastings L.J. 835 (1978) . . .  41

Burger, Counsel fo r  the P rosecution  and D efense— 
T h eir  R oles U nder the M in im um  S tandards, 8 
Amer. Crim. L.Q. 2 (1969) ..................... 29,33,34,40

Burger, T he Special S k ills  o f A dvocacy, 42 Fordham 
L.R. 227 (1973) ...................................    52

110 Cong. Ree. H418 (daily ed., Jan. 15, 1964) ........... 39
110 Cong. Rec. H421 (daily ed., Jan. 15,1964)........... 20

vii
Page

69



Table of Citations Continued

110 Cong. Rec. H428 (daily ed., Jan. 15, 1964) .31,41
115 Cong. Rec. S946 (daily ed., Jan. 27, 1969) .. 41
115 Cong. Rec. S2576 (daily ed., March 10, 1969) .. .22, 39
116 Cong. Rec. H9545 (daily ed., Oct. 5, 1970) . . . . . .22,  39
Criminal Justice Act of 1963: Hearings on 8.63 and 

S.1057 before the Senate Comm, on the Judiciary,
88th Cong., 1st Sess. (1963) ...............................  19

viii
Page

Criminal Justice Act of 1964, 18 U.S.C. § 3006A . .2,19, 38,
52

Federal Tort Claims Act, 28 U.S.C. § 1346(b) ...........  21
1 F. Harper & F. James, Law of Torts (1956)........... 13
Note, Caseload C eilings on In d ig en t D efense S y s te m s  

To E n su re  E ffe c tiv e  A ssis ta n ce  o f Counsel, 43 
Cinn. L. Rev. 185 (1974) .............. ...................... 32

Note, W o rk  O verload and D e fender B u rn o u t, 35 
NLADA Briefcase 5 (1977) ................................. 32

Office of Bar Counsel, District of Columbia Court of 
Appeals Board on Professional Responsibility, 
A n n u a l R ep o rt (1978) .......................................... 50

Prisoner Civil Rights Committee, Federal Judicial 
Center, R ecom m ended  P rocedures fo r  H andling  
P riso n er C ivil R ig h ts  Cases in  F edera l C ourt
(tent, report No. 2, 1977) ......................................  30

1 P ro f. L iab. R p tr ., No. 11 (May 1977) .................... 41
P ro fessiona l R e sp o n s ib ility : R e p o r t o f the J o in t Con­

ference, 44 A.B.A.J. 1159 (1958) .........................  18
S. Rep. No. 91-790, 91st Cong., 2d Sess. (1970) . . . . . .31,  38
52 Temple L.Q. 102 (1979) ......................................... 15
18 U.S.C. § 3282 .......................................................... 4
26 U.S.C. § 6531 ...........................................................  4,5
42 U.S.C. § 1983 ...............................................15,24,25,45

70



IN  THE
(Eourt of %  United States

O ctober T er m , 1978

No. 78-5981

F rancis R ic k  F erri,
P e t i t io n e r ,

v.

D a n iel  A ck erm an ,
R e s p o n d e n t.

On Writ of Certiorari to the 
Supreme Court oi Pennsylvania

BRIEF FOR THE RESPONDENT

STATEMENT

On August 28, 1974, a United States Grand Jury  
for the W estern District of Pennsylvania returned an 
indictment charging Petitioner Francis Ferri and two 
others with, in te r  a lia , constructing a bomb and plac­
ing it in the car of a business associate.1 Included 
among the nine counts of the indictment were three 
that involved violations of federal tax laws pertaining 
to firearms and explosives.2

1 The relevant portions of the indictment are set forth in Ap­
pendix B to the Brief for the Petitioner (“ Pet. Brief” ), at 2b-6b.

2 See Pet. Brief at 4b-6b.

71



2

Pursuant to the Criminal Justice Act of 1964, 18 
U.S.C. § 3006A, the court appointed Respondent Dan­
iel Ackerman to serve as F e rr i’s counsel.3 Following 
extensive pre-trial proceedings, see  pp. 2a-9a, in fr a ,  
Respondent represented F erri in a twelve-day jury  
trial, which resulted in a finding that Ferri was guilty 
on all counts. I d .  at 11a. The trial judge subsequently 
sentenced F erri to twenty years on the conspiracy and 
bombing counts, plus an additional ten years on the 
tax counts of the indictment. Pet. B rief at 7b.

On March 4, 1976, while incarcerated at the federal 
prison in Lewisburg, Pennsylvania, see  App. 6,4 Ferri 
filed a “ Complaint in Negligence” against Ackerman 
in the Pennsylvania Court of Common Pleas, alleging 
malpractice by Respondent in his representation of

3 Prior to Respondent Ackerman’s appointment, Petitioner had 
been represented on these charges by two other attorneys. One of 
those attorneys who represented Petitioner during certain pre­
indictment proceedings was Donald Rosetti, Esquire. Subsequent 
to Mr. Rosetti’s withdrawal as counsel, Ferri brought a damage 
action against Rosetti in a Pennsylvania state court alleging legal 
malpractice. The judgment of the Supreme Court of Pennsylvania 
affirming dismissal of that malpractice action is the object of Mr. 
Ferri’s Petition for a Writ of Certiorari in No. 78-6153, presently 
pending before this Court. Mr. Ferri’s other prior attorney was 
H. David Rothman, Esquire, who on December 2, 1974, filed with 
the District Court a motion for leave to withdraw as Ferri’s 
counsel. Following a hearing, that motion was granted on De­
cember 13, 1974, and on the same date Respondent was appointed 
by the Court as Ferri’s new counsel.

The above facts are revealed by the docket entries in the crimi­
nal proceedings against Petitioner, a copy of which is attached to 
this Brief as Appendix A, with the consent of counsel for Peti­
tioner. See also Pet. Brief at 3 n.l.

4 Throughout this Brief references to the joint Appendix, filed
May 7,1979, will be cited as “ App.----- . ”

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3

Ferri at the criminal trial.5 App. 7. The Complaint did 
not allege any intentional wrongdoing or malice, see  
App. 6-23, but instead recited 67 separate actions or 
trial decisions by Respondent that allegedly demon­
strated negligence in the handling of the criminal case. 
I d .  at 11-19. For example, Ferri alleged it was negli­
gent for Ackerman to have rejected F e rr i’s suggestion 
that he subpoena the United States Megistrate to tes­
tify at F e rr i’s pre-trial hearing. S e e  App. 13, para. 
17. Similarly, F erri contended that Ackerman should 
have called as a trial witness the attorney who repre­
sented the key prosecution witness against Ferri. I d .  
at 15, para. 3. F erri also claimed that Ackerman was 
negligent because he did not “ question the government 
bomb expert from Washington, D.C., Justice Depart­
ment, exactly when did the government’s exhibit 
(bomb) become a bomb under the law charged in the 
indictment.” I d .  at 18, para. 30.

Rather than filing an answer to this complaint and 
proceeding with time-consuming and burdensome dis­
covery proceedings,6 Respondent Ackerman filed a 
demurrer, seeking dismissal of the complaint as a mat­
ter of law. The demurrer contended that Ackerman’s 
representation of Ferri pursuant to an appointment 
under the Criminal Justice Act constituted the per­
formance of a governmental function and thus pro-

5 Following the criminal trial, Ackerman had withdrawn as 
Ferri’s counsel and the court had appointed a new attorney to 
represent Ferri in his unsuccessful appeal to the United States 
Court of Appeals for the Third Circuit. See App. 38.

6 Subsequent to filing his complaint, Ferri sought extensive dis­
covery in the eivil action by filing interrogatories directed to, 
among others: the Governor of Alabama; the federal public de­
fender ; the chief of police of Plum Borough, P a.; and Boron Oil 
Company. App. 2.

73



4

vided Respondent with official immunity from civil lia­
bility for work done in performing that function. App. 
26.

F erri subsequently filed a pleading, which he de­
nominated “ Traversal B rief of Plaintiff,” in which 
“ by stipulation” he purported to “ narrow the issues,” 
apparently abandoning his earlier 67 claims of mal­
practice and raising for the first time an allegation 
that Ackerman had been negligent in failing during 
the criminal trial to raise a supposed statute of limita­
tions defense. S e e  App. 30; Pet. Brief at 7.

As Petitioner acknowledges, the conspiracy and 
bombing counts against Ferri were subject to a five- 
year statute of limitations, 18 U.S.C. § 3282, and prose­
cution under those counts was not time-barred. Pet. 
B rief at 4 n.2. Thus, Petitioner’s twenty-year sentence 
under those counts is not subject to question. P eti­
tioner alleges, however, that prosecution for the an­
cillary tax counts in the indictment should have been 
barred by 26 U.S.C. § 6531. S e e  Pet. B rief at 4 n.2. 
That statute provides for a three-year limitation on 
most prosecutions, along with a six-year period for 
the offense of “ willfully attempting in any manner to 
evade or defeat any tax or the payment thereof.” 26 
U.S.C. § 6531 (2).7 The indictment in the instant ease

7 The tax counts of the indictment against Ferri alleged: that 
he “ willfully and knowingly possessed a firearm . . . which had 
not been registered to him . . .  as required by” the Internal Reve­
nue Code; that he “ willfully and knowingly possessed a firearm 
. . . made without the payment of a making tax as required by” 
the Internal Revenue Code; and that he “ willfully and knowingly 
made a firearm . . . without having paid the making tax as re­
quired by” the Internal Revenue Code. Pet. Brief at 4b-6b.

74



5

was returned three years and two days after the of­
fenses charged.8

Since the ten-year sentence which Petitioner re­
ceived on the tax counts does not begin until after the 
conclusion of the twenty-year sentence Petitioner is 
now serving for conspiracy and bombing, Petitioner 
has not yet begun to serve the sentence that is in dis­
pute as a result of the statute of limitations issue. 
Petitioner has acknowledged in his pleadings in this 
action that a collateral remedy may be available to him 
to raise the statute of limitations issue and thus to de­
termine the legality of his sentence on the tax counts. 
App. 32. Petitioner asserts that he “expects to exer­
cise that remedy,” id ., but he has not yet filed such a 
petition for collateral review, having chosen first to 
seek monetary damages in this malpractice action.9

Following briefing on the issue of official immunity, 
the Pennsylvania Court of Common Pleas followed

8 The statute provides that any time during which the defendant 
was outside the United States shall not be counted as part of the 
time within which charges must be brought. 26 U.S.C. § 6531. 
Thus, if Ferri was out of the country for just two days between 
August 26, 1971, and August 28, 1974, then the indictment was 
not time-barred, even under Petitioner’s reading of the statute of 
limitations.

9 If such collateral review proceedings were successful in elimi­
nating the additional ten-year sentence which Ferri has not yet 
begun to serve, such a result, of course, would moot any damage 
claims that might be available in a malpractice action. If, on the 
other hand, it were held in the collateral review proceeding that 
there was no statute of limitations defense to be raised, or other­
wise that Ackerman’s conduct of the defense was not ineffective or 
negligent, such a holding might well provide a collateral estoppel 
defense against subsequent malpractice claims by Ferri alleging 
the same grounds, as Petitioner himself has recognized. See Pet. 
Brief at 42 n.23; see also p. 48, infra.

75



6

the previous decisions of the courts of Pennsylvania 
and of virtually all other jurisdictions which have 
considered the issue and ruled that attorneys ap­
pointed under the Criminal Justice Act, like public 
defenders, perform an official government function 
and are entitled to the same immunity as judges and 
prosecutors. App. 44-45. That determination was later 
affirmed by the Pennsylvania. Supreme Court, App. 
48-55, whose judgment is here on review.

SUMMARY OF ARGUMENT

The Pennsylvania Supreme Court correctly held 
that the history and policies underlying the immunity 
doctrine fully support its application to government- 
sponsored criminal defense attorneys. The courts in 
both England and the United States have long held 
that judges are entitled to absolute immunity so that 
they can perform their judicial functions “ without 
harassment or intimidation.” B u t s  v. E co n o m o u , 438 
U.S. 478, 512 (1978). This doctrine has also been ap­
plied to virtually all other participants who fulfill an 
important governmental function in the judicial proc­
ess, including prosecutors, grand jurors, court clerks, 
and court reporters. S e e , e .g ., I m b le r  v. P a c h tm a n , 424 
U.S. 409 (1976).

In  1938, this Court held that it is a governmental 
responsibility to provide free counsel for indigents 
accused of federal crime, thus adding government- 
sponsored defense attorneys, including public defend­
ers and court-appointed attorneys, to the roster of 
those performing an important governmental function 
in the judicial process. Since that time every United 
States federal appellate court to have considered the

76



7

question has ruled that the immunity doctrine applies 
fully to government-sponsored defense attorneys, 
whether full-time public defenders employed by the 
government or defense counsel appointed by the courts 
under the Criminal Justice Act.

The legislative history of the Criminal Justice Act 
demonstrates that Congress has also recognized that 
government-sponsored defense attorneys perform an 
important governmental function. The Act reflects 
Congress’ vital concern that court-appointed attorneys 
from the private bar, as well as public defenders, be 
employed to fulfill the governmental responsibility of 
representing indigents accused of crime.

In  addition to these historical and judicial prece­
dents, the fundamental policy interests underlying the 
immunity doctrine support its application to govern­
ment-sponsored defense counsel. The very function of 
such counsel, like that of judges and prosecutors, “of­
ten invites a common-law tort action.” I m b le r  v. 
P a c h tm a n , s u p r a , 424 U.8. at 421. The practical re­
alities surrounding the function of government-spon­
sored defense counsel are wholly dissimilar, for pur­
poses of immunity, from the circumstances of pri­
vately retained counsel. Because of such factors as 
their inability to choose or discharge their counsel, 
criminal defendants tend to view government-spon­
sored defense counsel with suspicion, and to perceive 
them as representatives of the state. In  addition, re­
tained attorneys operate without certain financial and 
other pressures faced by government-sponsored attor­
neys and possess important economic and other influ­
ence with clients that their publicly supported counter­
parts lack. Thus, regardless of the quality of legal

77



8

services rendered by publicly supported counsel, the 
often inevitable result is bitterness towards the gov­
ernment-sponsored attorney and frequent petitions for 
habeas corpus and other collateral relief. Just as the 
role of the prosecutor and the judge is likely to pro­
duce “ with some frequency retaliatory suits by angry 
defendants,” B u t z  v. E c o n o m o u , s u p r a , 438 TT.S. at 
510, so would the abrogation of the immunity doctrine 
in fact lead to tremendous pressures on court-ap­
pointed counsel.

The interests of indigent criminal defendants are 
served better by continued application of the immunity 
doctrine than by obtaining the highly speculative 
benefits of a malpractice remedy. Abrogation of the 
immunity doctrine would harm defendants by limiting 
the exercise of attorneys’ professional judgment as to 
such matters as trial strategy since, given the inher­
ently strained, involuntary nature of the relationship 
between defendants and appointed attorneys, govern­
ment-sponsored attorneys would become more sus­
ceptible to pressure from clients to call additional wit­
nesses or make additional arguments that in fact would 
prejudice the defendant’s own case. Moreover, the 
energies of defense counsel could be diverted from 
representing their clients by the need to defend and 
guard against malpractice actions. Indeed, as a prac­
tical m atter abrogation of the immunity doctrine 
would make post-trial review of convictions less effec­
tive in some cases, since attorneys would be less likely 
to acknowledge after trial their own mistakes or the 
errors of other attorneys on those occasions where 
necessary to support defendants’ appeals or petitions

78



9

for review, if such admissions could subject the attor­
neys to malpractice liability.

The interests of the public and the criminal justice 
system also call for continuation of the immunity doc­
trine. I t  is increasingly difficult today to encourage 
able attorneys to accept appointments under the Crim­
inal Justice Act, which offers far lower compensation 
than is available to privately retained defense counsel. 
The imposition of malpractice liability on attorneys 
for their service under the Act would add still further 
burdens and costs on attorneys seeking to perform a 
public service by representing indigents and would 
deter many qualified attorneys from accepting such 
appointments. Moreover, abrogating the immunity 
doctrine would harm the public by making it impos­
sible for attorneys to exercise their best professional 
judgment in an effort to utilize efficiently the limited 
resources of the criminal justice system and to fulfill 
their ethical obligations. Given the inherent strains 
in the relationship between government-sponsored de­
fense counsel and their involuntary clients, the impo­
sition of malpractice liability would have the negative 
consequences of pressuring appointed counsel to follow 
their clients’ suggestions for trial strategies and ap­
proaches which counsel’s independent professional 
judgment might otherwise reject as unsound, wasteful 
of time and resources, or even of questionable ethics. 
As this Court has recognized with respect to prosecu­
tors, the abrogation of immunity thus would create the 
threat that the publicly supported defense attorney 
“ would shade his decisions instead of exercising the 
independence of judgment required by his public 
trust.” I m b le r  v. P a c h tm a n , s u p r a , 424 U.S. at 423.

79



10

Absent malpractice liability, sufficient remedies ex­
ist today through collateral review procedures, as well 
as judicial and professional discipline and super­
vision, to ensure that indigents receive their constitu­
tionally protected rights to effective assistance of 
counsel. In  fact, the abrogation of immunity would 
significantly interfere with these remedies, and would 
substitute in their place an alternative, malpractice 
liability, which is of questionable effectiveness.

Contrary to Petitioner’s claims, application of the 
immunity doctrine to government-sponsored defense 
counsel is fully consistent with constitutional prin­
ciples of equal protection. The opinion below does not 
create any “ suspect classification” or infringe any 
“ fundamental right,” and thus does not warrant strict 
scrutiny under this Court’s equal protection decisions.

The ruling below does not in any way infringe upon 
Petitioner’s right to counsel. The Sixth Amendment 
grants all citizens, whether indigent or not, the right 
to effective assistance of counsel, and attorneys ap­
pointed to carry out that constitutional command are 
required to provide precisely the same quality legal 
services that would be available to a paying client. The 
ruling below, by applying the immunity doctrine, 
merely affects one particular remedy that might be 
available for alleged violations of that right. There is 
no constitutional right, however, to such a particular 
remedy.

Moreover, this case involves no suspect classification 
that would call for strict scrutiny standards. The de­
cision below did not involve an explicit wealth-based 
classification. S e e  F u l le r  v. O reg o n , 417 U.S. 40 (1974). 
In  any event, this Court has held repeatedly that fi­

80



11

nancial need alone does not identify a suspect class for 
purposes of equal protection analysis.

Thus, application of the immunity doctrine under 
these circumstances is fully constitutional, so long as 
it is rationally related to the achievement of legitimate 
governmental objectives. Application of the immunity 
doctrine to government-sponsored defense lawyers not 
only is rationally related to important governmental 
objectives, but in fact is essential to achieve those ob­
jectives. Indeed, its application here serves the same 
purposes as application of the doctrine to prosecutors 
and judges: ensuring that defense counsel may exer­
cise the independence of judgment that is required by 
their governmental function and that is essential to 
the interests of both their clients and the administra­
tion of justice. This Court should reaffirm that im­
munity is appropriate “ to assure that judges, a d vo ­
ca tes , and witnesses can perform their respective func­
tions without harassment or intimidation.” B u t s  v. 
E c o n o m o u , su p ra , 438 U.S. at 512 (emphasis added).

ARGUMENT

I. The Legal History and Policy Interests Underlying Both the 
Immunity Doctrine and the Criminal Justice System Support 
the Established Principle oi Immunity irom Tort Liability of 
Government-Sponsored Criminal Defense Attorneys.

Court-appointed defense attorneys under the Crimi­
nal Justice Act, along with their counterparts in fed­
eral public defender offices, are appointed and com­
pensated by the federal government and perform the 
critical government function of representing indigent 
defendants in federal criminal trials. The Pennsyl­
vania Supreme Court held below that federal stand­
ards govern the question of the immunity to which 
such advocates are entitled, and that publicly sup­

81



12

ported defense counsel are entitled to absolute immu­
nity from tort liability under established federal law.10 
Analysis of “ the immunity historically accorded the 
relevant official at common law and the interests be­
hind it,” I m b le r  v. P a c h tm a n ,  424 U.S. 409, 421 
(1976), demonstrates that the Pennsylvania Supreme 
Court's decision is correct and should be affirmed.

A. The history of the immunity doctrine and of the criminal Justice 
system supports the established principle of immunity for 
government-sponsored defense counsel.

Not surprisingly, there is virtually no common law 
history directly concerning the immunity or liability 
of court-appointed defense attorneys or public defend­
ers, since the obligation of government to provide 
counsel to indigents has only recently arisen. S e e  
M in n s  v. P a u l ,  542 F.2d 899, 901 (4th Cir. 1976), cert, 
d e n ie d , 429 U.S. 1102 (1977); C a r u th  v. G ed d es , 443 
F. Supp. 1295, 1298 (N.D. 111. 1978); Pet. B rief at 
35-36. Nevertheless, an historical analysis of immunity 
doctrine at common law, of the constitutional obliga­

10 Petitioner has argued that the Pennsylvania Supreme Court 
incorrectly employed federal rather than state law standards in 
deciding the immunity issue, asserting that court-appointed attor­
neys are not federal employees and do not act under color of law. 
See Pet. Brief at 16-31. As will be discussed below, however, pub­
licly supported defense counsel perform an important govern­
mental function in the criminal justice process and are thus en­
titled to immunity regardless of whether their conduct constitutes 
“ state action.” Moreover, this Court made clear in Howard v. 
Lyons, 360 U.S. 593 (1959), that the question of whether or not 
a person is entitled to immunity as a federal official must be an­
swered by looking to federal law. State immunity law would be­
come relevant only if federal law provided no immunity. See gen­
erally Reese v. Danforth, 241 Pa. Super. 604, 360 A.2d 629 (1976) 
(public defenders held entitled to immunity from malpractice 
liability under Pennsylvania law).

82



13

tion of the government to provide defense counsel to 
indigent criminal defendants, and of the Criminal Ju s­
tice Act provides strong support for the principle that 
all government-sponsored defense counsel, including 
both public defenders and court-appointed attorneys, 
are immune from civil liability for malpractice.

1. C o m m o n  la w  a n d  c o n s titu tio n a l h is to r y

Initially, the traditional privilege attached to court­
room statements made by participants in judicial pro­
ceedings demonstrates the historical soundness of the 
doctrine of immunity for court-appointed defense at­
torneys. On both sides of the Atlantic, the law of defa­
mation has long protected both prosecutors and de­
fense attorneys from suit for any relevant statements 
made in the courtroom or in briefs and pleadings in 
order to prevent advocates from being “ embarrassed 
or enfeebled in endeavouring to perform their duty by 
the fear of subsequent litigation.” M u n s te r  v. L a m b ,  
11 Q.B.D. 588, 594, [1881-85] All E.R. 791 (1883).11

The courts in both Great Britain and the United 
States have relied upon this historical privilege in ex­
tending more general tort immunity to participants 
in judicial proceedings, including defense counsel. For 
example, in Im b le r ,  su p ra , this Court invoked the doc­
trine of privilege from defamation in explaining that 
absolute rather than qualified immunity for prosecu­
tors is necessary in order to ensure that “both the 11

11 See also, e.g., Imbler v. Pachtman, Supra, 424 U.8. at 426 n.23; 
Petty y. General Aec. Fire & Life Assur. Corp., 365 F.2d 419 (3d 
Cir. 1966); Johnson v. Schlarb, 7 Wash. 2d 528, 110 P.2d 190 
(1941); Hoar v. Wood, 44 Mass. 193 (1841). See generally 1 F. 
Harper & F. James, Law of Torts § 5.22 (1956).

83



14

prosecution a n d  th e  d e fe n s e  have wide discretion in 
the conduct of the trial and the presentation of evi­
dence” so that “ the system’s goal of accurately deter­
mining guilt or innocence” may be achieved. 424 U.S. 
at 426 (emphasis added). The House of Lords, in its 
decision to reaffirm the doctrine that barristers are 
absolutely immune from liability for any work done 
in the conduct of litigation, similarly reasoned that 
the arguments which support privilege from defama­
tion “ are at least equally applicable” to absolute im­
munity. R o n d e l  v. W o r s le y ,  3 All E.R. 993, 1000 
(1967) (Lord Reid).12

For similar reasons, English and American legal 
history also reflects the extension of absolute immunity 
to various government-sponsored participants in the 
judicial process, providing further support for the 
doctrine of absolute immunity for government-spon­
sored defense attorneys. The English common law es­
tablished early that judges were entitled to absolute 
immunity for acts done in the exercise of their judicial 
functions. S e e  F lo y d  v. B a r k e r ,  12 Coke 23, 77 Eng. 
Rep. 1305 (1608) ; G r o e n v e lt v. B u r w e l l ,  91 Eng. Rep. 
1202 (1696). This principle was accepted by the courts 
of this country, including this Court, in the 18th and 
19th centuries,13 and has been followed consistently 
through the present day. S e e  B u t s  v. E c o n o m o u , 438

12 See also 3 All E.R. at 1034 (“ immunity is just as necessary 
in [the barrister’s] general conduct of the case as in the case of 
defamation” ) (Lord Upjohn); 1023, 1026 (Lord Pearce); 1014 
(Lord Morris).

13 See, e.g., Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872); 
Yates v. Lansing, 5 Johns. 282 (N.Y. 1810) ; Ross v. Rittenhouse, 
2 Dali. 160 (Pa. 1792).

84



15

U.S. 478, 508-17 (1978) (immunity of administrative 
law judges) ; P ie r s o n  v. R a y ,  386 U.S. 547 (1967) 
(immunity of state judges); accord , S tu m p  v. S p a r k ­
m a n , 435 U.S. 349 (1978).14 * * As the Court explained in 
B u tz ,  judges must often decide controversial cases 
arousing “ the deepest feelings” in the litigants, which 
“ are not easily capped by a judicial decree. The loser 
in one forum will frequently seek another, charging 
the participants in the first” with improper conduct, 
necessitating absolute immunity to ensure that judges 
may perform their functions “ without harassment or 
intimidation.” 438 U.S. at 509, 512. S e e  a lso  P ie r s o n  v. 
R a y ,  s u p r a , 386 U.S. at 547, 554; B r a d le y  v. F is h e r , 80 
U.S. (13 Wall.) 335, 347-48 (1872).

A similar rationale has been employed by the courts 
in extending absolute immunity to prosecutors. Begin­
ning in 1896, the majority of the state courts held that 
prosecutors were absolutely immune from suits for 
malicious prosecution. S e e  G r iffith  v. S t in k a r d ,  146

14 In cases such as Butz, Pierson, and Stump, the Court was con­
cerned with immunity of officials from constitutional tort claims
under 42 U.S.C. § 1983, a question not presented in this case,
which concerns only the state or common law tort of malpractice. 
See Pet. Brief at 33 n.19. Nevertheless, cases dealing with im­
munity from § 1983 are relevant in this case, since this Court has 
indicated that immunity from § 1983 should be “ in harmony with 
general principles of tort immunit[y].” Imbler v. Pachtman, 
supra, 424 U.S. at 448. See also Pet. Brief at 32. In fact, this Court 
has suggested that immunity from tort liability may be somewhat 
broader than immunity from § 1983 liability, since common law 
immunity doctrines do not operate under the “ restraints imposed 
by the Federal Constitution.” Butz v. Economou, supra, 438 U.S. 
at 495. See also Granger v. Marek, 583 F.2d 781, 784 (6th Cir. 
1978) (immunity of federal officials from state law torts held 
broader than immunity from constitutional torts) ; 52 Temple 
L.Q. 102, 110-11, 113 (1979) (cited at Pet. Brief at 32).

85



16

Ind. 117, 44 N.E. 1001 (1896).16 In  this century, the 
decisions of the federal courts, including a p e r  c u r ia m  
opinion by this Court in 1927, consistently have upheld 
the doctrine of prosecutorial immunity from liability. 
S e e  Y a s e l l i  v. G o ff, 275 U.S. 503 (1927) ( p e r  c u r ia m ), 
a f f ’g  12 F.2d 396 (2d Cir. 1926).16 In  I m b le r  v. P a c h t-  
m a n , s u p r a , this Court held that prosecutors are abso­
lutely immune from liability under 42 U.S.C. § 1983, 
even where a prosecutor is charged with knowingly 
using false testimony and suppressing material ex­
culpatory evidence. In  so holding, the Court specifi­
cally noted that the “ common-law rule of immunity” 
for prosecutors is “ well settled,” based upon “ the 
same considerations that underlie the common-law 
immunities of judges . . . .” 424 U.S. at 422-23.

Contrary to Petitioner’s contention that only prose­
cutors and judges have received absolute immunity,17

15 Other early cases, cited in Imbler v. Pachtman, supra, 424 
U.S. at 422 n.19, include: Kittler v. Kelseh, 56 N.D. 227, 216 N.W. 
898 (1927) ; Watts v. Gerking, 111 Ore. 654, 228 P. 135 (1924); 
Semmes v. Collins, 120 Miss. 265, 82 So. 145 (1919) ; Smith v. 
Parman, 101 Kans. 115, 165 P. 663 (1917). Contra, Leong Yau v. 
Carden, 23 Hawaii 362 (1916).

1<! See also, e.g., Tyler v. Witkowski, 511 F.2d 449 (7th Cir. 
1975); Fanale v. Sheehy, 385 F.2d 866 (2d Cir. 1967); Bauers v. 
Heisel, 361 F.2d 581 (3d Cir. 1966), cert, denied, 386 U.S. 1021 
(1967); Kostal v. Stoner, 292 F.2d 492 (10th Cir. 1961), cert, 
denied, 369 U.S. 868 (1962).

17 Pet. Brief at 32. As Petitioner himself acknowledges, absolute 
immunity has also been extended to “ persons performing a legis­
lative function.” Id. at 32 n.17. Petitioner also neglects the fact 
that, even after Butz, government officials may well retain the 
immunity from common law tort (as opposed to constitutional) 
liability established in Barr v. Matteo, 360 U.S. 564 (1959). See 
Butz v. Economou, supra, 438 U.S. at 488-89; Granger v. Marek, 
supra, 583 F.2d at 784.

86



17

similar immunity has been accorded to virtually all 
participants who fulfill an important governmental 
function in the judicial process. The courts have held, 
for example, that grand jurors,18 court clerks,19 court 
reporters,20 probation officers,21 and bar association 
members participating in disciplinary proceedings22 
are immune from liability. As the Ninth Circuit Court 
of Appeals has explained, the “ key to the immunity” 
is that the allegedly wrongful acts were committed “ in 
the performance of an integral part of the judicial 
process.” R o b ic h a u d  v. R o n a n , 351 F.2d 533, 536 (9th 
Cir. 1965).

18 See Butz v. Eeonomou, supra, 438 U.S. at 509-11; Imbler v. 
Pachtman, supra, 424 U.S. at 423 n.20; Floyd v. Barker, 12 Coke 
23, 77 Eng. Rep. 1305 (1608) ; Turpen v. Booth, 56 Cal. 65 (1880) ; 
Plunder v. Mathis, 40 Ind. 356 (1872).

19 See e.g., Stewart v. Minnick, 409 F.2d 826 (9th Cir. 1969); 
Rhodes v. Meyer, 334 F.2d 709 (8th Cir.), cert, denied, 379 U.S. 
915 (1964) ; Pritt v. Johnson, 264 F. Supp. 167 (M.D. Pa. 1967); 
Ginsberg v. Stern, 125 F. Supp. 596 (W.D. Pa. 1954), aff’d, 225 
F.2d 245 (3d Cir. 1955). Contra, McCray v. Maryland, 456 F.2d 
1 (4th Cir. 1972) (ministerial functions).

20 See, e.g., Dieu v. Norton, 411 F.2d 761 (7th Cir. 1969); Mor­
row v. Igleburger, 67 F.R.D. 675, 689 (S.D. Ohio 1974) ; Brown v. 
Charles, 309 F. Supp. 817, 817-18 (E.D. Wis. 1970) ; United States 
ex rel. Johnson v. Specter, 262 F. Supp. 113 (E.D. Pa. 1967).

21 See, e.g., Burkes v. Callion, 433 F.2d 318 (9th Cir. 1970), 
cert, denied, 403 U.S. 908 (1971); Harmon v. Superior Court, 329 
F.2d 154, 155 (9th Cir. 1964) ; Morrow v. Igleburger, supra, 67 
F.R.D. at 683; Friedman v. Younger, 282 F. Supp. 710, 715-16 
(C.D. Cal. 1968).

22 See, e.g., Kissell v. Breskow, 579 F.2d 425, 428-30 (7th Cir. 
1978) ; Clark v. State of Washington, 366 F.2d 678, 681 (9th Cir. 
1966) ; Moity v. Louisiana State Bar Ass’n, 414 F. Supp. 180, 
183-84 n.17 (E.D. La.), aff’d, 537 F.2d 1141 (5th Cir. 1976) ; 
Kremer v. Stewart, 378 F. Supp. 1195, 1197, 1198 (E.D. Pa. 1974).

87



18

In  1938 and in 1963, this Court required that an­
other participant be added to the roster of those per­
forming important governmental functions in the ju ­
dicial process: the defense attorney for indigent crimi­
nal defendants. In  G id e o n  v. W a in w r ig h t ,  372 U.S. 
335 (1963), the Court held it is the constitutional duty 
of the state to provide counsel for indigent criminal 
defendants. As the Court had explained in holding the 
right applicable to federal criminal prosecutions in 
J o h n s o n  v. Z e r b s t ,  304 U.S. 458 (1938), the provision 
of defense counsel for indigents is a governmental re­
sponsibility, since the Constitution withholds from the 
government “ the power and authority to deprive an 
accused of his life or liberty unless he has or waives 
the assistance of counsel.” I d .  at 463.

As this Court has recognized, the right to counsel is 
important not only to fulfill the government’s obliga­
tion to assure fairness and the constitutional rights of 
an accused, but also to vindicate the interests of the 
government itself in “ the accurate finding of fact,” 
G a g n o n  v. S c a r p e ll i , 411 U.S. 778, 785 (1973), and the 
“ integrity of the adjudicative process.” P r o fe s s io n a l  
R e s p o n s ib i l i t y : R e p o r t  o f  th e  J o in t  C o n fe re n c e , 44 
A.B.A.J. 1159, 1160-61 (1958). Professional standards 
governing criminal defense counsel thus provide that 
the defense attorney is “ an essential component of the 
administration of criminal justice,” constituting one 
part of the “ tripartite entity” of judge, prosecutor, 
and defense counsel who form a “ court properly con­
stituted to hear a criminal case.” American B ar Asso­
ciation, S ta n d a r d s  R e la t in g  to  th e  P r o s e c u tio n  F u n c ­
t io n  a n d  th e  D e fe n s e  F u n c t io n  (approved draft, 1971) 
(hereinafter “ D e fe n s e  F u n c t io n ” ) , § 1.1(a), at 153. 
As Mr. Justice Stevens has observed, it is this very

88



19

“ performance . . .  of public services which play such a 
significant role in our administration of justice” which 
justifies the doctrine of immunity for court-appointed 
defense attorneys. W a lk e r  v. K r u s e ,  484 F.2d 802, 805 
(7th Cir. 1973) (Opinion of Stevens, J .) .

2. T h e  C r im in a l J u s t ic e  A c t

The realization that it is a governmental responsi­
bility to provide counsel to indigent defendants has 
not been confined to the bench and the bar. The legis­
lative history of the Criminal Justice Act, 18 TJ.S.C. 
§ 3006A, under which Respondent was appointed as 
defense counsel for Petitioner at his criminal trial, 
demonstrates the recognition and intent of Congress 
that the representation of an indigent accused be a 
governmental function and responsibility. An impor­
tant impetus to the passage of the Criminal Justice 
Act was a study conducted for the Department of Jus- 
tice by the Attorney General’s Commission on Poverty 
and the Administration of Justice, chaired by Profes­
sor Francis Allen of the University of Michigan Law 
School. S e e  C r im in a l J u s t ic e  A c t  o f  1963: H e a r in g s  on  
S .6 3  a n d  S .1 0 5 7  b e fo re  th e  S e n a te  C o m m , o n  th e  J u d i ­
c ia ry , 88th Cong., 1st Sess. 8-9, 140-200 (1963). P ro­
fessor Allen’s report concluded that the solution to 
the problem of insufficient representation for indigent 
criminal defendants “ falls squarely within the area of 
government obligation” and is a matter “ of national 
concern.” I d .  at 187, 200. As Professor Allen explained 
in the Senate hearings on the Criminal Justice Act, 
the “ defense function is fully as important as the 
functions of prosecution and adjudication” in the gov­
ernment-sponsored judicial process. I d .  at 142. S e e

89



20

also  id . at 8 (testimony of Attorney General Robert 
Kennedy) (“ society’s obligation to the accused” re­
quires appointment of counsel).

The passage of the Criminal Justice Act demon­
strated Congress’ acceptance of the principle that 
representation of indigent criminal defendants is a 
responsibility of the government as well as the private 
bar. S e e , e .g ., 110 Cong. Rec. II421 (daily ed., Jan. 15, 
1964) (remarks of Rep. Celler) (Criminal Justice 
Act “ will fill a vacuum and do that which is just and 
proper and honest. A great democracy such as ours 
should do no less” ). As one Court of Appeals has ex­
plained, legislation such as the Criminal Justice Act 
has so expanded the government’s function in provid­
ing criminal defense counsel that “ for indigents the 
government’s role in litigation is to provide counsel 
for both sides of a controversy as well as a judicial 
officer to decide i t .” M in n s  v. P a u l ,  su p ra , 542 F.2d 
at 901. !

Petitioner has argued that the Criminal Justice Act 
does not support the immunity doctrine because its 
legislative history suggests that court-appointed attor­
neys and public defenders, like their private counter­
parts, are to be “ independent of government control” 
in the conduct of their duties. Pet. Brief at 37-38. This 
argument simply does not follow. Surely Petitioner 
would not suggest that judges and grand jurors are 
subject to government control in the performance of 
their tasks, yet even Petitioner has agreed that these 
government-sponsored participants in the judicial 
process rightfully enjoy absolute immunity. S e e  Pet. 
Brief at 31-32. Similarly, neither grand jurors nor bar 
association members participating in disciplinary pro­

90



21

ceedings are government employees, but both are en­
titled to absolute immunity. S e e  p. 17, su p ra . The fun­
damental question is not where the participants are 
located (Pet. Brief at 12, 33), or by whom they are 
formally employed or paid (Pet. Brief at 21, 22, 26, 
27), but whether they fulfill governmental responsi­
bilities constituting an integral part of the judicial 
process. S e e  pp. 13-17, su p ra . The legislative history of 
the Criminal Justice Act demonstrates that attorneys 
appointed under the Act perform precisely such a 
governmental function by representing indigent de­
fendants independently of federal control.23

This conclusion is reinforced by the fact that the 
legislative history of the Criminal Justice Act estab­
lishes, contrary to Petitioner’s suggestion (Pet. Brief 
at 21), that court-appointed counsel are surrogates 
for federal public defenders and that both are to be 
treated similarly. As Petitioner himself observes, the 
1963 version of the Criminal Justice Act specifically 
omitted, because of House opposition, provisions that 
would have authorized federal public defenders. Pet. 
Brief at 18-20. In  1970, however, the Act was amended 
to include such public defenders. Congress did not in­
tend this amendment to replace the practice of ap­
pointing private defenders, but instead contemplated

23 Petitioner’s reliance upon decisions interpreting the Federal 
Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), is similarly mis­
placed. As Petitioner has argued, the FTCA is inapplicable to 
the conduct of court-appointed defense counsel because the gov­
ernment does not directly control the performance of their duties. 
Pet. Brief at 22, 26. For precisely the same reason, however, the 
FTCA does not cover the official conduct of judges either, and 
even Petitioner has conceded that judges are absolutely immune 
from liability. See Foster v. MacBride, 521 F.2d 1304, 1304-05 
(9th Cir. 1975) (federal judge’s conduct in trying cases held “ not 
under control of the United States” under FTCA).

91



22

that public defenders “ would augment resources and 
efforts of the private assigned counsel systems,” 116 
Cong. Ree. H9545 (daily ed., Oct. 5, 1970) (remarks of 
Rep. Poff), and that both types of publicly supported 
defense counsel would fulfill the same governmental 
function of “ providing adequate defense services for 
the financially disadvantaged.” 115 Cong. Rec. S2576 
(daily ed., March 10,1969) (remarks of Sen. H ruska). 
S e e  a lso  M in n s  v. P a u l ,  s u p r a , 542 F.2d at 901 (dis­
cussing immunity of “ state-supplied attorney[s],” 
including “ court-appointed counsel and public defend­
ers” ) ; Brief of A m ic u s  C u r ia e  National Legal Aid 
and Defender Association (hereinafter “ NT, AD A 
B rie f” ), at 13 n.2 (“ [distinguishing between Federal 
Public Defenders, Community Defenders, and other 
court-appointed counsel would certainly be irra­
tional”).24

24 The intent of the Criminal Justice Act to treat court-appointed 
attorneys and public defenders alike contradicts Petitioner’s argu­
ment that court-appointed counsel do not act under color of law, 
since Petitioner has conceded that federal public defenders are 
considered federal government personnel (Pet. Brief at 21 n .ll) 
and that the decisions of several courts support the proposition 
that public defenders act under color of law (Pet. Brief at 23-24). 
See also Brown v. Joseph, 463 F.2d 1046, 1048 (3d Cir. 1972), 
cert, denied, 412 U.S. 950 (1973) (suggesting that public defenders 
and court-appointed counsel be treated similarly for “ state ac­
tion” purposes). In any event, this Court need not decide the 
question of whether a publicly supported defense attorney’s con­
duct constitutes “ state aetion” in this case. The performance by 
such attorneys of important governmental responsibilities which 
are integral to the judicial process justifies immunity even if 

state action,” as that term has been defined in the specialized 
context of constitutional jurisprudence, does not exist. For ex­
ample, representation of indigents may not constitute “ state ac­
tion” precisely because such representation is not performed ex­
clusively by the government, Flagg Bros., Inc. v. Brooks, 436 U.S. 
149, 161 (1978), and instead by appointed defense counsel whose

92



23

Petitioner has also claimed that Congress’ silence 
on the question of immunity for government-spon­
sored defense counsel in enacting the Criminal Justice 
Act suggests that liability was intended. Pet. Brief at 
38-39. I f  anything, Congress’ silence warrants pre­
cisely the opposite inference. “ [N]o suggestion was 
made on the part of any congressman regarding the 
need for immunity” (Pet. Brief at 38), because at that 
time no court had ever held a court-appointed attorney 
susceptible to malpractice liability, and the history of 
the common law, as outlined above, supported the doc­
trine of immunity. By the time of the 1970 amend­
ments to the Act, one federal appellate court had spe­
cifically ruled that court-appointed attorneys are im­
mune from civil liability, J o n e s  v. W a r l ic k ,  364 F.2d 
828 (4th Cir. 1966) “  and again Congress said nothing 
about immunity. According to Petitioner’s own analy­
sis, this Congressional silence “ may be properly read 
as preserving intact the existing state of affairs” : im­
munity for court-appointed attorneys. S e e  Pet. Brief 
at 38-39.

3. J u d ic ia l  r e c o g n itio n  o f  im m u n i ty  f o r  
g o v e rn m e n t-sp o n so re d  d e fe n s e  counse l

Since J o n e s  v. W a r l ic k ,  su p ra , every federal appel­
late court which has specifically considered the ques- 25

fulfillment of this governmental responsibility warrants immunity. 
In fact, one of the very cases relied upon principally by Peti­
tioner, Housand v. Heiman, No. 78-2046 (2d Cir., March 20, 1979), 
relied on both lack of state action and immunity as alternative 
grounds for its holding that a § 1983 claim was not cognizable 
against a court-appointed attorney. Id., slip op. at 1829-30.

25 The per curiam opinion in Jones affirmed an unpublished opin­
ion by Circuit Court Judge Bell, sitting by designation. A copy of 
Judge Bell’s opinion is included for the Court’s convenience as 
Appendix B to this brief.

93



24

tion of whether public defenders and court-appointed 
defense attorneys should be immune from liability for 
malpractice or for alleged damages under 42 U.S.C. 
§ 1983 has held that the doctrine of immunity applies 
to government-sponsored attorneys. Three courts of 
appeals have held immunity applicable to court-ap­
pointed defense counsel,26 three courts of appeals have 
specifically concluded that public defenders are im­
mune,27 and no federal appellate court has held to the

26 See Minns v. Paul, 542 F.2d 899 (4th Cir. 1976), cert, denied, 
429 U.S. 1102 (1977); Walker v. Kruse, 484 F.2d 802, 804-05 (7th 
Cir. 1973); O’Brien v. Colbath, 465 F.2d 358 (5th Cir. 1972); 
Shapley v. Green, 465 F.2d 874 (5th Cir. 1972) ; Sullens v. Car- 
roll, 446 F.2d 1392 (5th Cir. 1971). Minns, O’Brien, and Shapley 
concerned liability under 42 U.S.C. § 1983, while Walker and 
Sullens dealt with immunity from common law tort liability and 
Jones v. Warlick concerned both. See also Housand v. Heiman, No. 
78-2046 (2d Cir., March 20, 1979), slip op. at 1829-30 (noting 
that federal courts have held public defenders and court-appointed 
attorneys immune ‘ ‘ based on policy reasons which equate the func­
tions served by [them] . . . with those served by prosecutors” ); 
Smallwood v. United States, 358 F. Supp. 398, 404 (E.D. Mo.), 
aff’d, 486 F.2d 1407 (8th Cir. 1973) (immunity of court-appointed 
attorney for trustee in bankruptcy from § 1983 liability) ; U.S. 
General, Inc. v. Sehroeder, 400 F.. Supp. 713, 717 (E.D. Wis. 
1975) ; Ehn v. Price, 372 F. Supp. 151, 153 (N.D. 111. 1974).

27 See Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1978); 
Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977) ; Waits v. Mc­
Gowan, 516 F.2d 203 (3d Cir. 1975) ; John v. Hurt, 489 F.2d 
786 (7th Cir. 1973) ; Brown v. Joseph, supra. The complaint at 
issue in John contained both constitutional and tort law claims, 
while the other decisions concerned absolute immunity from § 1983 
suits. See also Caruth v. Geddes, 443 F. Supp. 1295 (N.D. 111. 
1978) ; Beaver v. Carey, 426 F. Supp. 301 (N.D. 111. 1977) ; Mor­
row v. Igleburger, supra, 67 F.R.D. at 681-82; Karney v. Van Ness, 
No. 1186-70 (D.N.J., March 24, 1971) ; Reese v. Danforth, 241 Pa. 
Super. 604, 360 A.2d 629 (1976). The decisions in John and Beaver 
concerned qualified immunity.

94



25

contrary.28 As the courts have explained, there is “ no 
valid reason to extend this immunity to state and fed­
eral prosecutors and judges and to withhold it from 
state-appointed and state-subsidized defenders.” 
B r o w n  v. J o s e p h , 463 F.2d 1046, 1048 (3d Cir. 1972), 
cer t, d e n ie d , 412 U.S. 950 (1973); accord , M in n s  v. 
P a u l ,  su p ra , 542 F.2d at 901; M ille r  v. B a r i l la , 549 
F.2d 648, 649 (9th Cir. 1977). S e e  also W a lk e r  v. 
K r u s e ,  s u p r a , 484 F.2d at 804-05.

This Court’s most recent decision reaffirming abso­
lute immunity for participants in the judicial process, 
B u t s  v. E c o n o m o u , su p ra , further supports the doc­
trine of immunity for court-appointed defense coun­
sel. In  holding that administrative law judges and 
agency attorneys participating in administrative 
hearings are absolutely immune from tort liability, the 
Court explained that such immunity is necessary “ to

28 Petitioner has identified only two eases, United States ex rel. 
Wood v. Blacker, 335 F. Supp. 43 (D.N.J. 1971), and Spring v. 
Constantino, 362 A.2d 871 (Conn. 1975), which held that govern­
ment-sponsored defense counsel are not immune. Both of these 
cases were decided before Imbler and Butz, and both concerned 
state public defenders, rather than court-appointed attorneys un­
der the Criminal Justice Act. Neither of those courts considered 
the specific historical and policy arguments raised here, and the 
holding in Blacker was overruled sub silentio by the Third Circuit 
Court of Appeals in Waits and Brown, supra. See note 27, supra. 
The other cases relied upon by Petitioner (Pet. Brief at 35) do not 
hold in his favor, and contain no more than speculation that com­
mon law tort actions “ arguably” or “ may be” available against 
government-sponsored defense counsel after holding that § 1983 
liability is unavailable. In fact, one case cited by Petitioner, Tasby 
v. Peek, 396 F. Supp. 952, 958 (W.D. Ark. 1975), specifically 
recognizes that allowing suits against court-appointed attorneys 
by “ unsatisfied clients” would have a “ chilling effect upon de­
fense counsel’s tactics,” as noted below in support of the immunity 
doctrine.

95



26

assure that judges, a d v o c a te s , and witnesses can per­
form their respective functions without harassment or 
intimidation.” I d . ,  438 U.S. at 512 (emphasis added). 
While the Court in B u t s  did not specifically confront 
the question of the immunity properly accorded to a 
defense advocate, the history of immunity granted to 
government-sponsored participants in judicial pro­
ceedings amply supports the recognized doctrine of 
immunity for publicly supported defense counsel.

B. The policy interests underlying the immunity doctrine and the 
criminal justice system support the established principle oi 
immunity lor government-sponsored defense counsel.

In  addition to the historical and judicial precedents 
discussed above, strong policy interests support the 
immunity doctrine which the courts have recognized 
for publicly supported defense counsel. While court- 
appointed attorneys and public defenders perform dif­
ferent functions than do judges and prosecutors, just 
as judges and prosecutors themselves have different 
responsibilities, similar policies support the principle 
of absolute immunity for each of these government- 
sponsored participants in the criminal justice system. 
Coupled with the availability of other alternatives to 
help ensure that indigent defendants receive effective 
criminal representation, these policies necessitate im­
munity for government-sponsored defense counsel. 1

1. T h e  u n iq u e  s ta tu s  o f  g o v e rn m e n t-sp o n so re d  
p a r t ic ip a n ts  in  th e  c r im in a l ju s t ic e  s y s te m

The recognition by the federal courts that absolute 
immunity applies to publicly supported defense attor­
neys has explicitly rested, in large measure, on policies 
and interests similar to those which support immunity 
for prosecutors and judges. S e e , e.g ., M il le r  v. B a r i l la ,

96



27

s u p r a , 549 F.2d at 649; M in n s  v. P a u l ,  su p ra , 542 F.2d 
at 901; W a lk e r  v. K r u s e ,  su p ra , 484 F.2d at 804-05; 
B r o w n  v. J o s e p h , s u p r a , 463 F.2d at 1048-49.29 Even

29 Although the precedents and policy arguments reviewed above 
require a rule of absolute immunity for government-sponsored de­
fense counsel, see Imbler v. Pachtman, supra, 424 U.S. at 424-29; 
Minns v. Paul, supra, 524 F.2d at 902, it is interesting to note 
that affirmance of the decision below would be appropriate here 
even under a qualified immunity rule. See Dandridge v. Williams, 
397 U.S. 471, 475 n.6 (1970); Robinson v. Bergstrom, supra, 579 
F.2d at 411 n.13. This Court has held that even where absolute 
immunity may be inappropriate, qualified immunity should be 
granted a number of different types of officials. See, e.g., Scheuer 
v. Rhodes, 416 U.S. 232, 240 (1974) ; Butz v. Economou, supra, 
438 U.S. at 497; Wood v. Strickland, 420 U.S. 308 (1975). These 
rulings are at least equally applicable to publicly supported de­
fense counsel, since the threat of liability would significantly in­
terfere with their willingness and ability to perform their crucial 
public functions “ with the decisiveness and the judgment required 
by the public good. ’ ’ Scheuer, supra, 416 U.S. at 240. See pp. 28-44, 
infra. Immunity from liability for “ good-faith, nonmalicious action 
taken to fulfill their official duties” is thus justified for govern­
ment-sponsored defense counsel. Wood, supra, 420 U.S. at 318.

In this case, it is clear that even such qualified immunity would 
require dismissal of Petitioner’s complaint for malpractice. The 
only allegation raised by Petitioner in the courts below was the 
purportedly negligent conduct of Respondent. See pp. 2-4, supra. 
Nowhere does Petitioner even suggest that Respondent’s alleged 
errors were committed in bad faith, maliciously, or with disregard 
of Petitioner’s “ clearly established constitutional rights.” Wood, 
supra, 420 U.S. at 322. See pp. 2-4, supra. According to the stand­
ards established by this Court in such cases as Scheuer and Wood, 
therefore, the dismissal of Petitioner’s complaint should be af­
firmed even if a doctrine of only qualified immunity is adopted by 
this Court. See Procunier v. Navarette, 434 U.S. 555, 566 (1978) 
(affirming grant of summary judgment against plaintiff on grounds 
of qualified immunity where complaint alleged only “ negligent 
conduct” ) ; John v. Hurt, supra, 489 F.2d at 788 (affirming dis­
missal of complaint on grounds of qualified immunity where com­
plaint contained “ no allegation that [public defender’s] conduct 
was intentionally harmful to plaintiff” ) .

97



28

a m ic u s  cu r ia e  National Legal Aid and Defender Asso­
ciation (“ NLADA” ) has noted the “ close analogy” 
between the function of government-sponsored defense 
counsel and “ that of prosecutors and judges,” and has 
argued that all these participants in the judicial proc­
ess should be treated identically with respect to im­
munity. NLADA Brief at 14.

Petitioner has maintained, however, that govern­
ment-sponsored defense counsel should be treated the 
same as privately retained attorneys. S e e  Pet. B rief at 
13, 21, 28. In  addition to ignoring the critical govern­
ment function performed by publicly supported de­
fense attorneys in representing indigent defendants, 
this claim neglects the fact that the very governmental 
status of judges, prosecutors and publicly supported 
defense counsel, as opposed to privately retained at­
torneys, significantly enhances the threat of liability.

Initially, the nature of the relationship between the 
publicly supported defense counsel and the indigent 
defendant is completely different from the relation­
ship between privately retained attorneys and their 
clients. As Petitioner himself has observed, defendants 
who hire counsel may select their own attorney and 
may substitute new counsel whenever they choose. Pet. 
B rief at 39. The very fact that the client has made the 
choice tends to give the retained lawyer “ greater 
standing” and “ the confidence of his client.” D e fe n s e  
F u n c t io n  at 176. In  addition, the ability of the private 
attorney to decline representation, to withdraw from 
a case, and to pass on to the client the economic costs 
associated with differing trial strategies and ap­
proaches means that “ the client usually will accede” to 
the lawyer’s judgment as to the conduct of the repre­
sentation. D e fe n s e  F u n c t io n  at 234. S e e  also id . at 
176, 275-76; M in n s  v. P a u l ,  s u p r a , 542 F.2d at 901.

98



29

In  contrast, Petitioner himself emphasizes that the 
indigent client cannot choose or substitute counsel. 
Pet. Brief at 31, 39. In  addition, the government-spon­
sored defense attorney generally cannot decline or 
withdraw from a particular representation, and eco­
nomic costs are borne by the state and not the client. 
D e fe n s e  F u n c t io n  at 176, 234, 275-77; M in n s  v. P a u l ,  
s u p r a , 542 F.2d at 902. Most importantly, as a m ic u s  
cu r ia e  NLADA has observed, indigent defendants 
have a “ fundamental m istrust” of publicly supported 
defense counsel because “ they perceive them as having 
a prim ary allegiance to the state/prosecution. ” 
NLADA Brief at 10. S e e  also D e fe n s e  F u n c t io n  at 
198, 223; Burger, C o u n se l f o r  th e  P r o s e c u tio n  a n d  
D e fe n s e — T h e ir  R o le s  U n d e r  th e  M in im u m  S ta n d a r d s ,  
8 Amer. Crim. L.Q. 2, 4, 6 (1969) (hereinafter “ C o u n ­
se l f o r  th e  P r o s e c u tio n  a n d  D e fe n s e ” ) .  “ [A]ll too 
often,” the result is “ misguided self-help” (NLADA 
B rief at 11), “ disregarding of counsel’s advice” ( id . ) ,  
and “ pressure on [the] assigned lawyer” to engage in 
unsound tactics (D e fe n s e  F u n c t io n  at 223), producing 
less effective representation, bitterness towards the 
assigned lawyer and, according to NLADA, “ meritless 
appeals and collateral petitions.” 30 NLADA Brief at 
11.

30 If the number of such “ collateral petitions” is any guide, 
abrogation of the doetrine of immunity could produce huge num­
bers of malpractice actions against government-sponsored defense 
attorneys. Between 1970 and 1976, petitions from federal prisoners 
increased 266% while petitions from state prisoners increased by 
1,624%, reaching a total of over 21,000 per year by 1978. Admin­
istrative Office of the U.S. Courts, Annual Report of the Director 
(1976) at 132-33; id. (1978) at 75. In addition to the inherent ten­
sion between court-appointed counsel and their clients, the Fed­
eral Judicial Center reports that the absence of expense as a re­
straint and the fact that legal work may constitute a “ welcome

99



30

The same fundamental premise which underlies the 
policies supporting immunity for judges and prosecu­
tors thus also applies to publicly supported defense 
counsel: the very function of these government-spon­
sored participants in the judicial process “ often in­
vites a common-law tort action.” I m b le r  v. P a c h tm a n ,  
s u p r a , 424 U.S. at 421. As this Court has held with 
respect to judges and prosecutors, the intense feelings 
and significant interests at stake in a criminal trial are 
likely to produce a losing party  who will “ accept any­
thing but the soundness of the decision as explana­
tion” of the outcome. B u t z  v. E c o n o m o u , s u p r a , 438 
U.S. at 509; B r a d le y  v. F is h e r ,  s u p r a , 80 U.S. at 348. 
Just as the role of the prosecutor is likely to produce 
“with some frequency retaliatory suits by angry de­
fendants,” B u t z ,  s u p r a , 438 U.S. at 510, so the “ re­
sentment of unsuccessful litigants may easily blos­
som” into litigation against court-appointed defense 
attorneys. M in n s  v. P a u l,  s u p r a , 542 F.2d at 902; C a- 
r u th  v. G ed d es, s u p r a , 443 F. Supp. at 1297.

In  addition, complaints by dissatisfied criminal de­
fendants are often filed p r o  se  or in  fo r m a  p a u p e r is ,  
and are accordingly entitled to liberal treatment by 
the courts. S e e  H a in e s  v. K e r n e r ,  404 U.S. 519, 520
(1972); S c h a e d le r  v. R e e d in g  E a g le  P u b l ic a t io n , I n c . ,

relief” from prison life are major factors behind this large num­
ber of petitions. See Prisoner Civil Rights Committee, Federal 
Judicial Center, Recommended Procedures for Handling Prisoner 
Civil Rights Cases in Federal Court (tent, report No. 2, 1977) at 3. 
See also Minns v. Paul, supra, 542 F.2d at 902. Thus, it is reason­
able to predict that abrogation of the immunity doctrine would 
lead a substantial number of these habeas corpus petitioners to 
file malpractice actions against their court-appointed attorneys as 
well.

100



31

370 F.2d 795 (3d Cir. 1967). S e e  a lso  B r o w n  v. J o s e p h ,  
s u p r a , 463 F.2d at 1046. While such treatment is en­
tirely appropriate for p r o  se  and i n  fo r m a  p a u p e r is  
litigants and should be encouraged, the result for the 
prosecutor and defense counsel is that more of such 
lawsuits are likely to get beyond the pleading stage 
and into time-consuming and expensive discovery pro­
ceedings, thereby imposing substantial hardships on 
even the most honest and conscientious public prose­
cutor or defense attorney. S e e  I m b le r  v. P a c h tm a n ,  
s u p r a , 424 U.S. at 425; M ille r  v. B a r i l la ,  s u p r a , 549 
F.2d at 650.

Finally, government-sponsored defense attorneys, 
like their counterparts at the prosecutor’s table, face 
significant constraints of time and resources not 
shared by privately retained defense counsel. Both the 
legislative history and implementation of the Criminal 
Justice Act demonstrate that appointed attorneys fre­
quently receive less than 25% of the compensation rou­
tinely obtained in private cases, and some services 
provided to defendants are not covered whatsoever.31

31 See Austern, Rezneck, et al., Report on Criminal Defense 
Services in D.C. by Joint Committee of Judicial Conference of 
D.C. Circuit and D.C. Bar (April, 1975) (hereinafter “Austern- 
Rezneck Report”) at 50-55, 35-38, 41-45; S. Rep. No. 91-790, 91st 
Cong., 2d Sess. 14-15 (1970) ; Amendments to the Criminal Justice 
Act of 1964: Hearings on S.1461 Before the Subcomm. on Con­
stitutional Rights of the Senate Comm, on the Judiciary, 91st 
Cong., 2d Sess. 223, 225 (1969) (testimony of Judge Hastie) ; 110 
Cong. Rec. H428 (daily ed., Jan. 15, 1964) (remarks of Rep. 
McCulloch) (under Criminal Justice Act, counsel will not always 
be “ even reimbursed for all expenses” ). See also United States v. 
Nakamura, 577 F.2d 485, 487, 488 (9th Cir. 1978) (disallowing 
from Criminal Justice Act compensation time spent by research 
assistant and by attorney in consulting with research assistant) ; 
United States v. Rountree, 254 F. Supp. 1009, 1011 (S.D.N.Y. 
1966) (reducing fee award although “ the true comparative value” 
of attorney’s services exceeded the amount requested).

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32

In  addition, because of the heavy demand upon legal 
resources for defense of the indigent, public defenders 
and court-appointed attorneys are often forced to bear 
caseloads which exceed recommended guidelines by 
50% or more. S e e  Note, W o r k  O v e r lo a d  a n d  D e fe n d e r  
B u r n o u t ,  35 NLADA Briefcase 5, 7 (1977).32

These pressures significantly increase both the num­
ber and the burden of malpractice actions which gov­
ernment-sponsored defense counsel and prosecutors 
could face if the immunity doctrine were abandoned. 
“ Frequently acting under serious constraints of time 
and even information,” I m b le r  v. P a c h tm a n , su p ra ,  
424 U.S. at 425, the publicly supported defense attor­
ney, like the prosecutor, faces the inevitable “ possi­
bility that [an] adverse ruling might result in a frivo­
lous or colorable claim against him.” M in n s  v. P a u l ,  
su p ra , 542 F.2d at 902. As this Court held in Im b le r ,  
such claims “ could impose unique and intolerable bur­
dens” upon advocates “ responsible annually for hun­
dreds” of cases. 424 U.S. at 425-26.

2. T h e  in te r e s ts  o f  th e  in d ig e n t  c r im in a l d e fe n d a n t

In  light of the enhanced concern that government- 
sponsored attorneys especially may face a large vol­
ume of lawsuits from dissatisfied clients, it is impor­
tant to recognize that the doctrine of immunity actu­
ally serves the interests of the indigent criminal de­

32 See also Austern-Rezneck Report at 99-100; Defense Func­
tion at 151, 182; NLADA Brief at 8. Compare Note, Caseload 
Ceilings on Indigent Defense Systems To Ensure Effective Assist­
ance of Counsel, 43 Cinn. L. Rev. 185, 190 (1974) (suggesting 
ceiling of 30-40 pending cases per public defender), with Note, 
Work Overload and Defender Burnout, 35 NLADA Briefcase 5 
(1977) (reporting average of 113 pending cases per attorney in 
one public defender’s office).

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33

fendant. Petitioner has argued that court-appointed 
attorneys will render more effective service if impelled 
by fear of malpractice liability.33 A closer analysis re­
veals, however, that the threat of liability would have 
precisely the opposite effect. Such a threat instead 
would impair defense counsel’s ability to fulfill his 
responsibilities both to the client and to the adminis­
tration of justice.

Initially, the spectre of liability would significantly 
affect the exercise of an attorney’s independent stra­
tegic judgment as to such matters in the conduct of 
litigation as the making of pre- and post-trial motions 
and the examination and cross-examination of wit­
nesses. I t  has been consistently recognized that effec­
tive representation of an accused requires that “ the 
power of decision” in such strategic and tactical areas 
“must rest with the lawyer.” D e fe n s e  F u n c t io n  at 240. 
S e e  also id ., §5-2(b), at 163, 239; C o u n se l f o r  th e  
P r o s e c u tio n  a n d  D e fe n s e  at 4-5. Yet as Lord Reid ex­
plained in R o n d e l  v. W o r s le y ,  su p r a :

Every counsel in practice knows that daily he is 
faced with the question whether in his client’s 
interest he should raise a new issue, put another 
witness in the box, or ask further questions of the 
witness whom he is examining or cross-examining. 
That is seldom an easy question but I  think that 
the most experienced counsel would agree that the

83 Petitioner’s claim that abrogation of immunity would improve 
defense counsel’s performance of his duties—as with most of 
Petitioner’s arguments against the ruling below—-could be applied 
equally to call for an end to the immunity accorded to judges and 
prosecutors, as NLADA has done (see NLADA Brief at 14), but 
this Court properly has rejected the unfounded notion that im­
munity causes such officials to be derelict in the performance of 
their governmental duties. See generally Butz v. Economou, supra; 
Imbler v. Pachtman, supra.

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34

golden rule is—when in doubt stop. F ar more 
cases have been lost by going on too long than by 
stopping too soon. But the client does not know 
that. To him brevity may indicate incompetence 
or negligence . . . .  So I  think it not at all improb­
able that the posibility of being sued for negli­
gence would at least subconsciously lead some 
counsel to undue prolixity which would . . .  be 
harmful to the client. . . .  3 All E.R. at 999.34

Anything other than a rule of immunity, therefore, 
would significantly impair the ability of publicly sup­
ported defense attorneys “ to make strategic decisions 
with regard to a single litigant as to how best his inter­
ests may be advanced.” M in n s  v. P a u l ,  s u p r a , 542 F.2d 
at 901; accord , M il le r  v. B a r i l la ,  s u p r a , 549 F.2d at 649.

In  addition, the threat of liability could divert an 
attorney’s attention away from fully representing his 
client’s interests. In  order to prevail in a malpractice 
suit against an attorney, a client would be required to 
prove that he would have been acquitted but for the 
attorney’s alleged negligence, and perhaps that he was 
actually innocent of the charges against him. S e e  
M a r t in  v. H a ll , 20 Cal. App. 3d 414, 97 Cal. Rptr. 730 
(1971) ; W a lk e r  v. K r u s e ,  s u p r a , 484 F.2d at 804. To

34 See also id. at 1016 (“ if a barrister were liable to account in 
respect of points, or evidence, or questions which he discarded, 
he would obviously be inclined to take every point, to ask every 
question, and to call every witness” ) (Lord Pearce); Minns v. 
Paul, supra, 542 F.2d at 902 (‘‘ [t]he nature of the strategic de­
cisions, including the use of witnesses, which must be made by an 
indigent’s attorney makes him more likely than other non-judicial 
officers to be subject to colorable claims” ). This problem is 
especially significant for court-appointed counsel because of the 
pressures produced by the involuntary relationship between at­
torney and client. See Defense Function at 223, 234; Counsel for 
the Prosecution and Defense at 4-5.

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35

sanction such tort actions by dissatisfied clients would 
be to put defense attorneys in the untenable position 
of seeking, at least subconsciously, evidence of their 
own client’s guilt. As the Court of Appeals for the 
Third Circuit explained in B r o w n  v. J o s e p h , su p ra ,  
the threat of liability would produce “ a chilling effect 
upon Defense Counsel’s tactics” and would catch him 
“ in an intrinsic conflict of protecting himself and 
representing his client.” 463 F.2d at 1049. S e e  a lso  
E h n  v. P r ic e ,  372 F. Supp. 151, 153 (N.D. 111. 1974); 
T a s b y  v. P e e k ,  396 F. Supp. 952, 958 (W.D. Ark. 1975) 
(cited at Pet. Brief at 26).36

The threat of liability could also work against the 
interests of the accused by diverting government-spon­
sored defense attorneys from their important public 
function of representing indigent defendants. Compe­
tent criminal defense requires difficult strategic de­
cisions by counsel on many complex issues, such as

85 The requirement that a malpractice plaintiff prove that he 
was innocent or would have been acquitted at his criminal trial 
but for asserted attorney negligence creates additional problenis 
which further militate against overturning the doctrine of im­
munity. The plaintiff would be required to recreate the criminal 
trial, perhaps including testimony from witnesses who testified 
against him. The former defense attorney would be required to 
argue that his own client was in fact guilty, which may include 
use of illegally obtained evidence and even statements made by 
the client to the attorney. Cf. American Bar Association, Code of 
Professional Responsibility (1977) DR 4-101(C) (4) (recognizing 
exception to attorney-client privilege where “ necessary [for at­
torney] . . .  to defend himself or his employees or associates 
against an accusation of wrongful conduct” ). As Lord Morris 
remarked in Rondel v. Worsley, supra, such a “ re-trial of the 
criminal case” would be “ highly undesirable” from the perspec­
tive of the client, the lawyer, and the public. 3 A ll E.R. at 1012. 
See also id. at 1000 (Lord Reid) ; Imbler v. Pachtman, supra, 424 
U.S. at 425.

105



36

which pre-trial motions to make, which witnesses to 
examine or cross-examine, and whether the defendant 
should testify. S e e  g e n e r a lly  M in n s  v. P a u l ,  s u p r a , 542 
F.2d at 902; C a r u th  v. G e d d es , s u p r a , 443 F. Supp. at 
1298-99; R o n d e l  v. W o r s le y ,  s u p r a , 3 All E.R. at 999 
(Lord Reid). Especially in light of the serious time 
and resource constraints that they face, defense law­
yers as well as prosecutors “ inevitably [make] many 
decisions that could engender colorable claims” against 
them. I m b le r  v. P a c h tm a n , s u p r a , 424 U.S. at 425. 
“ Defending those decisions, often years after they 
were made,” id ., “ would consume the energy of state- 
subsidized attorneys which should be devoted to repre­
senting the interests of other indigent clients.” M in n s  
v. P a u l ,  s u p r a , 542 F.2d at 902. S e e  a lso  M il le r  v. B a ­
r illa , s u p r a , 549 F.2d at 650; C a r u th  v. G e d d es , s u p r a ,  
443 F. Supp. at 1297, 1298.

Finally, perhaps the most direct conflict of interest 
between attorney and client which the possibility of 
liability would create pertains to the attorney’s duty 
to acknowledge and argue his or her own mistakes in 
attempting to obtain a new trial or post-conviction 
relief for the client. Such action by defense counsel is 
often critical to a client’s chances of obtaining such 
relief. S e e , e .g ., C ro ss  v. U n ite d  S ta te s ,  392 F.2d 360, 
367 (8th Cir. 1968) (remanding to determine whether 
effective assistance of counsel was provided “ in view 
of [counsel’s] own statement” admitting errors); 
J o h n s o n  v. U n ite d  S ta te s ,  328 F.2d 605, 606 (5th Cir. 
1964) (noting that alleged defects in record “ would 
ordinarily not be sufficient” to warrant appellate ac­
tion, but vacating sentence because “ trial counsel him­
self” raised issue of inadequacy in motion for new 
trial). I f  civil liability were possible, however, defense

106



37

attorneys could well become reluctant to raise such 
arguments, which could identify possible claims and 
even constitute evidence in an action against them or 
other attorneys. As this Court has explained in rela­
tion to the comparable function of prosecutors in re­
vealing all significant evidence of innocence of an ac­
cused, the “ possibility of personal liability . . . could 
dampen [defense counsel’s] exercise of his duty” to 
represent his clients fully, contradicting the very pur­
pose which Petitioner seeks to achieve. I m b le r  v. 
P a c h tm a n , s u p r a , 424 U.S. at 427 n.25.

3. T h e  in te r e s ts  o f  th e  p u b lic  a n d  th e  
a d m in is tr a t io n  o f  ju s t ic e

Petitioner has claimed that the government-spon­
sored defense attorney is not a “ servant of the public” 
because of the allegiance owed to individual clients. 
Pet. Brief at 44. This assertion ignores the fact that 
the publicly supported defense lawyer in fact serves 
the public and the administration of justice precisely 
by fulfilling the governmental responsibility of repre­
senting indigent defendants “ to the fullest extent that 
the law and the standards of professional conduct per­
m it.” D e fe n s e  F u n c t io n  at 173; see  pp. 18-21, su p ra . In  
addition, the immunity doctrine serves other important 
public interests of the criminal justice system, inde­
pendent of any duty owed to particular clients.

Initially, the federal courts have explained that the 
doctrine of immunity for court-appointed attorneys 
is necessary, in part, “ to recruit and hold able lawyers 
to represent indigents.” M in n s  v. P a u l ,  s u p r a , 542 P. 
2d at 901; accord , M ille r  v. B a r il la ,  su p ra , 549 F.2d 
at 649; C a r u th  v. G ed d es , su p ra , 443 P. Supp. at 1297. 
The job of the defense attorney is perhaps the most

107



38

challenging in the legal profession, often bringing long 
hours and relatively meager rewards. S e e  pp. 31-32 
and note 31, s u p r a . Not surprisingly, therefore, the 
American B ar Association has reported that “ this 
area of practice has steadily lost popularity” despite 
“ the demand for more lawyers as defense attorneys 
in an ever-increasing number of criminal cases.” S e e  
D e fe n se  F u n c t io n  at 151, 152.36 Especially under these 
circumstances, the courts have explained, to “ subject 
this defense counsel to liability, while cloaking with 
immunity his counterpart across the counsel table, the 
clerk of the court . . . [and] the presiding judge,” 
would be “ to discourage recruitment of sensitive and 
thoughtful members of the bar” to criminal defense 
work. B r o w n  v. J o s e p h , s u p r a , 463 E.2d at 1049.

The goal of encouraging private attorneys to serve 
as court-appointed defense counsel is particularly 
significant in this case, which concerns attorneys ap­
pointed under the Criminal Justice Act, 18 U.S.C. 
§ 3006A. Petitioner himself has recognized that the 
legislative history of the Act makes it unmistakably 
clear that Congress intended to make “active and sub­
stantial participation by private attorneys basic to 
any district plan for representation.” S. Rep. No. 91- 
790, 91st Cong., 2d Sess. 3 (1970). S e e  Pet. B rief at 
20. As Petitioner explains, the Criminal Justice Act 
originally did not provide for federal public defend­
ers, since many Congressmen felt that such a sug­
gestion would “ undermine the Anglo-Saxon tradi­
tion in America” of private attorneys “ free to render

36 See also Defense Function at 187 (“ the number of specialists 
in criminal trial practice will not be sufficient in the foreseeable 
future to satisfy the need” ).

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39

the best defense.” 110 Cong. Rec. H418 (daily ed., Jan. 
15, 1964) (remarks of Rep. M oore); see  Pet. B rief at 
18-19, 38. When the public defender system was 
added to the Criminal Justice Act, both House and 
Senate sponsors explained that “ the use of private 
counsel” would be “ supplemented with and not re­
placed by” public defenders, since “ [Research and 
study indicate that it is essential to maintain the in­
terest and participation of the local attorneys . . . .” 
116 Cong. Rec. H9545 (daily ed., Oct. 5, 1970) (re­
marks of Rep. Poff). S e e  a lso  115 Cong. Rec. S2576 
(daily ed., March 10, 1969) (remarks of Sen. H ruska) 
(emphasizing “ the importance of retaining the in­
volvement of the private bar in criminal defense 
w ork” ). This important Congressional purpose of en­
couraging the participation of private attorneys as 
court-appointed defense counsel would be seriously un­
dermined if the doctrine of immunity for such gov­
ernment-sponsored attorneys, recognized by each fed­
eral court of appeals which has considered the ques­
tion, were altered by this Court.

Petitioner has maintained, however, that the non­
competitive rates offered for Criminal Justice Act 
representation are sufficient, without immunity, to 
attract “ many of the burgeoning number of law school 
graduates.” Pet. Brief at 46. To the extent that this 
claim is based upon present experience, it begs the 
question, since the courts in virtually all jurisdictions 
at present hold that government-sponsored defense 
counsel are immune from liability. S e e  pp. 23-25, 
su p ra . More importantly, Petitioner apparently en­
visions recruitment of defenders from among the in­
experienced new law school graduates who must accept 
compensation which even Petitioner admits (Pet. 
Brief at 46) is “ not always” competitive—in other

109



40

words, the least experienced, least competent members 
of the bar will represent the poor.

One of the prim ary reasons why Congress empha­
sized the importance of involving the private bar in 
criminal defense work was to avoid such problems. 
Even if many dedicated practitioners can be attracted 
full-time to the challenging task of defending the in­
digent, the need for competent counsel, as well as the 
desirability of bringing “a larger cross-section of the 
bar into contact” with the criminal justice system, re­
quires the “ involvement of the non-specialist who is 
a qualified trial practitioner and who is willing to de­
vote some time to criminal cases.” D e fe n s e  F u n c t io n  
at 152.37 As damaging as the spectre of liability would 
be to recruitment of effective full-time defense advo­
cates, it would be fatal to the attraction of the part- 
time defense counsel who plays such an important role 
in providing competent counsel to indigent defendants. 
S e e  M in n s  v. P a u l ,  s u p r a , 542 F.2d at 901.38

37 See also Defense Function, § 1.5, at 155, 187-88; Counsel for 
the Prosecution and Defense at 8; pp. 37-38, supra. Such involve­
ment is important not only to fill manpower needs, but also to en­
courage the private bar to play a larger role in the improvement of 
the criminal justice system and to discourage indigent defendants 
from believing that all appointed counsel are mere agents of the 
prosecution or the state. Contrary to NUADA’s claims (NLADA 
Brief at 11), therefore, indigents’ perceptions of government- 
supplied counsel would become worse if immunity were abrogated 
and the participation of the private bar were concomitantly dis­
couraged. See generally United States v. DeFreitas, 410 F. Supp. 
241, 242-43 (D.N.J. 1976), aff’d, 556 F.2d 569 (3d Cir.), cert, 
denied, 434 U.S. 847 (1977) (noting defendant’s contention that 
he “ lacks trust” in full-time public defender and requested ap­
pointment of previously retained private attorney).

38 See generally United States v. Harper, 311 F. Supp, 1072, 
1074 (D.D.C. 1970) (under the Criminal Justice Act, the “ burden 
of representing indigent defendants in this jurisdiction falls prin-

110



41

Petitioner suggests that liability insurance or in­
creased funding may be available to ameliorate the 
problems discussed above. Pet. Brief at 46, 47. Yet Pe­
titioner has failed to offer any evidence that either of 
these alternatives is either available or effective, and 
the facts suggest precisely the contrary.39 In  any event, 
Petitioner’s argument misses the point. Liability in­
surance theoretically could be purchased by judges 
and prosecutors, as well as by government-sponsored 
defense counsel, and increased funding could help re­
lieve some of the time and resource constraints identi­
fied by this Court in Im b le r  v. P a c h tm a n , s u p r a , as 
well. Immunity remains important for each of these 
officials—even if financial liability is assumed by the

cipally on the bar. By responding so willingly and competently, 
often at personal inconvenience and sacrifice, the members of our 
bar perform a great public service” ). If immunity were abrogated, 
increased reliance upon public defender systems, with concom- 
mitant increases in their staff and budgets, would thus be required, 
contrary to the purposes of the Criminal Justice Act.

39 As to insurance, for example, malpractice insurance premiums 
have risen to the point that even private attorneys who do not 
confront the enhanced threat of liability faced by government- 
sponsored counsel must increasingly do without insurance. See 
Boyer & Conner, Legal Malpractice and Compulsory Client Protec­
tion, 29 Hastings L.J. 835, 837-39 (1978); 1 Prof. Liab. Rptr., No. 
11, at 185 (May 1977).

Petitioner’s suggestion of increased funding for the Criminal 
Justice Act not only asks this Court to rely upon the hypothetical 
actions of a coordinate branch of government, but is also belied by 
past legislative performance and by the express purpose of Con­
gress, when enacting the Criminal Justice Act, to provide for less 
than full or adequate funding and to encourage private attorneys 
to perform a pro bono function in representing indigents. See 
Austern-Rezneck Report at 49; 115 Cong. Rec. S946 (daily ed., 
Jan. 27, 1969) (remarks of Sen. Hruska) ; 110 Cong. Rec. H428 
(daily ed., Jan. 15, 1964) (remarks of Rep. McCulloch) ; United 
States v. Harper, supra, 311 F. Supp. at 1074 (Criminal Justice 
Act was “ not designed to provide full compensation for counsel” ).

I l l



42

government or shared through insurance—because the 
threat of prosecution and its other attendant burdens 
and costs still may deter effective performance of their 
crucial public functions.

In  addition to helping to encourage counsel to repre­
sent the indigent, immunity assists government-spon­
sored defense attorneys in meeting their professional 
obligation to help encourage the efficient use of the 
limited resources of the criminal justice system. P ub­
licly supported defense attorneys lack the economic 
and psychological influence on clients which enables 
privately retained counsel to perform the function of 
determining which litigation procedures and strate­
gies are worth pursuing. S e e  M in n s  v. P a u l ,  su p ra ,  
542 F.2d at 901-02; pp. 28-30, su p ra . Under such cir­
cumstances, the criminal justice system must rely, at 
least in part, on the professional judgment of govern­
ment-sponsored defense attorneys to prevent unneces­
sary expenditure of scarce judicial resources on hear­
ing near-frivolous claims.40 Immunity is thus neces­

40 All attorneys are ethically bound, of course, not to present 
frivolous motions or arguments to a court. The difficulty arises 
with regard to the many marginal arguments which retained 
counsel routinely advise their clients against advancing, but which 
non-immunized appointed counsel may be pressured to advance 
by clients who have no economic incentive to limit claims and who 
have a fundamental distrust of their government-sponsored coun­
sel. See pp. 28-30, supra. Given these inherent pressures, appointed 
counsel may be influenced by the threat of liability, at least sub­
consciously, to advance arguments which their independent judg­
ment might classify as unwise, or even as frivolous. Contrary to 
the claims of Petitioner and NLADA, this argument does not cast 
doubt on the integrity of either the poor or of appointed defense 
counsel. Instead, it reflects a simple recognition of the pressures 
inherent in their involuntary relationship. See Defense Function 
at 223, 239.

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43

sary “ to encourage counsel in the full exercise of pro­
fessionalism,” including the “ discretion, in the light 
of their training and experience, to decline to press 
the frivolous.” M in n s  v. P a u l,  su p ra , 542 F.2d at 901; 
M ille r  v. B a r i l la , su p ra , 549 F,2d at 649.

Perhaps most importantly, the doctrine of immunity 
helps preserve the independence of professional judg­
ment necessary to ensure that court-appointed attor­
neys fulfill their ethical obligations to the administra­
tion of justice. The law has long rejected the view that 
defense counsel is simply the “ alter ego” of his client. 
D e fe n s e  F u n c t io n ,  § 1.1(c), at 153, 146. In  fact, the 
ethical codes of the legal profession impose duties on 
defense attorneys which may sometimes conflict with 
the desires of their clients, such as the obligation to 
disclose adverse legal precedents,41 to refrain from 
presenting unwarranted or frivolous arguments,42 to 
avoid putting irrelevant matters before the jury,43 and 
to abstain from asking questions designed solely to 
discredit a truthful witness.44 As Lord Reid observed 
in R o n d e l  v. W o r s le y ,  su p ra , “ although the line be­

41 See American Bar Association, Code of Professional Responsi­
bility (1977) (hereinafter “ ABA Code” ), DR 7-106(B), EC 7-23.

42 See ABA Code, DR 7-102(A)(2), EC 7-5, 7-25; Defense 
Function, § 7.6(D), at 167.

43 See ABA Code, EC 7-25, DR 7-106(C) ; Defense Function, 
§§ 7.5(b), 7.6(c), 7.9, at 166-68.

44 See Defense Function, § 7.6(b), at 166; ABA Code, EC 7-25, 
7-10. Other relevant ethical mandates include, for example, the 
duty to prevent undue delay, to avoid any misrepresentation of 
the facts or law, and to abstain from furthering the creation or 
preservation of false evidence and the suppression of material 
evidence or witnesses. See ABA Code, EC 7-5, 7-25-27, DR 7-102, 
7-106(C) ; Defense Function, §§ 1.1(d), 1.2, 7.5, 7.7, at 153-54, 
166-67.

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4 4

tween improper and proper conduct may be easy to 
state in general terms, it is by no means easy to draw 
in many borderline cases,” 3 All E.R. at 999, espe­
cially where the result may “ vary according to the 
client’s intent, motive or desires,” ABA Code, EC 
7-6, and where the government-sponsored attorney 
does not enjoy the relationship of the private attorney 
to his client which may help “ discourage any inclina­
tion of the client to engage in impropriety or to de­
mand it of the lawyer.” S e e  D e fe n s e  F u n c t io n  at 176, 
276. Immunity thus helps guarantee that attorneys’ in­
dependent judgment concerning their ethical obliga­
tions in close cases is not influenced, even subcon­
sciously, by the threat of lawsuits from dissatisfied 
clients.

The doctrine of immunity for the government-spon­
sored defense attorney is thus supported not only by 
history and by the need to maintain private attorney 
involvement in defending the indigent, but also by 
precisely the same factors which justify immunity for 
the prosecutor and the judge: “ concern that harass­
ment by unfounded litigation would cause a deflection 
of . . . energies from his public duties, and the possi­
bility that he would shade his decisions instead of ex­
ercising the independence of judgment required by his 
public tru st.” I m b le r  v. P a c h tm a n , s u p r a , 424 U.S. 
at 423.

C. Available alternatives to malpractice liability provide superior
methods for ensuring the right to eiieciive assistance of
counsel.

In  addition to the historical and policy arguments 
discussed above, the availability of alternative means 
to help ensure that indigent defendants receive effec­
tive assistance from their attorneys, particularly post­

114



45

conviction relief on the grounds of ineffective assist­
ance of counsel, supports the doctrine of immunity for 
court-appointed attorneys. S e e  Irn b le r  v. P a c h tm a n ,  
su p ra , 424 U.S. at 427 (discussing alternatives to 
§ 1983 liability of prosecutor). While Petitioner has 
asserted that such remedies are inadequate, a review 
of these alternatives reveals that in fact they are far 
more effective at vindicating defendants’ rights to 
effective assistance of counsel than civil liability 
would be.

1. P o s t-c o n v ic t io n  re m e d ie s

Petitioner has not denied that the federal criminal 
defendant who is dissatisfied with the representation 
provided by government-sponsored counsel may seek 
reversal on appeal or federal habeas corpus relief on 
the grounds of ineffective assistance of counsel. In  
fact, the very case relied upon by Petitioner in alleg­
ing that these remedies are “speculative” (Pet. Brief 
at 42 n.23) demonstrates instead that the courts will 
grant relief when appointed counsel fails to render 
such “ reasonably effective assistance” as would be 
provided by a “ lawyer with ordinary training and 
skill in the criminal law.” B e a s le y  v. U n ite d  S ta te s ,  
491 F.2d 687, 696 (6th Cir. 1974).45 There is thus no

45 Similar standards have been adopted by virtually every federal 
court and numerous state courts. See, e.g., United States v. Easter, 
539 F.2d 663 (8th Cir. 1976) (holding that counsel must “ exercise 
the customary skills and diligence that a reasonably competent 
attorney would perforin’’) ; United States v. Moore, 174 U.S. App.
D.C. 113, 115, 529 F.2d 355, 357 (1976) (mandating “ reasonably 
competent assistance of an attorney acting as [defendant’s] dili­
gent conscientious advocate,” quoting United States v. DeCoster, 
159 U.S. App. D.C. 326, 487 F.2d 1197 (1973); Moore v. United 
States, 432 F.2d 730, 736 (3d Cir. 1970) (requiring that counsel 
“ exercise . . .  the customary skill and knowledge which normally

115



46

practical difference between the criteria employed 
upon post-conviction review and the civil malpractice 
standard that an attorney must employ “ due care.” 
M a r t in  v. H a ll ,  s u p r a , 97 Cal. Rptr. at 733. S e e  M o o re  
v. U n ite d  S ta te s ,  432 F.2d 730, 736 (3d Cir. 1970) (not­
ing that indigent defendant “ is entitled to legal ser­
vices of the same level of competency as that generally 
afforded at the bar to fee-paying clients,” requiring 
“ the exercise of the customary skill and knowledge 
which normally prevails” ).

Petitioner has nevertheless maintained that post­
conviction relief is inadequate because it offers pro­
spective relief and not money damages and because 
it does not directly punish defense counsel himself. 
Pet. B rief at 41-42. This characterization of post-con­
viction relief fails to show, however, that it is insuffi­
cient. Reversal of the conviction of an accused is the 
universal remedy provided by our criminal justice 
system to redress the right to a fa ir trial, and this 
Court’s decisions concerning immunity have never 
suggested that such means are inadequate simply be­
cause the officer who may have been responsible is not 
punished and a monetary award is not provided. S e e

prevails” ); Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), cert, 
denied, 393 U.S. 849 (1969) (articulating specific guidelines for 
counsel in investigating and preparing cases) ; State v. Thomas, 
203 S.E.2d 445, 461 (W. Va. 1974) (requiring “ normal and cus­
tomary degree of skill possessed by attorneys who are reasonably 
knowledgeable of criminal law” ). Only two Circuits, the Second 
and the Tenth, have adhered to the old “ mockery of justice” 
standard, and even in these Circuits the courts appear increasingly 
willing to consider petitions for relief based upon allegedly in­
effective assistance of counsel. E.g., Saltys v. Adams, 465 F.2d 1023 
(2d Cir. 1972) (holding counsel ineffective for failure to attempt 
to suppress identification). See generally Annot, 26 A.L.R. Fed. 
218 (1976).

116



47

I m l l e r  v. P a c h tm a n , s u p r a , 424 U.S. at 427. In  fact, 
post-conviction proceedings would appear far more 
effective than malpractice liability, since the former 
directly vindicate a defendant’s constitutional rights 
by granting him a new trial and possible freedom, 
while the latter produces only damages which may be 
difficult to compute and which do not redress the fun­
damental deprivation of liberty that even the success­
ful malpractice claimant would continue to suffer.46

Malpractice suits constitute a distinctly inferior 
method of protecting defendants’ rights for several 
additional reasons. In  a civil malpractice action, the 
former criminal defendant would be required to prove 
that he would have been acquitted at trial in the ab­
sence of counsel’s error and, according to some courts, 
that he was innocent in fact,47 * a burden which is much 
more onerous than that imposed in post-conviction pro­
ceedings. The attorney charged with malpractice could 
also raise such defenses as contributory negligence for 
failure to provide sufficient information, issues which 
would not arise, of course, in a post-conviction crim-

46 In this case, of course, post-conviction relief is obviously the 
most effective remedy, since Petitioner will not even begin to serve 
his disputed sentence until his twenty-year undisputed sentence has 
been completed. See p. 5, supra. Thus, if Petitioner promptly files 
a request for collateral relief and prevails, he can obviate any 
deprivation of liberty in advance, effectively eliminating any harm 
whatsoever.

47 See Walker v. Kruse, supra, 484 F.2d at 804; Vance v. Robin­
son, 292 F. Supp. 786, 787 (W.D.N.C. 1968); Martin v. Hall, 20 
Cal. App. 3d 414, 97 Cal. Rptr. 730 (1971). In post-conviction 
proceedings alleging ineffective assistance of counsel, by contrast, 
the defendant ‘ ‘ need not establish that he was entitled to reversal, ’ ’
People v. Lang, 11 Cal. 3d 134, 113 Cal. Rptr. 9, 12 (1974), and 
some courts have held that he is not required to offer evidence of 
prejudice at all. Moore v. United States, supra, 432 F.2d at 737.

117



48

inal action. S e e  W a lk e r  v. K r u s e ,  s u p r a , 484 F.2d at 
804 (noting that malpractice plaintiff may be required 
to prove absence of contributory negligence). Finally, 
since the dissatisfied defendant may be required to 
exhaust post-conviction remedies and then may be 
collaterally estopped from bringing a malpractice ac­
tion if he is unsuccessful, even complete abrogation 
of the immunity doctrine would be of little practical 
benefit to criminal defendants.48 S e e  W a lk e r  v. K r u s e ,  
s u p r a , 484 F.2d a t 804 n .l; L a m o r e  v. L a u g h lin ,  82 
TT.S. App. D.C. 3, 159 F.2d 463 (1947).49

I t  is important to emphasize that post-trial crim­
inal relief may be especially effective for clients of 
court-appointed, as opposed to retained, counsel. Sev­
eral courts have expressed marked reluctance to grant 
such relief on grounds of inadequacy of counsel “ when 
counsel was privately retained” and chosen by the 
client himself, sometimes suggesting that a different 
and more difficult standard of review may be appli­
cable in such cases than when appointed counsel, as to 
whom a defendant had no choice, is involved. D a v is  v.

48 Despite the lack of ultimate benefit to the criminal defend­
ants, however, abrogation of the immunity doctrine still would 
cause considerable hardships for the attorney compelled to respond 
to such suits, even if they are ultimately unsuccessful. See pp. 
35-36, 41-42, supra.

49 If exhaustion is not required, or if collateral estoppel were 
held not applicable, criminal defendants could be expected to bring 
both malpractice and post-conviction proceedings, creating “ the 
risk of injecting extraneous concerns” into such proceedings. 
Imbler v. Pachtman, supra, 424 U.S. at 428 n.27; see note 9, supra. 
In any event, the effectiveness of malpractice as a remedy is highly 
questionable, since the author of a recent annotation could find no 
reported American decision imposing malpractice liability upon 
even a retained criminal defense attorney. See Annot., 53 A.L.B.3d 
731 (1973).

118



49

B o m a r ,  344 F.2d 84, 86 (6th Cir.), cer t, d e n ie d , 382 
U.S. 883 (1965); see L o f t i s  v. E s te l le , 515 F.2d 872, 
874 n.2, 875 (5th Cir. 1975) ; D a v is  v. S la y to n ,  353 F. 
Supp. 571, 574 (W.D. Va. 1973). S e e  also W i l k in s  v. 
U n ite d  S ta te s ,  47 U.S.L.W. 5714 (U.S., Apr. 30,1979) 
(allowing late filing when appointed counsel failed to 
fulfill duty to client). Defendants served by appointed 
counsel thus may well receive more meaningful access 
to post-conviction remedies than do defendants who 
hire counsel.

Finally, as this Court has recognized, a rule of mal­
practice liability for government-sponsored prose­
cutors and defense attorneys “ often would prejudice 
defendants in criminal cases by skewing post-convic­
tion judicial decisions that should be made with the 
sole purpose of insuring justice.” I m b le r  v. P a c h tm a n ,  
s u p r a , 424 U.S. at 428. As the Court in I m b le r  noted, 
such post-conviction proceedings are “ focused prim ar­
ily on whether there was a fa ir trial . . . .” I d .  at 427. 
“ This focus,” the Court explained, “should not be 
blurred by even the subconscious knowledge that a 
post-trial decision in favor of the accused” could re­
sult in the advocate “ being called upon to respond in 
damages” for an alleged “ error or mistaken judg­
ment.” I d .

Malpractice liability thus not only fails to provide 
a superior remedy to post-conviction proceedings, but 
also would create a substantial risk of robbing this 
traditional form of relief of much of its fairness and 
effectiveness. This Court therefore should uphold the 
rulings of the federal appellate courts that the avail­
ability of post-trial relief provides defendants with an 
“ adequate remedy.” S e e , e.g ., M in n s  v. P a u l ,  su p ra ,  
542 F.2d at 902; B r o w n  v. J o s e p h ,  s u p r a , 463 F.2d at 
1049.

119



50

2. J u d ic ia l  a n d  p r o fe s s io n a l d is c ip lin e  a n d  
s u p e r v is io n

Apart from post-conviction proceedings, judicial and 
professional discipline can and should be utilized to 
punish attorneys who fail to meet minimum profes­
sional standards. M in n s  v. P a u l ,  s u p r a , 542 F.2d at 
902. For many years, the courts have imposed various 
types of discipline on negligent criminal defense at­
torneys, including fines, reprimand, suspension, and 
disbarment. S e e , e .g ., U n i te d  S ta te s  v. S m i th ,  436 F.2d 
1130, 1133 (9th Cir. 1970) (imposing fine on attorney 
for failure to prosecute appeal with due diligence and 
“ gross neglect of duty” to client); F lo r id a  B a r  v. 
D in g le , 220 So. 2d 9 (Fla. 1969) (reprim and); I n  re  
M a r tin ,  30 App. Div. 2d 361, 292 N.Y.S.2d 328 (1968) 
(suspension); I n  r e  M c D e r m it , 86 N.J. 17, 114 A. 144 
(1921) (disbarment).

Petitioner has claimed that these remedies are in­
effective because they do not offer the necessary finan­
cial incentive to encourage their use by criminal de­
fendants. Pet. B rief at 42. This assertion is belied by 
the facts. For example, in the District of Columbia 
alone, the Board on Professional Responsibility, the 
local disciplinary agency, reports that D.C. jail in­
mates last year filed 232 disciplinary complaints 
against counsel appointed under the Criminal Justice 
Act. Office of B ar Counsel, District of Columbia Court 
of Appeals Board on Professional Responsibility 
(hereinafter “ B ar Counsel” ), A n n u a l  R e p o r t ,  at At­
tachment 2 (1978).50 Thus, criminal defendants appear 60

60 Of these 232 disciplinary complaints against court-appointed 
counsel, 215 were dismissed by Bar Counsel, after a preliminary 
inquiry, on the grounds that the complaint did not warrant even 
the opening of a file on the matter. Bar Counsel, Annual Report, 
at Attachment 2 (1978).

120



51

to need no additional encouragement to use available 
disciplinary remedies.

In  addition, to the extent that deterrence of improper 
conduct is deemed important, such professional disci­
pline is far superior to malpractice litigation. P eti­
tioner himself has claimed that attorneys may pur­
chase insurance to cover malpractice liability (Pet. 
B rief at 46), but counsel cannot protect themselves 
from the potentially devastating consequences of dis­
ciplinary action imposed by bench and bar.51

Moreover, the Criminal Justice Act itself serves to 
encourage the courts and the bar to help protect the 
rights of indigents to effective assistance of counsel. 
The courts have recognized their “ duty to implement 
the policies embodied in the Criminal Justice Act.” 
U n ite d  S ta te s  v. W il l ia m s ,  411 F. Supp. 854, 856 
(S.D.N.Y. 1976). S e e  a lso  W i l k in s  v. U n ite d  S ta te s ,  
47 U.S.L.W. 5714 (U.S., Apr. 30, 1979) (noting the 
“ strong interests” of the courts “ in ensuring that 
lawyers appointed to aid indigents discharge their 
responsibilities fa irly”). Accordingly, the courts in­
creasingly have begun to discharge vigorously their 
responsibilities under the Act, employing such methods 
as levying fines upon counsel who fail to act with due 
diligence, and refusing to permit trials to go forward 
where a defendant is not competently represented,

51 In fact, Petitioner contradicts his own arguments concerning 
the deterrent effect of malpractice liability. On the one hand, Peti­
tioner asserts that government-sponsored defense attorneys need 
the ‘ ‘ extra push ’ ’ which the fear of liability would allegedly bring. 
Pet. Brief at 54, 45. On the other hand, Petitioner claims that 
abrogation of immunity would not deter attorneys from represent­
ing indigents, since insurance could mitigate any fear of liability. 
Id. at 46. These contentions are, by their very nature, funda­
mentally inconsistent.

121



52

thus effectively discharging unqualified counsel and 
preventing significant harm to the indigent accused.52 
S e e  U n ite d  S ta te s  v. R iv e r a ,  473 F.2d 1372 (9th Cir. 
1972); U n ite d  S ta te s  v. W il l ia m s ,  s u p r a , 411 F. Supp. 
at 856-57.

Such judicially imposed measures can be especially 
effective when combined with administrative steps to 
help ensure that only fully qualified counsel receive 
Criminal Justice Act appointments in the first place. 
For example, as Petitioner himself has observed, one 
federal district has implemented a “stringent certifi­
cation process” which, despite the absence of mal­
practice liability, has apparently produced “ adequate 
counsel for criminal defendants.” Pet. Brief at 47.

Respondent does not disagree with Petitioner’s con­
tention that the quality of service rendered by pub­
licly supported defense attorneys is sometimes inade­
quate. Various solutions to the problem are available 
and should be encouraged, including more effective 
professional and judicial discipline, better funded and 
more stringently administered Criminal Justice Act 
programs, and stricter educational requirements. Abro­

52 The Criminal Justice Act specifically provides that the courts 
may, “ in the interests of justice,” replace appointed counsel “ at 
any stage of the proceedings,” thus providing expressly for such 
judicial supervision of counsel for the indigent. 18 U.S.C. § 3006A 
(c). See Burger, The Special Skills of Advocacy, 42 Fordham L.E. 
227, 239-40 n.24 (1973). The courts also supervise the lists of 
attorneys deemed qualified for such appointments, thus providing 
an opportunity to ensure that only competent counsel are appointed 
under the Act. See Pet. Brief at 5a-6a. See also McMann v. Rich­
ardson, 397 U.S. 759, 771 (1970) (suggesting that the courts 
should ensure that assistance provided by appointed counsel is 
“ within the range of competence demanded of attorneys in crimi­
nal cases” ).

122



53

gation of the recognized doctrine of immunity for gov­
ernment-sponsored defense attorneys, however, is not 
the answer. Such an action would only make it more 
difficult for indigent defendants to receive effective 
assistance of counsel and for defense attorneys to ful­
fill their obligations both to their clients and to the 
administration of justice.

U. Equal Protection Concepts Do Not Bar Application of the 
Official Immunity Doctrine to Government-Sponsored Defense 
Counsel.

Petitioner also argues that the equal protection con­
cepts inherent in the F ifth  Amendment53 prevent ap­
plication of the official immunity doctrine to attorneys 
appointed by the courts to represent indigent defen­
dants. S e e  Pet. Brief at 51-58. However, the Pennsyl­
vania Supreme Court’s decision does not burden any 
“ fundamental rig h t” or create any “ suspect classifi­
cation” that would require strict scrutiny under equal 
protection standards. Therefore, the distinctions at 
issue must be upheld if they are rationally related to 
a legitimate governmental interest. As demonstrated 
below, the distinction between appointed and retained 
counsel with regard to liability for malpractice dam­
age suits more than satisfies this constitutional stand­
ard. 63

63 The Fifth Amendment, of course, does not contain an equal 
protection clause, such as that which the Fourteenth Amendment 
makes applicable to the states. This Court has held, however, that 
the Fifth Amendment’s due process clause requires the federal 
government to conform to essentially the same equal protection 
standards as are required by the Fourteenth Amendment. See, e.g., 
Mathews v. DeCastro, 429 U.S. 181, 182 n.l (1976) ; Hampton v. 
Mow Sun Wong, 426 U.S. 88, 100 (1976) ; Weinberger v. Wiesen- 
feld, 420 U.S. 636, 638 n.2 (1975).

123



54

A. The decision below did not infringe any "fundamental right" 
or create a "suspect classification."

This Court has held repeatedly that where govern­
ment employs suspect classifications, such as race, or 
impinges upon “ fundamental rights,” the Court will 
employ strict scrutiny and invalidate state action un­
less justified by a compelling state interest. S e e , e.g ., 
L o v in g  v. V ir g in ia ,  388 U.S. 1 (1967) (racial classifi­
cation) ; S h a p ir o  v. T h o m p s o n , 394 U.S. 618 (1969) 
(fundamental right of interstate travel). Any other 
governmental action complies with equal protection, 
however, so long as the classifications employed are 
“ rationally related to a legitimate state interest.” N e w  
O rlea n s  v. D u k e s , 427 U.S. 297, 303 (1976). S e e , e.g ., 
H a w e s  v. C luh  E c u e s tr e  E l  C o m a n d a n te , 535 F.2d 
140, 144 (1st Cir. 1976) (rejecting equal protection 
challenge to federal court rule concerning security 
bond requirements for non-domiciliary plaintiffs be­
cause rule had “ rational relationship to a legitimate 
objective” ).

Petitioner appears to suggest in his Brief that strict 
scrutiny would be appropriate here because applica­
tion of the immunity doctrine to court-appointed coun­
sel, but not to privately retained counsel,54 either af­
fects “ two inherently fundamental rights” (right to 
counsel and right of access to the courts), see  Pet. 
B rief at 51-52, or classifies on the basis of wealth, see  
id . at 54-56. Petitioner’s effort to force this case into 
a strict scrutiny mold is misplaced.

The obvious flaw in Petitioner’s “ fundamental 
rights” argument is the simple fact that the holding 64 * * *

64 The opinion below, of course, did not relate in any way to the
malpractice liability of privately retained counsel, and the court
thus did not address the equal protection arguments advanced by
Petitioner here.

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55

below does not abridge or affect either the right to 
counsel or the right of access to the courts. The Sixth 
Amendment grants Petitioner the right to the effective 
assistance of counsel. Attorneys appointed to carry 
out that constitutional command are required by the 
Code of Professional Responsibility, and by the Sixth 
Amendment itself, to provide precisely the same qual­
ity legal services that would be available to a paying 
client. S e e  pp. 45-46, s u p r a .55 While Petitioner’s Sixth 
Amendment right to counsel is fundamental, there is 
no basis for his suggestion that a particular remedy for 
alleged violations of that right is somehow a part of 
that fundamental right. “No one has a vested right in 
any given mode of procedure,” and “ so long as a sub­
stantial and efficient remedy remains or is provided due 
process of law is not denied.” C ra n e  v. H a h lo , 258 U.S. 
142, 147 (1922).56 As is discussed at pp. 44-53, su p ra ,  
there are several remedies, other than malpractice suits, 
available to protect Petitioner’s Sixth Amendment 
rights. The ruling in the instant case holds only that 
the immunity doctrine prevents application of one par­
ticular common law remedy—a civil suit for money 
damages—with regard to alleged violations of that 
right.

56 Thus, Petitioner is simply wrong in asserting that the decision 
below creates “ a lower standard of care for appointed counsel 
than for retained counsel.” Pet. Brief at 52. The standard of care 
is exactly the same; the only difference is that one particular 
remedy for violations of that standard is not available against 
appointed counsel. Moreover, as discussed in text, that one remedy 
is far from necessary in order to insure that the Sixth Amendment 
standard is met. See pp. 44-53, supra. 68

68 In fact, even Petitioner has conceded that equal protection is 
violated only if a remedy is “ capriciously or arbitrarily denied” 
to some litigants. Pet. Brief at 55. As demonstrated at pp. 60-62, 
infra, application of the immunity doctrine to government-spon­
sored counsel is neither arbitrary nor capricious, but is supported 
by legitimate and important governmental interests.

125



56

Indeed, in the instant case the m o s t  efficient remedy 
for Petitioner’s claims would be a collateral attack, 
pursuant to 28 U.S.C. § 2255, on the contested portion 
of his sentence. Since Petitioner has not yet begun to 
serve that contested sentence, such a remedy, if success­
ful, would eliminate the “ damages” which Petitioner 
seeks from this civil remedy.

As Petitioner himself admits, see  Pet. Brief at 55, 
there is no constitutional right to sue for malpractice. 
I t  is well settled that a “ person has no property, no 
vested interest, in any rule of the common law,” M u n n  
v. I l l in o is ,  94 U.S. 113, 134 (1876); a ccord , M o n d o u  
v. N e w  Y o r k ,  N e w  H a v e n  a n d  H a r t fo r d  R a ilr o a d  C o., 
223 U.S. 1, 50 (1912), and limitations on common law 
rights and causes of action “ are relatively common­
place and have consistently been enforced by the 
courts.” D u k e  P o w e r  Co. v. C a ro lin a  E n v ir o n m e n ta l  
S t u d y  G ro u p , In c . ,  438 U.S. 59, 88 n.32 (1978). Thus, it 
cannot be said that a malpractice remedy is necessary 
for enforcement of Petitioner’s fundamental right to 
counsel, and the elimination of this one particular rem­
edy in no way abridges that right.67

Petitioner is similarly incorrect in his argument that 
strict scrutiny is appropriate because the immunity 
doctrine affects the right of access to the courts. S e e

67 Even if a malpractice remedy might be useful in certain cir­
cumstances to enforce the Sixth Amendment right to counsel, this 
Court has rejected the argument that an interest should be 
classified as “ fundamental” simply because it may advance or 
help achieve other fundamental rights. San Antonio Independent 
School District v. Rodriguez, 411 U.S. 1, 35, 36 (1973) (rejecting 
argument that the “ peculiarly close relationship” between educa­
tion and rights of free speech and voting renders education a 
fundamental right).

126



57

Pet. Brief at 54-55, citing, in te r  a lia , B o d d ie  v. C o n ­
n e c tic u t, 401 U.S. 371 (1971), and B o u n d s  v. S m i th ,  
430 U.S. 817 (1977). Cases such as B o d d ie  and B o u n d s  
have been concerned with ensuring that potential liti­
gants are able to enter the judicial process in the first 
place, either by eliminating financial entry barriers, as 
in B o d d ie , or by providing law libraries or legal as­
sistance in order to help inmates prepare and file 
pleadings, as in B o u n d s . This right of access, however, 
does not give litigants the right to demand that once 
they get into court the rules of law applied will be to 
their liking. Like any other substantive rule of law 
which works to Petitioner’s detriment, a rule of im­
munity for court-appointed attorneys affects only the 
outcome of a court proceeding, not the right of access 
to the courts in the first place. As Mr. Justice Powell 
emphasized in B o u n d s ,  the right of access concerns 
a litigant’s ability “ to assert such procedural and sub­
stantive rights as may be available to him under state 
and federal law,” and “ implies nothing as to the con­
stitutionally required scope of review of prisoners’ 
claims.” B o u n d s  v. S m i th ,  s u p r a , 430 U.S. at 833 
(Powell, J., concurring).68 Indeed, Petitioner’s court 
access argument might be applied equally to suggest 
that the ju d ic ia l  immunity doctrine is somehow un­
constitutional, since it deprives persons of a forum for 
successful claims against judges. There is simply no 
basis for applying court access decisions to the very 58 * * * * * *

58 See Buck v. United States, 466 F.2d 481, 483 (10th Cir. 1972)
(holding Boddie irrelevant to question of whether sovereign immu­
nity should apply to claim against IRS concerning tax seizures);
Ropico, Inc. v. City of New York, 425 F. Supp. 970, 978 (S.D.N.Y.
1976) (holding that state law suspension of payment of principal
on municipal bonds does not deny access to the courts, but only
“ regulates the remedies” available to bond holders).

127



58

different issue of the proper scope of the immunity 
doctrine. The right of court access is irrelevant to 
Petitioner’s claim in this case.59

Finally, this case involves no “ suspect classification” 
that would call for strict scrutiny standards. Applica­
tion of the official immunity doctrine to court-ap­
pointed counsel does not create a classification ex­
pressly based upon poverty. Instead, the “ classifica­
tion” at issue here is analogous to that involved in the 
Oregon plan for recoupment of costs of court-appointed 
counsel for indigents later able to pay, which plan was 
upheld by this Court in F u l le r  v. O reg o n , 417 U.S. 40 
(1974). The “ entire th rust” of the plan, the F u l le r  
Court held, was to “ insure an indigent effective rep­
resentation of counsel at all significant steps of the 
criminal process. Those who are indigent may condi­
tionally be required to repay because only they, in con­
trast to nonindigents, were provided counsel by the 
State in the first place.” I d .  at 48 n.9.

As in F u lle r ,  the doctrine of immunity for court- 
appointed counsel falls more heavily upon indigents 
because “ only they, in contrast to nonindigents, were 69

69 It should also be noted that, even where the right of access to 
the courts is involved, curtailments of that right are constitutional 
where the curtailed remedy is not the “ sole path to relief” for the 
alleged wrong involved. See Ortwein v. Schwab, 410 U.S. 656, 659- 
60 (1973); United States v. Kras, 409 U.S. 434, 445-46 (1973). 
Here, of course, collateral review proceedings continue to be an 
available “ path to relief” for remedying alleged Sixth Amend­
ment violations. In addition, since the availability of damages for 
malpractice is not itself a fundamental right, no violation of the 
right to court access is implicated. See Ortwein v. Schwab, supra, 
410 U.S. at 659; United States v. Kras, supra, 409 U.S. at 444-45.

128



59

provided counsel by the State in the first place.” Such 
an incidental impact on the poor, however, does not 
w arrant invalidation of the immunity doctrine on 
equal protection grounds. S e e  J e f fe r s o n  v. H a c k n e y , 
406 U.S. 535, 548-49 (1972) (incidental impact on 
blacks of state welfare classification does not deny 
equal protection); J a m e s  v. V a lt ie r r a ,  403 U.S. 137 
(1971) (state rule imposing referendum requirements 
on housing for low income persons, but not on housing 
for wealthier persons, does not deny equal protection).

Even if the doctrine of immunity for court- 
appointed defense attorneys were considered somehow 
to create a classification based on wealth, strict scrutiny 
still would not be justified because the classification 
created is not constitutionally suspect. Less than two 
years ago, this Court unmistakably reaffirmed that it 
has “ never held that financial need alone identifies a 
suspect class for purposes of equal protection analy­
sis.” M a h e r  v. R o e , 432 U.S. 464, 471 (1977).90 
“ [W Jhere wealth is involved,” the Court has held, 
“ the Equal Protection Clause does not require abso­
lute equality or precisely equal advantages.” S a n  A n ­
to n io  In d e p e n d e n t  S c h o o l D is tr ic t  v. R o d r ig u e z , 411 
U.S. 1, 24 (1973).

Thus, as long as judgments are “ rational and not 
invidious,” the Court has emphasized, “ efforts to 
tackle the problems of the poor and needy”—such as 60

60 See also San Antonio Independent School District v. Rodri­
guez, supra, 411 U.S. at 29 (“ this court has never heretofore held 
that wealth discrimination alone provides an adequate basis for 
invoking strict scrutiny . . . .” ) ; Ortwein v. Schwab, supra, 410 
U.S. at 660 (noting that “ [n]o suspect classification” was involved 
in upholding the filing fee requirement) ; United States v. Kras, 
supra, 409 U.S. at 446 (holding that “ rational justification” stand­
ard was applicable to challenge to filing fee requirement).

129



60

the provision of appointed counsel through the Crim­
inal Justice Act without also permitting recovery of 
civil damages—“are not subject to a constitutional 
straightjaeket. ’ ’ J e f fe r s o n  v. H a c k n e y ,  s u p r a , 406 U.S. 
at 546. Strict scrutiny is simply not warranted in 
this case.

B. The doctrine of immunity for government-sponsored defense
attorneys promotes legitimate and important governmental
interests.

Since the established doctrine of immunity for gov­
ernment-sponsored defense attorneys does not infringe 
upon any fundamental right or involve any suspect 
classification, equal protection is not violated so long 
as the principle is “ rationally based” and “ rationally 
related to the achievement” of “ legitimate” govern­
mental interests or objectives. W e in b e r g e r  v. S a i f ,  
422 U.S. 749, 769, 770 (1975); accord , e .g ., M a th e w s  
v. D e C a s tro , 424 U.S. 181, 185 (1976) ; M c G o w a n  v. 
M a r y la n d , 366 U.S. 420, 425 (1961). As demonstrated 
in Section 1(B ), s u p r a , immunity for publicly spon­
sored defense counsel promotes legitimate and impor­
tant governmental interests.

The policies served by the immunity doctrine for 
government-sponsored defense lawyers are the same 
as the interests which underlie immunity for prose­
cutors and judges—ensuring that defense counsel’s 
energies are not deflected from their duties to the ad­
ministration of justice and to their clients, and helping 
to guarantee that they may exercise the independence 
of judgment required by their governmental function. 
S e e  I m b le r  v. P a c h tm a n , s u p r a , 424 U.S. at 423. More 
specifically, as discussed in Sections 1(B ) and (C), 
su p ra , these interests include: preventing conflicts of

130



61

interest between attorney and client; permitting de­
fense counsel to exercise their independent profes­
sional judgment for the benefit of their clients; helping 
to preserve the efficacy of post-conviction remedies; 
encouraging able defense attorneys to serve as court- 
appointed counsel for the indigent; and helping to 
ensure that court-appointed counsel fulfill their ethical 
and professional obligations to the criminal justice 
system. S e e  pp. 26-53, su p ra .

Petitioner claims that the only difference between 
government-sponsored and privately retained counsel 
is the source of their compensation, rendering the 
established doctrine of immunity irrational. S e e  Pet. 
Brief at 56-57. As demonstrated previously, this asser­
tion is simply incorrect. Unlike privately retained 
counsel, who defend only clients who can afford to 
pay, government-sponsored defense attorneys fulfill 
the important governmental responsibility of providing 
representation to indigents accused of crime who 
otherwise could not secure counsel to defend them. In  
addition, unlike privately retained attorneys, the very 
status of government-sponsored defense counsel, in­
cluding the resultant involuntary relationship between 
them and their clients, significantly enhances the bur­
den and the threat of malpractice liability, thus rend­
ering especially acute the dangers that liability could 
pose to the interests of criminal defendants and to the 
administration of justice.

As this Court has recognized, the question of im­
munity involves a delicate balance between the inter­
ests of potential tort plaintiffs in liability and the in­
terests of the government and society at large in im­
munity. S e e  Irn b le r  v. P a c h tm a n , s u p r a , 424 U.S. at 
428. Six federal courts of appeals and numerous other

131



62

federal and state courts have specifically addressed this 
question ( see  pp. 23-25, s u p r a ) ,  and virtually all have 
determined that the balance tips in favor of immunity 
for the same reasons relied upon by this Court in re­
affirming immunity for other government-sponsored 
participants in the criminal justice system. Respon­
dent respectfully submits that this judgment is not 
only rational, but also is essential in order to enable 
government-sponsored defense attorneys to fulfill their 
obligations to their clients and to the administration of 
justice.

For the foregoing reasons, Respondent urges this 
Court to affirm the decision below, upholding the ap­
plicability of the doctrine of absolute immunity for 
government-sponsored defense counsel.

CONCLUSION

Respectfully submitted,

J o h n  P .  A rness 
D avid J .  H ensler 
A llen  R. S nyder
E lliot M. M incberg

N ed J .  N akles 
1714 Lincoln Avenue 
Latrobe, Pa. 15650

H ogan & H artson
815 Connecticut Ave., N.W.
Washington, D.C. 20006

C o u n se l f o r  R e s p o n d e n t

132



63

CERTIFICATE OF SERVICE

I  hereby certify that three copies of the foregoing 
Brief for the Respondent were mailed, postage pre­
paid, this 8th day of June, 1979, to Julian  N. Eule, 
Esquire, Klein Hall, 1719 N. Broad Street, Philadel­
phia, Pennsylvania 19122, counsel for the Petitioner, 
and to Howard B. Eisenberg, Esquire, 2100 M St., 
N.W., Suite 601, Washington, D.C. 20037, counsel for 
a m ic u s  cu r ia e  NLADA.

Allen R. Snyder



APPENDIX



l a

APPENDIX A

Docket Sheet in United States v. Fetri. 
Crim. No. 74-277, W.D. Pa.

UNITED STATES DISTRICT COURT
Criminal Docket 

74-277 
Marsh, J.

Mgstr Mitchell 
The United States

vs.
Ct. 1,2,7,8,9—1. Francis D. Ferri a/k/a Rick 
Ct. 1,2,7,8,9—2. Joseph Laverich 

Ct. 1,2,3-6,7,8,9—3. Kenneth R. Matthews

F o r  U .8 .: Thomas Crawford, Jr.
Michael P. Lesniak 

816 Chatham Center 15219

apptd. 12-13-74 for Ferri: Daniel J. Ackerman Esq.
27 N. Main St. Greensburg 15661

praecipe—Lavrich: John Doherty 
205 Ross St., Pgh 15219

praecipe Matthews : Sidney Baker
230 Union Trust Bldg. Pgh 15219

(TR 73-227, 228, 229 RM in impounded file, affidavits)
(Misc 5989, 5981, 5909) TR 73-225 Joseph Lavrick * (CR 

71-213, 72-245, 73-3) TR 73-234 Francis D. Ferri (transf 
to this case on 8-29-74)

* [Throughout Appendix A, spelling and punctuation are as in 
original.]

137



2a

Violation 9 counts
Ct 1: 18, 844(i) and 371) maliciously damaging or 

attempting to damage by explosives property used 
inintersate, conspiracy

Ct 2: 18, 844(i) and 2: Maliciously damaging or at­
tempt to damage by explosive property in iner- 
statate, aiding and abetting

Cts 3-6: 18, 1341: Mail Fraud
Ct 7: 26, 5861 (d ): rec and poss firearm, not registered 

and aiding and abetting
Ct 8: 26, 5861: recg and poss firearm and aiding and 

abetting
Ct 9: 26, 5861(f): Making a firearm and aiding and 

abetting

Date—Proceedings 
1974
Aug 28—Indictment filed .............................................  1
Aug 28—Indictment filed
Aug 28—Motion by U S Atty and order for b. wearant

for Francis D Ferri (Snyder, J ) ...........................  2
Aug. 28—Bench warrant issued for Francis D Ferri .. 
Aug. 28 Request of US Special Atty for summons for

Laverich and Matthews.........................................  3
Aug 28—Summons issued for Laverich and Matthews 
Aug 29—Transf from TR 73-225 RE Laverich: record 

of proceedings, praecipe for appearance of John 
Doherty, b. warrant, waive of right to counsel, 
$50,000 G.R. bond, bail reform # 2 ...................... 4

Aug. 29—Tranf from 73-234 RE Francis D Ferri: 
Record of proceedings, cja 23 financial affidavit, b. 
warrant, bail reform #2, cja 20 appmt of H. David 
Rothman 6/4/73 by Mgstr Mitchell, recordings of 
proceedings before Mgst Mitchell on 6/14, 6/4,
5/25 ........................................................ ...............  5

138



3 a

Sep 3—Notice setting arraignment of Ferri for 9/16 at
10 AM before Mgstr Mitchell...............................  6

Sep 4—Praecipe for appearance of Sidney Baker for
Matthews filed............................    7

Sep 4—$50,000 0. R. bond filed by deft Kenneth R.
Matthews................................................................

Sep 4—Pet for writ of hab corpus ad proseq and order 
for same for deft Ferri for 9/16 at 10 AM (Snyder,
J) . . . . . . .......................      8

Sep 4—Writ prosequendum issued for F e r r i ....... . --
Sep 5—Summons ret served on 8/28 by certif mail on

Kenneth R Matthews..................................   9
Sept 6—Notice setting arraignment of Laverich and 

Matthews for 10 AM on 9/16 before Mgstr Mitch­
ell ...........................................................    10

Sept 10—Notice resetting arraignmet time to 9 :30
from 10 AM before Mgstr Mitchell 9/16 ................. 11

Sept 16—Not Guilty plea ent by all defts before Mitch­
ell .........................................................................   w/1

Sept 16—Order ent directing that detainer lodged 
against Francis Ferri be lifted (Mgstr Mitchell)
cc Marshal .............................................................  12

Sept 16—Motion for immediate change of institutional 
incarceration filed by Francis Ferri and order of 
Mgstr Mitchell directing Marshal transport deft 
to Lewisburg Penitentiary within 72 hrs—ee Mar­
shal ......................................................................... 13

Sept 18—Summons ret served on 8/28 by certif mail on
Joseph Laverich ....................    14

Sept. 23—B. Warrant ret unserved and b. Warranted
lifted as per order of 9/16/74 as to deft Ferri . . .  15

Sept24—Writ of prosequendum ret exec on Francis
Ferri—ret to Lewisburgh 9/19 ...........................  16

Sept. 25—Deft. Ferri’s motion to dismiss indictment
filed by Francis D. Ferri.................    17

Sept. 25—Deft. Ferri’s motion for severance filed by
Francis D. Ferri....................................................  18

Sept 25—Motion to dismiss indictment filed by deft 
Kenneth R. Mathews . . . . . . . . . . . . . . . . . . . . . . . . .  19

Sept. 30—Motion to proceed in lieu of Rule 5.1 and un­
der the 6th. amendment to the Constitution of the 
U. S. filed by Francis Ferri..................................  20

139



4a

Date—Proceedings 
1974
Sept. 30—Motion to dismiss indictment filed by deft.

Joseph Laverich......... ............................................ 21
Oct. 4—Motion to proceed in lieu of Rule 5.1 (Doc. No.

20) returned to deft. Ferri with instructions to 
proceed through his counsel, with cover letter . . .  22

Oct 10—Notice setting argument on mot to dismiss and
mot for severance for 10/21 at 4 P M ....................  23

Oct 18—Deft Kenneth Mathew’s preliminary memo­
randum in support of motion to dism iss............. 24

Oct 18—Deft Kenneth Matthew’s affidavit in support of
motion to dismiss filed .......................................... 25

Oct 22—Hearing on motion to dismiss and for sever­
ance held before Snyder, J. on 10/21 Memo filed 
(rep none) (evidentiary hearing to be set as soon
as possible) ................ ........................................  26

Nov. 11—Certificate of service, affidavit and motion to 
dismiss indictment filed by deft. Francis D. F e rri.. 27

Nov. 11—Copy of motion mailed to Atty. Rothman . . .  --
Nov 27—Order ent directing Clerk issued writ of hab 

corpus for Francis Ferri for 12/13 at 9:30 (Sny­
der) J) .................................................. ................. 28

Nov 27—Writ Hab Corpus issued for Francis D Ferri . - -
Dec. 2—Motion for leave to withdraw as counsel for

deft. Ferri filed by atty Rothman.................. . 29
Dec 3—Notice setting hearing on mot for leave to with­

draw for 12/13 at 9 :30 A M ................................ . 30
Dee 13—Order of 12/12 reassigning case to Judge

Marsh (Snyder, J) .................................................  31
Dec 13—Motion from deft Ferri re appmt counsel 

filed .............. ....................................................  32
Dec 13—Hearing on deft’s motion re appmt of counsel 

(deft Ferri) held before Marsh, J  memo filed (rep 
M Mimless) (oral order granting D. Rothman be 
withdrawn as counsel (defts Matthew and La­
verich waived certain rights relative to delay be­
tween this hearing date and future date to be
fixed) ..................................................................... 33

Dec 13—Order ent granting motion of Atty Rothman 
to withdraw as counsel for deft Ferri (Marsh, J ) .. 34

140



5a

Dee 13—Order ent directing that evidentiary hearing 
on motions to dismiss of defts Ferri, Laverich and
Matthews and deft Ferri’s motion to sever is contd 
to 1/22/75 at 10 AM—-Further, case to proceed 
for jury selection and trial on term beginning week
of 2/10/75 (Marsh, J) .......................................... 35

Dec 13—cja 20 appmt of Daniel J. Ackerman, 27 N. 
Main St, Greensburg, Pa. 15601 by Judge Marsh
for deft Francis Ferri .........................................  36

Dee 18—Motion for bill of particulars filed by deft
Francis Ferri (pro se) ........................................  37

Dec 18—Order ent denying motion for bill of particu­
lars of Francis Ferri. Copy of deft’s motion shall
be forwarded to apptd counsel (Marsh, J) .........  38

Dec. 20—Order entered directing that the day of Stip
be on or before 1/6/75 (Marsh, J) .......................  39

Dec. 20—Petition for service of subpoenas and pro­
posed order filed by deft. Francis Ferri....... . 40

Dec. 20—-Order entered directing hearing for 1/3/75 
at 9 :30 AM; further ordered that def. show cause
at hearing (Marsh, J.) .............. ..........................  41

Dec. 20-—Order entered directing hearing for 1/27/75 
at 10:00 AM on evidentiary matters. (Marsh, J.) 42

Dec 27—Petition for additional discovery and inspec­
tion filed by deft F e r r i ........................................ 43

Dec. 27—Writ of HC Ad Prosequendum returned exe­
cuted on Def. Ferri 12/13/74; further executed 12/ 
26/74 ......................................................................  44

Dee. 27—Order entered directing that U.S. Marshal is 
directed to issue subpoenas for the following to 
appear in Court 1/27/75 at 10:00 before Marsh,
J . : Donald Kovach, Donald Rossetti, Thomas Liv­
ingston, H. David Rothman, Timothy Sullivan & 
Rodney Fink; Costs to be borne by U.S.; items
3, 4, 5, are denied (Marsh, J) ............................... 45

Dec 30—Order ent re pet for addtl inspection and dis­
covery, directing U S Atty disclose addresses of 
certain persons and govt to provide counsel with 
copies of all written scientific test reports, if any

141



6a

Date—Proceedings
1974

were made, in connection with investigation of deft 
Ferri. Father, request for financial and business 
records of Lynn P Dunn and others be and is 
hereby denied (Marsh, J) ................................ 46

Dec 31—Order ent directing govt allow deft to inspect 
any records in possession of Justice dept or the 
Internal Revenue Service relative to use of Cadil­
lac auto of Mr. Dunn in activities affecting inter­
state commerce, (Marsh, J)  ........................  46A

Dec 31—Gov’t motion for reconsideration of order of 
court dated 12/30/75 filed .................. ........... 47

1975
Jan 3—Hearing on motion for service of subpoenas 

and pet for addtl discovery and inspection as to 
deft Ferri held before Marsh, J—Memo filed (rep 
M Mimless) (case called for hearing by the court.
No counsel present for govt or deft) ....................  48

Jan 7—Transcript of hearing held on pet for addtl dis­
covery and inspection on 1/3 before Marsh, J  (rep
M Mimless) ............................................................ 49

Jan. 8—Addendum to deft. Ferri’s motion for sever­
ance filed ...........................................................   50

Jan. 8—Petition to sequester all witnesses filed by
deft. Francis Ferri ........................................ 51

Jan. 8—Motion to strike count 2 of indictment, and 
to strike 2 cts. of the firearm cts., 7, 8, & 9, to 
strike from cts. 7, 8 & 9; Title 18 Sec. 2 filed by
deft. Ferri...............................................................  52

Jan. 8—Copies of Documents 50, 51 & 52 mailed to atty. 
Ackerman.

Jan. 8—Order ent setting hearing on deft Ferri’s mo­
tions for 1/27 at 10:00 AM (Marsh, J) ..............  53

Jan. 10—cja 21, authorization for services of Fred C. 
Koerner, Marsh, J. (copy forwarded to budget
office by P Wolf) re deft F e r r i ..............................  54

Jan 13—Hearing on mot to reconsider by U S held 
before Marsh, J—Memofiled (rep Mimless)........... 55

142



7a

Jan 13—Pet for writ of hab corpus ad proseq filed by 
U S and order ent directing same be issued for
Francis Ferri (Marsh, J ) ......................................  56

Jan 13—Writ proseq issued for Francis F e r r i ...........
Jan 13—Order ent directing govt provide list of ad­

dresses of witnesses including that of Kirk Fella- 
bom, James P Fahey, James H Roberts, Raymond 
Bosnich, Roland T Norton, Robert Galvin, and 
Joseph O’Toole; Further addresses to be revealed 
only to Mr. Fred C Korner, KBI Intelligence by 
1/20/75, and he is directed not to reveal same. Fur­
ther, Clerk directed to seal pleadings #43, 46,
46A, 47, 48, 49, 55 and docket entries. Not to be
opend except by further order of court. Clerk is 
permitted to docket future docket entries (Marsh,
J) (above pleadings impounded—docket sheet im­
pounded separately) ....... ........... ........................  57

Jan. 24—Motion for reconsideration of defts motion 
for discovery and/or bill of particulars filed by
deft. Francis Ferri................................................  58

Jan. 24—Supplement to motion to dismiss the indict­
ment filed by deft. Francis Ferri........................... 59

Jan 27—Hearing begun before Marsh, J. contd to 1/28
(rep M Mimless (clerk F. Duffy) ....................

Jan 28—Hearing on pending motions continues before
Marsh, J  .........................................................

Jan 29—Hearing on pending motions continues.........
Jan 29—Hearing on pending motions continues and 

concludes—Memo filed (rep M Mimless) (order to
be ent) (trial set for 2/10/75) .............................  60

Feb. 4—Motion for re-consideration filed by deft. Fran­
cis D. Ferri............................................................ 61

Feb 4—Pet by U S Atty for writ of hab corpus ad 
testif from Guy Elias Bertini filed and order ent
directing same be issued (March, J ) .................... 62

Feb 4—Writ testif issued for Guy Elias Bertini 
Feb. 4—Order ent denying motion of deft Ferri for 

severance, denying the addendum to deft* Ferri’s

143



Date—Proceedings 
1975

motion for severance filed pro se on 1/8; Further, 
motion of Ferri to strike certain counts is denied

8a

(Marsh, J) ............................................................ 63
Feb 5—Order ent cenying motion of deft Ferri for re­

consideration (Marsh, J) .............. ................. 64
Feb 5—Opinion ent concluding that the pre arrest and 

pre indictment delay was not violate of the right of 
any deft to speedy trial pursuant to 6th amend­
ment or the right of any deft to due process pursu­
ant to 5th amendment; nor has the post-indictment 
delay been unreasonable in violation of Buie 48(b) 
Fed B Crim P. Motions to dismiss were properly
denied (Marsh, J) .................................................  65

Feb. 6—Questions for Voideere filed by deft Ferri; Mo­
tion for new jury panel filed by deft Ferri; Motion 
for order to have psychiatrist examine Bertini and 
apptmt of dynimite blastings expert filed by deft
Ferri ............................................................... . 66

Feb 6—Order ent denying motions of Ferri for psy­
chiatrist to examine Bertini for apptmt of duni- 
mite (sic) Blastings expert; and mot for new jury
panel. (Marsh, J) ..................................................  67

Feb. 7—Motion for re-consideration filed by deft. Ken­
neth Matthews.................   68

Feb 10—Motion for reconsideration filed by counsel
for Joseph Laverich............................................... 69

Feb 10—Order ent denying motion of deft Kenneth B
Matthews for reconsideration (Marsh, J) ............. 70

Feb 10—Order ent denying motion of deft Joseph
Laverich for reconsideration (March, J) ............. 71

Feb. 11—Petition to sequester all witnesses filed by
deft. Francis Ferri................................................  72

Feb. 11—Motion for leave to change plea filed by deft.
Francis D. F e r r i ....................................................  73

Feb 12—CJA 23 financial affidavit for witness Guy
Elias Bertini reed from Mgstr Mitchell ................. 74

Feb 12—Order apptg public defender for witness Guy 
E Bertini by Mgstr Mitchell..................................  75

144



9a

Feb. 14—Petition for dismissal of U S Atty as Prose­
cutor for govt filed by F e r r i ................    76

Feb 14—Motion to dismiss indictment filed by deft
Ferri ......................................................................  77

Feb 14—Request for Voir Dire filed by counsel for
Kenneth Matthews ................................................  78

Feb. 14—blearing on motion of Ferri to change plea— 
denied orally by court; Pet to sequester witnesses 
granted orally by court; Pet to dismiss prosecutor 
—denied orally; Motion to dismiss indictment, 
CAV. (All defts request case beginf 2/18; objected 
to by Govt. Court granted case start 10 AM on
2/18) Memo filed (rep M Mimless) ......................

Feb. 18—Jury Selected—Time 10:50 to 1 :1 5 ...........
Feb. 18—Jury Trial Begun as to all 3 defts before

Marsh, J. (rep M Mimless) ....................................
Feb. 18—Hearing (during trial) on oral motion for 

mistrial held before Marsh, J —denied orally.
Memo filed (rep M Mimless( ................................

Feb 19—Jury Trial Continues before Marsh, J .........
Feb 19—Order ent, 2/18, denying motion of deft Ferri

to dismiss indictment (Marsh, J) ................ . 81
Feb 19—Hearing on oral motion for mistrial of Ferri 

held before Marsh, J  (during trial) Denied orally
by court—Memo filed (rep M Mimless)................  82

Feb 20—Petition by U S and order ent for writ of hab 
corpus ad testif for Daniel Hill (Marsh, J) Issued
for Daniel Hill ...................................................... 83

Feb 20—Pet by U S and order for writ hab corpus ad 
testif for James Jackson (Marsh, J) Issued for J.
Jackson ..................................................................  84

Feb 20—Pet by US and order for writ hab corpus ad 
testif for Robert Stiver (Marsh, J) issued for
Robert S tiver.........................................   85

Feb 20—Pet by U S and order for writ hab corpus 
ad testif for Mark Houmis (Marsh, J) issued for 
Mark Houmis.........................................................  86

Feb 20;—Jury Trial Continues Before Marsh, J, . . . .  
Feb 21—Jury Trial Continues Before Marsh, J, . . . .

145



10a

Date—Proceedings 
1975
Feb 21—Hearing re: letter of 2/19 from WLm Lynch 

to Milton Carp, ordered made part of record and 
marked exhibit (Court) #1—Memo filed (rep M
Mimless) ................................................................. 87

Feb 24—J ury Trial Continues Before Marsh, J, . . . .
Feb 25—J ury Trial Continues Before Marsh, J, . . . .
Feb 25—Hearing re polygraph evidence, deft Mat­

thews, held before Marsh, J —Memo filed (rep M
Mimless) ................................................................. 88

Feb 26—J ury Trial Continues Before Marsh, J —
all 3 defts ...............................................................

Feb 27—J ury Trial Continues Before Marsh, J, . . . .
Feb 27—Motion for reconsideration of motion to dis­

miss indictment filed by F e r r i ......... .....................  89
Feb 27—Motion to dismiss indictment filed by deft

Ferri .................................................................. • • 90
Feb 27—Motion to dismiss indictment filed by deft

Ferri ......................................................................  91
Feb 27—Hearing on mot to suppress testimony of 

Agent Richardson held before Marsh, J  Memo 
filed (rep M Mimless) (objection to testimony of
Richardson by defts, overruled.......................   92

Feb 27—Hearing on motion for judgmt of acquittal 
held before Marsh, J —Memo filed (rep M Mim­
less) (denied orally) .............................................  93

Feb 28—J ury Trial Continues Before Marsh, J  . . . .
Feb 28—Hearing on motion for severance by deft Lav- 

erich held before Marsh, J—Memo filed (rep M
Mimless) (denied orally) ..................................  94

Feb 28—Order ent denying motions of deft Ferri to 
dismiss and for reconsideration of motions to dis­
miss (Marsh, J) ........    95

Mar 3—J ury Trial Continues Before Marsh, J  . . . .  --
Mar 3—Writ “ etestificandum ret exec on James Jack-

son by M arshal.......................    96
Mar 3—Hearing on written stipulation in lieu of testi­

mony held before Marsh, J. Memo filed (rep M 
Mimless) (attached written stipulation read to 
jury by court) .......................................................  97

146



1 1 a

Mar 3—Hearing on oral motion for judmt of acquittal 
by all defts held before Marsh, J  Memo filed (rep
M Mimless) (denied orally by co u rt).................... 98

Mar 4—Jury Trial Continues Before Marsh, J ..........
Mar 5—Jury Trial Continues and concludes before

Marsh, J —Memo filed (rep M Mimless) ..............  99
Mar 6—Writ proseq ret execon Mark Housmis on

2/27 ........................................................................  100
Mar 6—Jury Returns Verdict : Deft Ferri, Guilty cts

1,2,7,8,9—Verdict sheet filed..................................  101
Deft Laverick, Not Guilty—Verdict sheet filed .. 102 
Deft Matthews, Guilty cts 1 thru 9—verdict sheet 
filed .........................     103

[Post-conviction docket entries omitted]

147



12a

APPENDIX B

Unpublished Opinion in Jones v . W arlick. No. 2006 
(W.D.N.C. 1965), aff'd, 364 F.2d 828 (4ih Cir. 1966)

UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF NORTH CAROLINA 

CHARLOTTE DIVISION

Civil No. 2006 

Ottis Mayo Jones, P la in tiff

vs.
Wilson Warlick, Gordon S. Carr, Arthur Goodman, Jr.,

D efendan ts

O rder G ranting S u m m a ry  Ju d g m en t

The plaintiff, Ottis Mayo Jones, has filed with this court 
what he styles a “ Petition for Declaratory Judgment” 1 
seeking to recover $200,000.00 in damages from the three 
defendants—United States District Judge Wilson Warlick, 
FBI Agent Gordon S. Carr, and Attorney Arthur Good­
man, Jr.—whom he professes to sue as individuals and not 
as officers or agents of the United States. The gist of Jones’ 
complaint is that the defendants “knowingly and willfully 
conspired to deprive this Petitioner [of] his Constitutional 
rights to a fair trial, to Counsel of his choice and to the 
immunity guaranteed by the Constitution of the United 
States . . .,” with the result that he was “railroaded” into 
the federal penitentiary at Atlanta, Georgia, where he is 
presently serving a sentence of seven years for violating 18 
U.S.C.A. § 2312. In due course counsel for the defendants 
filed a motion (accompanied by supporting affidavits) re­

1 Jurisdiction is based upon the diversity of the citizenship of 
the litigants and the existence of the requisite amount in con­
troversy.

148



13a

questing that the complaint be dismissed under Rule 12(b) 
of the Federal Rules of Civil Procedure because it failed 
to state a claim upon which relief could be granted, or, in 
the alternative, that summary judgment under Rule 56 
be entered in the defendants’ favor. After a careful con­
sideration of the relevant authorities, particularly those 
cited by the plaintiff, it is the opinion of this court that the 
motion for summary judgment should be granted.

Despite the plaintiff’s insistence that he is suing them as 
individuals, the fact remains that two of these defendants 
are United States governmental officials and the third de­
fendant was acting as an officer of a federal court when he 
(at the request of the court) represented Jones on the 
criminal charges which had been brought against him. It 
is settled law that federal public officials are not subject 
to civil suit for acts performed by them in the course of 
their official duties. B a rr  v. M atteo , 360 U.S. 564, 569-76 2 
(1959); H ow ard  v. L yo n s, 360 U.S. 593, 597-98 (1959); 
B rad ley  v. F isher, 80 U.S. (13 Wall.) 335, 347 (1872); 
H olm es v. E d d y , 341 F.2d 477, 479-80 (4 Cir. 1965); 
Ove G ustavsson  C ontracting  Co. v. F loete , 299 F.2d 655, 
658-59 (2 Cir. 1962), cert, denied, 374 U.S. 827 (1963); 
Gregoire v. B idd le , 177 F.2d 579, 580-81 (2 Cir. 1949), 
cert, denied, 339 U.S. 949 (1950); Jo n es  v. K en n ed y , 121 
F.2d 40, 42 (D.C. Cir.), cert, denied, 314 U.S. 665 (1941); 
Cooper v. O’Connor, 99 F.2d 135, 138 (D.C. Cir.), cert, 
denied, 305 U.S. 643 (1938); Y aselli v. G off, 12 F.2d 396 
(2 Cir. 1926), a ff’d p e r  curiam , 275 U.S. 503 (1927); D evel­
opm ents in  the L a w — R em edies A g a in s t the U nited  S ta te s  
and I ts  Officials, 70 Harv. L. Rev. 827, 833-38 (1957). In the 
B rad ley  case, the civil action for damages was against a 
judge of a court in the District of Columbia, and in Yaselli, 
the defendant was a Special Assistant to the Attorney Gen­
eral, a position somewhat analogous to that of defendant

2 These pages in the Barr opinion contain a statement of the 
rationale of the immunity doctrine.

149



14a

Goodman in the instant proceeding.3 Citing the Y aselli 
case in his opinion for the majority in B a rr  v. M atteo , 
supra. Mr. Justice Harlan expressly stated that the im­
munity which judges enjoy “extends to other officers of 
government whose duties are rela ted  to the jud icia l proc­
ess.” 360 U.S. at 569. (Emphasis added.) The duties of all 
three of the present defendants, clearly insofar as Jones 
was concerned, were related to the judicial process.

Given the settled rule of law, only if the allegedly wrong­
ful actions were manifestly and palpably beyond the scope 
of the defendants’ authority as federal officials could the 
plaintiff prevail. It is not enough to contend, as Jones has 
done in this case, that since they are not authorized to 
commit wrongful acts, a complaint charging federal offi­
cials with having engaged in improper conduct makes the 
immunity doctrine inapplicable. A similar contention was 
presented to the Second Circuit in Ove G ustavsson  Con­
tracting  Co. v. F loete , 299 F.2d 655 (1962), cert, denied, 
374 U.S. 827 (1963). The plaintiff there was complaining 
about certain allegedly false reports made by officials of 
the General Services Administration about the manner in 
which he had performed a construction contract for the 
Government. Anticipating the immunity defense, the plain­
tiff asserted that it did not apply because the Government 
could not authorize the tortious behavior which had alleg­
edly occurred and the defendants “did not have the 
authority to act to injure and damage” him. The court, 
after declaring that the plaintiff’s construction would de­
feat the whole immunity doctrine, stated that “what is 
meant by saying that the officer must be acting within his 
power cannot be more than that the occasion must be such 
as would have justified the ac t . . . .” 299 F.2d at 659, quot­
ing from Judge Learned Hand’s opinion in G regoire v. 
B idd le , 177 F.2d 579, 581 (2 Cir. 1949), cert, denied, 339

3 Both Goff and Goodman were appointed for the limited pur­
pose of participating in specified judicial proceedings.

150



15a

U.S. 949 (1950). This same thought was expressed in 
slightly different words in B a rr  v. M atteo , 360 U.S. 564, 
575 (1959), where the Supreme Court said that “the fact 
that the action here taken was within the outer perimeter 
of petitioner’s line of duty is enough to render the privilege 
applicable. . . Likewise, the Fifth Circuit in N o rto n  v. 
Me Shane, 332 F.2d 855 (1964), cert, denied , 380 U.S. 981 
(1965), in discussing the “scope of authority” required 
for immunity to attach, said that all that is necessary is 
that the act complained of “have more or less connection 
with the general matters commited by law to the officer’s 
control or supervision. . . 332 F.2d at 859, quoting from
Spa ld ing  v. V ilas, 161 U.S. 483, 498 (1896). Every act 
about which Jones complains (either in the complaint or 
in any of the other documents appearing in the record) was 
at least colorably within the scope of the defendants’ au­
thority, as that phrase has been defined by the decided 
cases.

Jones also claims to be suing under 42 U.S.C.A. §1983 
to redress the deprivation of due process which he alleges 
he suffered as the result of the actions of the three de­
fendants. In support of this claim, he cites the Supreme 
Court’s decision in M onroe v. P ape, 365 U.S. 167 (1961), on 
several occasions and quotes extensively from it. How­
ever, his reliance upon section 1983 and the decisions in­
terpreting it is misplaced, for that statutory provision has 
been held applicable only to persons who, acting under 
color of a sta te  or terr ito ria l law, deprive citizens of rights 
secured to them by the Constitution and laws of the 
United States. W heeld in  v. W heeler, 373 U.S. 647, 650 
n.2 (1963); N o rto n  v. M cShane, supra  at 862. The conduct

151



16a

of the present defendants was pursuant to federa l, not 
state, authority.4

There being no genuine issue as to any material fact and 
it appearing that given the allegations in the plaintiff’s 
complaint, the defendants are entitled to a judgment as a 
matter of law, the motion for summary judgment is 
granted.5

(s) J. Spencer Bell
P resid ing  Jud g e

August 24th, 1965

4 In all his many extensive documents, the plaintiff refers to 
only one state statute, the North Carolina attachment statute, by 
which he contends that he was robbed of his money and other 
defense evidence. Certain money which the plaintiff had on his 
person and in a local bank account at the time he was arrested 
by defendant Carr was subsequently legally attached by parties 
other than the present defendants, and the proceeds in question 
were placed in the custody of the Clerk of the Mecklenburg 
County Superior Court for disposition pursuant to law. Further­
more, Jones’ “ robbery” claim has already been heard and re­
jected by this court (Judge Warliek presiding) at a pretrial 
hearing on a motion to suppress certain evidence and by the 
Fourth Circuit on Jones’ direct appeal, United States v. Jones, 
340 F.2d 599, 601 (1965), and it thus does not merit further 
judicial consideration.

5 The plaintiff currently has pending some eight motions in this 
case. In view of his lack of success on the merits, the several 
motions are hereby denied.

152



Supreme Court of tf)e QHmteb H>tate£
OCTOBER TERM, 1978

IN THE

No. 78-5981

FRANCIS RICK FERRI,
Petitioner,

v.

DANIEL ACKERMAN,
Respondent.

ON WRIT OF CERTIORARI TO 
THE SUPREME COURT OF PENNSYLVANIA

REPLY BRIEF FOR THE PETITIONER

JULIAN N. EULE 
Klein Hall
1719 North Broad Street 
Philadelphia, PA 19122 
(215) 787-8975

Court-appointed Counsel 
for Petitioner

153



(i)

TABLE OF CONTENTS

Page

STATEMENT................... ..................................................1
REPLY................................................................................4

I. THE AVAILABILITY OF A SECTION 
2255 MOTION TO COLLATERALLY AT­
TACK A FEDERAL CONVICTION ON 
THE GROUND OF INEFFECTIVE AS­
SISTANCE OF COUNSEL DOES NOT 
JUSTIFY THE FORECLOSURE OF
STATE-CREATED CIVIL DAMAGE AC­
TIONS FOR MALPRACTICE.................................4
A. The Existence of Alternatives to a State-

Created Damage Action is Not an Ap­
propriate Concern of Federal Law........................ 4

B. The Conviction-Oriented Remedy Avail­
able Under Section 2255 Does Not Pro­
vide “Adequate Relief’ for the Wronged 
Individual ..................  5

C. The Conviction-Oriented Remedy Avail­
able Under Section 2255 is Not Effective 
in Ensuring a Better Quality of Repre­
sentation for Indigent Defendants.......................... 8

CONCLUSION.................................................................... 9

155



(a)

TABLE OF AUTHORITIES

Page
Cases:

Bivens v. S ix  Unknown Federal Narcotics Agents,
403 U.S. 388 (1971)....................................... 8

California V. M injares,
___ U.S_____,48 U.S.L.W. 3116 (1979) . . . . . . . . . . . . .  8

Erie R  Co. v. Tompkins,
304 U.S. 64 (1938)............................................. 5

Ferri v. Ackerman,
___ Pa____ , 394 A.2d 553 (1978).............................. 2,6

Ferri v. Rossetti,
___ Pa____ , 396 A.2d 1193 (1979)............................  2,6

M app v. Ohio,
367 U.S. 643 (1961).............. ........................................8

M aryland  v. M arzullo,
435 U.S. 1011 (1978)...................................................... 7

M urdock  v. M em phis,
87 U.S. (20 Wall.) 590 (1875)......................................... 5

United S tates v. Freed,
401 U.S. 601 (1971)........................................................ 3

United S tates v. Heinze,
361 F.Supp. 46 (D.Del. 1973)............................................3

United S tates v. Scharton,
285 U.S. 518 (1931)........................................................ 3

W ainwright v. Sykes,
433 U.S. 72 (1977)........................................   7

Waters v. United States,
328 F.2d 739 (10th Cir. 1964)..........................................3

W ilkins v. United States,
___ U.S______ 99 S.Ct. 1829 (1979)..............................9

156



(Hi)

Statutes:
18 U.S.C. §3006A .............................................................3,6
26 U.S.C. §5861 ..................................................................3
26 U.S.C. §6531 ..................................................................3
28 U.S.C. §2255 .........................  passim
42 U.S.C. §1983 .....................................   5
Books, Articles:

Mallen & Levit, Lega l M alpractice (1977).......................... 7
Project, Eighth  A nnua l Review o f  C rim inal Procedure:

United S tates Suprem e Court and Court of Appeals 1977- 
1978, 67 Geo. L.J. 317 (1978)................................. . 7

157



Supreme Court of t\)t 33mteb States;
OCTOBER TERM, 1978

IN THE

No. 78-5981

FRANCIS RICK FERRI,
Petitioner,

v.

D A N IEL ACKERMAN,
Respondent.

ON WRIT OF CERTIORARI TO 
THE SUPREME COURT OF PENNSYLVANIA

REPLY BRIEF FOR THE PETITIONER

STATEMENT

Petitioner includes this supplemental statement in his 
reply brief in order to bring a subsequent factual develop­
ment to the Court’s attention as well as to correct a number of 
misimpressions engendered by Respondent’s recitation of 
the facts.

[ 1 ] In his “ traversal brief’ filed in the Pennsylvania Court 
of Common Pleas, Ferri acknowledged the possibility of a 
collateral attack on his conviction on the ground of 
“ ineffective representation of counsel” and declared his 
intention “ to exercise that remedy” (A.32). Such an attack

159



has now been commenced. On September 7, 1979, amotion 
under 28 U.S.C. §2255 was filed by Petitioner in the United 
States District Court for the Western District of Pennsyl­
vania (Civ. No. 79-1255). Respondent’s brief suggests (i) 
that the grant of a §2255 motion “would moot any damage 
claims” available to Petitioner (Resp. brief at 5 n. 9; 47 n. 
46) and (ii) that the mere availability of such a post­
conviction procedure justifies the foreclosure of all state- 
created civil malpractice actions against federal court- 
appointed attorneys (Resp. brief at 44-49). There is no merit 
to either argument. S ee  Point I, infra.

[2] Petitioner is currently serving a thirty-year prison 
sentence, the result of a twenty-year sentence for offenses 
under the Criminal Code (Title 18, United States Code) and 
a consecutive ten-year sentence for offenses under the 
Internal Revenue Code (Title 26, United States Code). On 
page 4 of Respondent’s brief the twenty-year sentence is 
described as “not subject to question”. Similarly, at a later 
point, Respondent argues that ‘‘ Petitioner will not even begin 
to serve his disputed sentence until his twenty-year un­
d isp u ted  sentence has been completed” (Resp. brief at 47 
n. 46) [emphasis added]. While the instant action - F erri v. 
A c k e rm a n  - concededly concerns only the ten-year 
sentence, the Respondent’s language conveys a serious 
misimpression. In a contemporaneously-filed malpractice 
action against prior counsel, Ferri directed his attack toward 
those counts leading to the twenty-year sentence. See  Pet. 
brief at 5 n. 3. That action was dismissed by the Pennsyl­
vania courts solely on the authority of F erri v. A ck erm a n ,
___ Pa____ , 394 A.2d 553 (1978). S e e  F erri v. R osse tti,
___ P a____ , 396 A.2d 1193 (1979). The Petition for a
Writ of Certiorari in R ossetti, 78-6153, was filed in 
February 1979 and is apparently being held in abeyance by

160



3

this Court pending the resolution of the instant action. To 
describe Ferri’s malpractice claim as involving solely the 
ten-year portion of his sentence is, therefore, a fragmentary 
portrayal of the facts.

[3] This Court granted certiorari to decide whether a 
private attorney, appointed as defense counsel under the 
Criminal Justice Act (18 U.S.C. §3006A), enjoys an 
absolute federal common-law immunity from a common-law 
malpractice action f o r  h is  fa i lu r e  to  ra ise  a  s ta tu te  o f  
lim ita tio n s  de fen se  on his client’s behalf (Pet. brief at 3).

Notwithstanding the posture of this case both below and as 
presented in the certiorari petition, Respondent seeks to 
undermine the merits of petitioner’s claim by implying that 
no such defense existed. On page 4 of his brief, Respondent 
quotes a narrow exception to the general three-year statute of 
limitations applicable to prosecutions under the internal 
revenue laws. S e e  26 U.S.C. §6531 (A six-year period is 
provided for the offense of “willfully attempting... to evade 
or defeat any tax .. .” ). As this Court made clear, however, in 
its interpretation of §653l ’s predecessor, the six-year 
period “ is an excepting clause and therefore to be narrowly 
construed.” U n ited  S ta te s  v. S ch a rto n , 285 U.S. 518, 521- 
522(1931). S e e a ls o  W a tersv . U n ited  S ta tes , 328 F.2d739 
(10th Cir. 1964). The “willfully . . . evade or defeat” 
language of §6531(2), relied on by Respondent, has uni- 
formily been held applicable only where willful evasion of 
taxes constitutes an essential ingredient under the statute 
defining the offense. U n ited  S ta te s  v. H einze , 361 F.Supp 
46, 54 (D.Del, 1973). S e e  a lso  U n ited  S ta te s  v. Scharton , 
supra, 285 U.S. at 522. The statute under which Ferri was 
charged, 26 U. S. C. §5861, contains no such ingredient S ee  
U nited  S ta te s  v. Freed, 401 U.S. 601, 607-610 (1971).

161



4

REPLY

THE AVAILABILITY OF A SECTION 2255 
MOTION TO COLLATERALLY ATTACK A 
FEDERAL CONVICTION ON THE 
GROUND OF INEFFECTIVE AS­
SISTANCE OF COUNSEL DOES NOT 
JUSTIFY THE FORECLOSURE OF STATE- 
CREATED CIVIL DAMAGE ACTIONS 
FOR MALPRACTICE.

Respondent, conceding the often inadequate nature of 
representation provided by appointed attorneys (Resp. brief 
at 52), seeks to convince this Court that the conviction- 
oriented remedy provided by 28 U.S.C. §2255 is both 
adequate and desirable as the exclusive source of relief for 
the ineffectively represented indigent.1 There are in­
numerable flaws in this position.2

A. The Existence of Alternatives to a State- 
Created Damage Action is Not an Appropriate 
Concern of Federal Law.

As Petitioner’s opening brief demonstrates, the question 
of whether a private attorney, appointed to represent an 
indigent defendant under the Criminal Justice Act, may be 
sued for common-law malpractice is not governed by 
principles of federal common law (Pet. brief at 16-31). For

‘Respondent points also to the availability of judicial and professional 
discipline (Resp. brief at 50-53). Such remedies, however, do nothing to 
compensate the wronged party.

2 All the arguments which follow apply with equal force to the habeas 
corpus remedy available where the §2255 procedure is shown to be 
“ inadequate or ineffective”.

162



5

the same reasons, the adequacy and desirability of alterna­
tive remedies to such a common-law suit are questions for the 
state court alone. Petitioner seeks a remedy afforded by the 
state to all its citizens. To permit a fedeal court to alter or 
modify this state substantive law as a matter of federal 
common law would set Erie R  Co. v. Tompkins, 304 U.S. 
64 (1938), on its head.3 The cases cited by Respondent for 
the proposition that alternative remedies may prompt the 
grant of immunity (Resp. brief at 45, 49) are not to the 
contrary. In each of these the dispute concerned the reach of 
42 U.S.C. §1983. It is hardly surprising that when a 
federally-created remedy has been sought, a federal court 
may construe Congressional intent or construct federal 
common law in light of the wronged individual’s ability to 
obtain alternative redress. But this Court is not being asked 
to define the scope of a federal remedy. Nor is any manifest 
federal interest involved. See Pet. brief at 25-31. No more is 
at issue than a private individual’s right to sue another private 
individual, see Pet. brief at 17-24, under state law.

B. The Conviction-Oriented Remedy Available 
Under Section 2255 Does Not Provide 
“Adequate Relief’ for the Wronged Indi­
vidual.

Quite apart from its disservice to the interests of 
federalism, Respondent’s argument rests upon the un­

3The limitations of Erie bind this Court in its appellate consideration of 
common-law actions commenced in state court just as surely as they bind 
federal courts in their adjudication of diversity claims. C f Murdock i>. 
Memphis, 87 U.S. (20 Wall.) 690 (1875) (If the Court assumes 
jurisdiction of a case because of a federal question decided in the state 
court it may not proceed further and consider separate questions of state 
law).

163



6

supportable proposition that the §2255 remedy is adequate 
to vindicate “defendants’ rights to effective assistance of 
counsel” (Resp, brief at 45).

The sole relief proided under §2255 is the vacating or 
setting aside of the sentence. Its impact is solely prospective. 
It offers no redress for past periods of incarceration, lost 
income, destruction of reputation and expenditures for legal 
assistance incurred in pursuing post-conviction relief.4 This 
inadequacy is made all the more significant by the frequently 
long period of time which may elapse between the time of the 
trial and the discovery of appointed counsel’s errors.5 In the 
usual circumstances the indigent will be incarcerated during 
the intervening months or years.

Respondent implicitly recognizes this deficiency in the 
conviction-oriented remedy6 but finds it inapplicable to the 
instant case “[sjince Petitioner has not yet begun to serve 
[the] contested sentence” (Resp. brief at 56). As noted in the 
“ statement” segment of this reply, however, this presenta­
tion of the facts is misleadingly fragmented and reflects only 
the fortuitous circumstance that Ferri v. Ackerman 
preceded Ferri v. Rossetti in the Pennsylvania Supreme 
Court. In any event, Respondent’s argument goes to the 
question of damages rather than to the issue of liability. 
Surely, no purer example of a state law question could be

‘‘Appointment of counsel for §2255 proceedings rests with the 
discretion of the court or magistrate. See 18 U.S.C. §3006A(g).

!The instant case provides an illustration of this possibility. It was not 
until eighteen months after his conviction that Petitioner first became 
aware of the waiver of the statute of limitations defense by his counsel’s 
failure to raise it during the course of trial (A.31 n. 1).

6Of course, under Respondent’s position, this deficiency would impact 
only on those without the financial ability to pay for an attorney. The 
remedy of a civil suit would remain for those with retained counsel.

164



7

found. S e e  Point I A, supra .
Respondent’s proffering of post-conviction collateral 

attack as an alternative remedy is flawed, however, by more 
than the inadequacy of the relief §2255 affords. Respondent 
mistakenly assumes that there is “no practical difference” 
between the criteria employed on post-conviction review 
where ineffective assistance of counsel has been alleged and 
the civil malpractice standard (Resp. brief at 45-46). Legal 
malpractice has been defined by statute or judicial decision 
in widely varying language by each of the fifty states. See  
Mallen & Levit, L e g a l M a lp ra c tice  §§111-120 (1977). 
Similarly, no consensus has emerged among the eleven 
federal courts of appeals on the degree of inadequate 
representation that constitutes “ ineffective assistance of 
counsel” in violation of the Sixth Amendment. S ee  
M a r y la n d  v. M a rzu llo , 435 U.S. 1011 (1978) (Opinion of 
Rehnquist, J., dissenting from the denial of certiorari); 
W a in w rig h t v. S yk es , 433 U.S. 72, 105 n. 6 (1977) 
(Brennan, J., dissenting). S e e  a lso  Project, E ig h th  A n n u a l  
R ev iew  o f  C r im in a l P rocedure: U n ited  S ta te s  S u p rem e  
C o u rt a n d  C ourts  o f  A p p e a ls  1 9 7 7 -1 9 7 8 , 67 Geo. L.J. 317, 
515-521 (1978). When the states are understandably 
diverse as to what constitutes civilly actionable malpractice 
and the federal courts cannot agree what level of competence 
satisfies the constitutional imperative, it is difficult to 
understand what Respondent is comparing when he portrays 
the standards as substantially identical.

165



C. The Conviction-Oriented Remedy Available 
Under Section 2255 is Not Effective in En­
suring a Better Quality of Representation for 
Indigent Defendants.

“Historically, damages have been regarded as the 
ordinary remedy for an invasion of personal interests in 
liberty.” B iv e n s  v. S ix  U n kn o w n  F ed e ra l N a rco tic s  A gents, 
403 U.S. 388, 395 (1971). In spite of this common-law 
history, Respondent exhorts this Court to adopt a position 
which would leave the reversal of a defendant’s conviction as 
the exclusive remedy for inadequate representation by 
appointed counsel.

The traditional approach of this Court in Fourth Amend­
ment cases has been to permit conviction-oriented remedies 
only when the alternatives prove inadequate to protect the 
integrity of the judicial process and the rights of wronged 
individuals. S ee  M a p p  v. Ohio, 367 U.S. 643, 652-653
(1961). S e e  a lso  C a lifo rn ia  v. M in ja r e s ,___ U. S______ 48
U.S.L.W. 3116 (August28,1979) (RehnquistJ., dissenting 
from denial of stay). Respondent urges precisely the reverse 
stance when dealing with the Sixth Amendment The 
rationale is not readily apparent. Maintenance of the right to 
effective counsel is not inherently best served by conviction- 
oriented remedies. To be sure, the price must be paid for 
years of inferior defense work on the part of appointed 
counsel. Oftentimes the reversal of convictions is deemed 
necessary to invigorate the constitutional right to counsel. 
But there are other choices. Respondent’s approach ad­
dresses the symptoms at the expense of the disease. 
Sentences vacated on Sixth Amendment grounds provide no 
prophylactic fallout. The civil damage action, on the other 
hand, provides a much needed deterrent to the taking of

8

166



9

appointments by those without the requisite experience and 
those without the available time. The presence of such a 
deterrent can, in turn, be expected to upgrade the quality of 
appointed counsel’s performance and decrease the number 
of convictions that must be vacated as a consequence of 
ineffective legal assistance.

This Court recently took notice of the “ all too familiar” 
story of appointed counsel’s indifference to his client’s 
legitimate request for help and articulated its “ strong interest 
in ensuring that lawyers appointed to aid indigents discharge
their responsibilities fairly” . Wilkins v. United States,___
U.S-------- 99 S.Ct. 1829, 1830 (1979). This interest is far
more effectively forwarded by the deterrent of civil 
accountability than by the ad hoc undoing of convictions 
resulting from inadequate representation.

CONCLUSION

For the foregoing reasons, as well as those stated in 
Petitioner’s opening brief, the judgment of the Pennsylvania 
Supreme Court should be reversed and the case remanded.

Respectfully submitted,

/s/ JULIAN N. EULE
Julian N. Eule
Court-appointed Counsel for
Petitioner

167



^uprrrnr (Court of tbr Unttrfc ^tatrs
O ctober T e e m , 1978

IN THE

N o. 78-5981

F rancis P ick  F e e e i, P e t i t io n e r ,  

v.
D a n iel  A ck erm a n , R e s p o n d e n t.

On Writ of Certiorari to the Supreme Court 
of Pennsylvania

BRIEF O F  THE NATIONAL LEGAL AID 
AND DEFENDER A SSO CIA TIO N  

AS AM ICUS CURIAE

B e n ja m in  L eenee  
Chief Defender
Defender Association of Philadelphia
D ouglas R iblet
Deputy Chief of Appeals
Defender Association of Philadelphia
H oward B . E isenbeeg
Director, Defender Division
National Legal Aid and Defender Assn.
2100 M Street, N.W.
Suite 601
Washington, D.C. 20037
C o u n se l f o r  N L A D A  as A m ic u s  C u r ia e

169



INDEX
Page

Interest of NLADA as Amicus Curiae.......................  1

Argument..........................................................................  2
I. Federal Common Law Does Not Afford I m­

munity From Suit for Malpractice to any 
Attorney Appointed to Represent an Indigent 
Defendant Under the Criminal Justice Act, 
Whether the Attorney is Appointed From a 
Panel or Bar Association or is a Member of a 
Federal Public Defender or Community De­
fender Organization................... ...................... 2
A. Granting Immunity from Suit for Malprac­

tice to Federal Public Defenders, Commun­
ity Defenders, or Panel Attorneys is 
Contrary to Our Legal Tradition and the 
Content and History of the Criminal Justice 
Act ...............................................................  3

B. The Public Interest in Providing Effective
Assistance of Counsel to All Criminal De­
fenders Requires that Public Defenders and 
Other Counsel Appointed Under the Crim­
inal Justice Act, Like Their Privately Re­
tained Counterparts, Not be Immune from 
Suit for Malpractice..................................  6

II. Affording Immunity to any Attorney Ap­
pointed Under the Criminal Justice Act, 
While Privately Retained Counsel Remain 
Subject to Suit for Malpractice, Would Vio­
late Equal Protection as an Invidious Dis­
tinction Based on Wealth............................... 11

III. Absolute Immunity Should Not B e Afforded 
to Either Judges, Prosecutors or Defense 
Counsel, Whether Appointed or Retained . . .  14

Co n c l u s io n ........................................................................  17

171



ii TABLE OF AUTHORITIES
Cases : Page
Boddie v. Connecticut, 401 U.S. 371 (1971) ................  13
Brown v. Joseph, 463 F.2d 1046 (3rd Cir.), cert, denied,

412 U.S. 950 (1973) ......... ............................. 4
Burns v. Ohio, 360 U.S. 252 (1959).............................. 8,12
Butz v. Economou, 438 U.S. 478 (1978) ...................... 2,4
Deas v. Potts, 547 F.2d 800 (4th Cir. 1976)...............  7
Douglas v. California, 372 U.S. 353 (1963) . . ............. 12
Draper v. Washington, 372 U.S. 487 (1963) ..............  12
Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1972) . . .  4
Fletcher v. Hook, 446 F.2d 14 (3rd Cir. 1971) ...........  4
Gideon v. Wainwright, 372 U.S. 335 (1963) ................  10
Griffin v. Illinois, 351 U.S. 12 (1956) ..........................  12
Housand v. Heiman,----- - F.2d----- , Slip Opinion 1827

(2d Cir. Mar. 29, 1979) .......................................... 3
Imbler v. Pachtman, 424 U.S. 409 (1976) . . . . . . . . . . . . 4 , 1 5
James v. Strange, 407 U.S. 128 (1972) ........................ 12
Johnson v. Zerbst, 304 U.S. 458 (1938) ........................ 5
Lane v. Brown, 372 U.S. 477 ........................................ 12
Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir.

1971) ............................................ ........................  4
Lindsey v. Normet, 405 U.S. 56 (1972) ......................7,14
Mayer v. City of Chicago, 404 U.S. 189 (1971) ...........  14
Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977) ...........  4
Minns v. Paul, 542 F.2d 889 (4th Cir.), cert, denied,

429 U.S. 1102 (1977) ........................................... 4,7,9
Nelson v. Stratton, 469 F.2d 1155 (5th Cir.), cert, de­

nied, 410 U.S. 957 (1973) ....................................... 7
O’Brien v. Colbath, 465 F.2d 358 (5th Cir. 1972)__  4
Ortwein v. Schwab, 410 U.S. 656 (1973)...................... 13
Pierson v. Ray, 386 U.S. 547 (1967) ...........................  15
Rinaldi v. Yeager, 384 U.S. 305 (1966) ........................ 13
Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1978) .. 4
Ross v. Moffitt, 417 U.S. 600 (1974) .............................  12
Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978) . . . . . . .  4
Smith v. Bennett, 365 U.S. 708 (1961).........................  12
Spring v. Constantino, 168 Conn. 563 (1975)................ 4
Steward v. Meeker, 459 F.2d 669 (3rd Cir. 1972).......  7
Sullen v. Carroll, 446 F.2d 1392 (5th Cir. 1971).........  3
United States v. Kras, 409 U.S. 434 (1973) ............. 13

Statutes:
18 U.S.C. sec. 3006A.........................................passim
42 U.S.C. sec. 1983 ...............................................  4

172



Table of Authorities Continued iii

O t h e r  R e f e r e n c e s :
Page

Hearings on S. 1461 Before the Subcommittee on 
Constitutional Rights of the Senate Judiciary 
Committee, 91st Congress, 1st Session . . . . . .5,11

American Bar Association, S ta n d a rd s  R ela tin g  to 
P rovid ing  D efense S e r v i c e s ...........................  5-6

Code o f P ro fessiona l R e s p o n s ib i l i ty ..................... 6
Casper, “Improving Defender-Client Relations,”

34 N L A D A  B riefcase  114 (1977) ..................  10
O’Brien, Peterson, Wright, and Hostria, “The 

Criminal Lawyers: The Defendants’ Perspec­
tive,” 5 A m J .C r im . L . 275 (1977)................ 10-11

Booknote, “The Right to Effective Counsel: A Case 
Study of Denver Public Defender,” 50 D enver  
L .J . 47 (1973) .................................................  11



Supreme (Emtrt of tfye United States
O ctober T er m , 1978

IN THE

No. 78-5981

F rancis R ick  F erri, P e t i t io n e r ,  

v.
D a n iel  A ck erm an , R e s p o n d e n t.

On Writ oi Certiorari to the Supreme Court 
of Pennsylvania

BRIEF OF THE NATIONAL LEGAL AID 
AND DEFENDER ASSOCIATION 

AS AMICUS CURIAE

INTEREST OF NLADA AS AMICUS CURIAE

(1) The National Legal Aid and Defender Associa­
tion (NLADA) is a not-for-profit organization whose 
primary purpose is to assist in providing effective legal 
services to persons unable to retain counsel. Its  mem­
bers include the great majority of public defender of­
fices, coordinated assigned counsel systems, and legal 
services agencies in the United States. NLADA also 
includes two thousand individual members, most of 
whom are private practitioners.

175



2

(2) NX AD A, while recognizing that such position 
will expose its members to potential civil liability, joins 
petitioner in seeking reversal of the decision of the 
Pennsylvania Supreme Court holding the respondent, 
a court assigned private attorney, immune from a state 
malpractice action. NLADA has a keen interest in ad­
vancing the professionalism of public defenders and 
assigned private counsel, and the Association believes 
that this Court will be aided by the position of the only 
national group which speaks for public defenders.

(3) NLADA also has an interest in protecting the 
rights of our clients and in insuring that they are de­
nied no rights on the basis of their wealth and submits 
this brief in support of our clients’ equal access to the 
civil courts.

(4) The National Legal Aid and Defender Associa­
tion has received the consent of both parties for the fil­
ing of this brief.

ARGUMENT

I. Federal Common Law Does Not Afford Immunity From Suit 
For Malpractice To Any Attorney Appointed To Represent An 
Indigent Defendant Under The Criminal Justice Act, Whether 
The Attorney Is Appointed From A Panel Or Bar Association 
Or Is A Member Of A Federal Public Defender Or Community 
Defender Organization.

In  deciding the propriety of granting immunity from 
suit to particular government officials this Court has 
conducted “ a considered inquiry into the immunity his­
torically accorded the relevant official at common law 
and the interests behind it.” B u t s  v. E c o n o m o u , 438 
U.S. 478, 98 S.Ct. 2894, 2919 (1978). Accordingly, it 
has only extended the extraordinary protection of abso­
lute immunity where such protection is both well estab­

176



3

lished at common law and where the public interest 
clearly requires it. Neither our legal tradition nor the 
public interest in competent representation for indi­
gent criminal defendants supports affording immunity 
to any attorney appointed under the Criminal Justice 
Act. Accordingly, this Court should conclude that all 
such counsel, whether selected from a panel or bar asso­
ciation or appointed by virtue of their position as mem­
bers of a Federal Public Defender or Community De­
fender Organization, may be sued by these indigent 
clients for malpractice in the course of that representa­
tion.

A. Granting immunity from suit for malpractice to Federal Public 
Defenders, Community Defenders, or Panel Attorneys is con­
trary to our legal tradition and the content and history of the 
Criminal Justice Act.

There is no common law tradition of immunity for 
Criminal Justice Act attorneys which is even remotely 
comparable to that of prosecutors, judges, and grand 
jurors. Although such protection has been uniformly 
afforded those imbued with these public functions for 
centuries, the courts have divided over whether the 
relatively new role of a p p o in te d  defense counsel, 
whether private attorney or public defender, warrants 
the same protection. Indeed, only one Court of Appeals 
has suggested that this sub-group of defense attorneys 
should be immunized, S u lle n s  v. C a rro ll, 446 F.2d 1392 
(5th Cir. 1971), while two others have implied the con­
trary, H  ok sa n d  v. I le im a n ,  -----  F.2d -----  (2d Cir.
March 29,1979), slip op. 1827,1832; R o b in s o n  v. B e r g ­
s tr o m , 579 F.2d 401, 411 (7th Cir. 1978), and one state 
supreme court has held that attorneys in its public

177



4

defender system are not so protected. S p r in g  v. C o n ­
s ta n tin o , 168 Conn. 563, 36 2A.2d 871 (1975).1

Moreover, there is no question but that Congress, in 
enacting the Criminal Justice Act and its amendments,

1 Several Courts of Appeals have held that state public defenders 
are immune from actions under the Civil Rights Act. Robinson v. 
Bergstrom., supra; Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977); 
Minns v. Paul, 542 F.2d 889 (4th Cir.), cert, denied, 429 U.S. 1102 
(1977) [court-appointed private counsel] ; Brown v. Joseph, 463 
F.2d 1046 (3rd Cir.), cert, denied, 412 U.S. 950 (1973). To the 
extent that these decisions reflect a desire to equalize the treatment 
of appointed and retained counsel (as to whom there is no state 
action), Brown v. Joseph, supra, 463 F.2d at 1049, they are very 
much in keeping with the basic values of our criminal justice sys­
tem and the policy of the Criminal Justice Act. However, they are 
not explicitly applicable here. To the extent they reflect distinc­
tions between § 1983 suits and malpractice claims, they are like­
wise irrelevant to the ease at bar. Robinson v. Bergstrom, supra, 
579 F.2d at 411 [holding public defenders immune under § 1983 
but suggesting that the plaintiff would still “ have the same state 
action in tort for malpractice against the public defender as a 
former client might have against a retained attorney.” ] ; see also 
O’Brien v. Colbath, 465 F.2d 358 (5th Cir. 1972) [stating that 
§ 1983 was never intended as a vehicle for prosecuting malpractice 
suits against court-appointed attorneys and public defenders] ; 
Fletcher v. Hook, 446 F.2d 14 (3rd Cir. 1971) [tort claim against 
court-appointed counsel for malpractice not cognizable under the 
Civil Rights Act],

Finally, where these opinions purport to apply the test of Im- 
bler v. Pachtman, 424 U.S. 409 (1976), and Buts v. Economou, 
supra, they do so incorrectly, see infra. Neither § 1983 nor any 
considerations of public policy support the position that a state 
public defender aets under color of state law when performing his 
or her function as a defense attorney. Indeed, to so hold would 
reinforce the view, already responsible for much of the indigent 
defendant’s cynicism towards the criminal justice system, that ap­
pointed lawyers are merely another part of the same “ state” sys­
tem which is trying to convict and imprison him. Compare Slavin 
v. Curry, 574 F.2d 1256 (5th Cir. 1978); Espinosa v. Rogers, 470 
F.2d 1174 (10th Cir. 1972); and see also Lefcourt v. Legal Aid 
Society, 445 F.2d 1150 (2d Cir. 1971).

178



5

intended appointed attorneys performing their func­
tion to fall within the “ tradition” of privately retained 
counsel, who are not immune from tort liability to their 
clients. In  the first place, the 1970 amendment to the 
Act itself blurs the distinction between retained and 
appointed counsel by providing for court-ordered re­
imbursement where appropriate. 18 U.S.C. § 3006A. 
More importantly, the purpose of the Act was mani­
festly not to establish a functional distinction between 
attorneys representing defendants in the criminal jus­
tice system, but instead to achieve the goal of J o h n s o n  
v. Z e r b s t ,  304 U.S. 458 (1938) that the system would 
be just as adversarial for the poor as it has always 
been for the rich. At the same time, in all the discussions 
and reports on the 1980 amendments there is not the 
slightest inkling that Congress wanted attorneys ap­
pointed under any facet of the mixed system it created 
to be protected from their own incompetence.

The desire to equate the function of C.J.A. counsel 
with the private attorney is perhaps most evidenced 
by the expressions of co n cern  that defender organiza­
tions would not be independent of the influence of the 
judiciary and the prosecution. This potential problem 
was addressed by Professor Dallin H. Oaks, who 
authored the study report on the legislation at the re­
quest of the Justice Department and the Judicial Con­
ference Committee. He acknowledged the possible 
danger with defender offices but said that the d isa d ­
v a n ta g e  would be overcome by the mixed system ap­
proach, which would on the whole improve the quality 
of representation for indigents. Hearings on S. 1461 
Before the Subeomm. on Constitutional Rights of the 
Senate Judiciary Comm. 91st Cong., 1st Sess., 289, 291- 
297, 301-303 (1969). Furthermore, the A.B.A. S ta n d ­

179



6

a rd s  R e la t in g  to  P r o v id in g  D e fe n s e  S e r v ic e s , which 
were also considered in connection with the 1970 legis­
lation, did not perceive any functional distinction be­
tween retained counsel, appointed counsel, or public 
defenders. To the contrary, the Standards emphasize 
the importance of guaranteeing the integrity of the 
attorney-client relationship regardless of which means 
of providing free defense counsel is selected and the 
concomitant necessity of assuring both the appearance 
and the reality of the appointed lawyer’s independence 
from political and judicial interference. I d . ,  at 348, 
351-352, 366-367.

B. The public interest in providing the effective assistance of 
counsel to all criminal defendants requires that public de­
fenders and other counsel appointed under the Criminal Jus­
tice Act, like their privately retained counterparts, not be 
immune from suit for malpractice.

Where this Court has conferred absolute immunity 
it has done so based on a compelling public interest. 
Immunity has thus been granted judges, prosecutors 
and grand jurors because otherwise the exercise of their 
governmental functions would be severely impeded. 
The public interest behind the Criminal Justice Act, 
however, is not a governmental one but instead the 
need for effective representation for all criminal de­
fendants as mandated by the Sixth Amendment. Since 
that interest is the same whether the defendant’s at­
torney is retained or appointed it follows that just as 
immunizing hired counsel is seemingly unwarranted 
by the public interest, A.B.A. Code of Professional 
Responsibility, D.R. 6-102, so must be affording im­
munity to the appointed attorney. Moreover, that the 
arguments advanced for drawing a distinction between 
appointed and retained counsel on the question of

180



7

immunity in reality reflect at best acceptance of in­
ferior (and therefore unconstitutional) representation 
for the indigent accused and at worst encouragement 
of such defective assistance of counsel.

The main contention advanced for immunizing public 
defenders and other appointed attorneys is that mal­
practice suits will interfere with counsels’ “ full exer­
cise of professionalism, i.e., the unfettered discretion, 
in light of their training and experience, to decline to 
press the frivolous, to assign priorities between indi­
gent litigants, and to make strategic decisions with 
regard to a single litigant as to how best his interests 
may be advanced.” M in n s  v. P a u l ,  s u p r a , 542 F.2d at 
901. Manifest in this position are the views that the 
poor are more likely than the more wealthy to (1) pres­
sure their attorneys into advancing frivolous claims 
and (2) sue their lawyers when they do not. There is 
no empirical data supporting either factual assertion, 
and the second is at least partially belied by the inci­
dence of patently frivolous suits against r e ta in e d  
counsel under the Civil Rights Act. See P e a s  v. P o t ts ,  
547 F.2d 800 (4th Cir. 1976); N e ls o n  v. S tr a t to n ,  469 
F.2d 1155 (5th Cir.) cer t, d e n ie d  410 U.S. 957 (1973); 
S te w a r d  v. M e e k e r , 459 F.2d 669 (3rd Cir. 1972). 
Moreover, it is far more reasonable to attribute any 
frivolous claims by the poor to a lack of faith in de­
fense counsel’s stewardship, see in f r a ,  or to simple 
desperation (the most economically disadvantaged gen­
erally receive the harshest sentences) than to a calloir 
disregard for judicial economy. Finally, this Court has 
repeatedly rejected the argument that the poor may 
be denied rights available to the rich on the elitist sup­
position that they have a greater tendency to abuse the 
judicial process. L in d s e y  v. N o r m e t ,  405 U.S. 56, 77

181



8

(1972); B u r n s  v. O h io , 360 U.S. 252, 257-258 (1959). 
I t  should respond in the same fashion here.

More implicit in the “ professionalism” theory are 
some other disquieting assumptions which deserve com­
ment. The first of these relates to the observation that 
all appointed counsel, and presumably public defenders 
in particular (since they represent indigent clients ex­
clusively), would have inordinate difficulty resisting 
pressure to present meritless claims without immunity. 
This underestimates both the professional integrity of 
attorneys so employed and their devotion to advancing 
only those arguments which will legitimately advance 
the causes of their clients. While the public defender’s 
task may at times be difficult, it will be performed to 
the same high standards with or without immunity.

The second suggestion is that court-appointed coun­
sel are peculiarly required to assign priorities among 
their clients. Obviously, all attorneys must allocate 
their finite time and resources. This does not, however, 
justify that they be protected from tort actions for 
malpractice. The specific reference to this problem with 
respect to appointed attorneys thus implies that they 
are so burdened with work that they cannot adequately 
represent some clients without sacrificing the interests 
of others. This observation is certainly true in all too 
many instances. However, to advance it as support for 
denying compensatory relief to the victims of defective 
assistance of counsel is distressing to anyone concerned 
with the quality of representation for the indigent 
criminal defendant. Restricting the remedies for those 
injured by overworked and inadequately supported 
defender staffs is hardly an acceptable response to the 
problem. Indeed, the only acceptable response to this 
problem is for legislatures, and courts where necessary,

182



9

to insure that appointed counsel be given the resources 
necessary to provide effective assistance of counsel to 
the poor.

An even more insidious argument for immunity has 
been that leaving any appointed attorney open for suit 
will discourage competent attorneys from entering or 
remaining in this field. M in n s  v. P a u l ,  s u p r a , 542 F.2d 
at 901. This argument unfairly impugns the dedication 
and abilities of those lawyers who, in obedience to the 
commands of the Constitution and the standards of our 
profession, regularly defend the poor in criminal cases. 
Moreover, it shares with the first contention the vice 
of implicitly accepting unconstitutional inadequacies 
in our system for providing representation for the 
poor. At the same time, it even more clearly reveals 
the danger that such protection will encourage incom­
petence rather than more effective representation. To 
the extent there is a problem with attracting or retain­
ing skilled attorneys to represent the poor, the rational 
solution is to provide higher salaries and better work­
ing conditions. After all, it could not seriously be con­
tended that the absence of immunity discourages able 
attorneys from representing the rich. I f  there is a 
problem with tort liability, then the funding agency 
should secure malpractice insurance which is readily 
available to defender offices, and which, indeed, is al­
ready carried by many defenders through NLA I)A !s 
group policy.

On the other hand, immunity is a most irrational 
means of stimulating the bar to defend the disadvan­
taged. To an attorney who is competent and devoted 
to such work and to his or her clients a grant of im­
munity from suit is of no moment. By definition he or 
she would not likely provide inadequate representation

183



10

and would not, in any event, desire to violate the 
Canons of Ethics by resisting a claim of malpractice 
by asserting immunity. Such protection would only 
attract to defender work that segment of the legal pro­
fession which would stand to benefit from it, the un­
caring and the incompetent. Since this is the only effect 
of affording immunity to defenders of the poor, to do 
so would clearly violate the promise of G id eo n  v. W a in -  
w r ig h t , 372 I7.S. 335 (1963).

While the analysis of the reasons advanced for im­
munity argues much more persuasively against than 
for it, that process does not exhaust the reasons why 
protection from tort claims is inconsistent with insur­
ing the effective assistance of counsel. No attorney, 
civil or criminal, who makes his or her livelihood rep­
resenting clients would minimize the value of securing 
the client’s trust to successful performance. W ithout 
this critical bond it is impossible to lead even the most 
sophisticated client on the course which is most in his 
or her interest. The difficulties of establishing such 
trust are of course magnified when the client is un­
sophisticated and his or her freedom and reputation 
are at stake. Where the attorney is a public defender 
or, to a lesser extent, when the lawyer is court-appointed 
private counsel, the problem of gaining the client’s 
trust is magnified due to the institutional position of 
government-funded counsel. As every public defender 
knows from experience and as every study of client 
relations has demonstrated, indigent defendants have 
a fundamental mistrust of such attorneys because they 
perceive them as having a prim ary allegiance to the 
state/prosecution. See Casper, Im p r o v in g  D e fe n d e r -  
C lie n t R e la tio n s , 34 NLADA Briefcase 114,126 (1977); 
O ’Brien, Peterson, W right & Hostica, T h e  C r im in a l

184



11

L a w y e r :  T h e  D e fe n d a n t ’s P e r s p e c t iv e ,  5 Am. J . Crim. 
L. 275, 292, 308 (1977); Booknote, 50 Denver L.J. 47, 
83 (1973) ; Hearings on S. 1461 Before the Subcomm. 
on Constitutional Bights of the Senate Judiciary Com 
on Constitutional Rights of the Senate Judiciary 
Comm. 91st Cong., 1st Sess., 305 (1969). The result of 
this perception and mistrust all too often is misguided 
self-help on the part of indigent clients and such dis­
regarding of counsel’s sound advice as to essentially 
lessen counsel’s ability to provide effective representa­
tion. This crisis of confidence has adverse effects on 
the court system as well as on the client, since distrust 
of the “ state defense lawyer” is also manifested in 
defendants’ meritless appeals and collateral petitions.

The only way to eliminate this critical obstacle to 
providing skillful, constitutional representation to the 
economically disadvantaged is to move them as close as 
possible to the institutional position of private counsel, 
in whom indigent defendants have the greatest faith. 
I t  should be apparent that affording public defenders 
and court-appointed attorneys the same absolute im­
munity as prosecutors and judges, and thus distinguish­
ing them even further from private counsel, would be 
a significant step in the wrong direction.

II. Affording Immunity To Any Attorney Appointed Under The
Criminal Justice Act, While Privately Retained Counsel Re­
main Subject To Suit For Malpractice, Would Violate Equal
Protection As An Invidious Distinction Based On Wealth.

A judicially created rule of law immunizing only 
counsel appointed under the Criminal Justice Act from 
suit for malpractice would clearly work a severe dis­
crimination against the indigent criminal defendant 
without any compelling or even rational reason. Dis­
tinguishing between the poor and the rich in this regard

185



12

would contravene the constitutional mandate that the 
economically disadvantaged defendants in our country 
be placed on an equal footing at trial and on appeal 
with the more wealthy. Moreover, it is patently irra­
tional, in light of the purpose of the Criminal Justice 
Act, to inflict the additional punishment of denying 
compensation where the C.J.A. representation falls 
short of minimum constitutional standards. Thus, to 
immunize such attorneys, where retained counsel re­
mains amenable to suit, violates the Equal Protection 
provisions of the F ifth  and Fourteenth Amendments 
to the Constitution.

This Court has repeatedly held unconstitutional pro­
cedures which deny indigents the same meaningful 
access to the courts to challenge their convictions as is 
enjoyed by their non-indigent peers. D r a p e r  v. W a s h -  
in g to n , 372 U.S. 487 (1963); L a n e  v. B r o w n ,  372 U.S. 
477 (1963) ; D o u g la s  v. C a lifo r n ia , 372 U.S. 353 (1963) ; 
S m i th  v. B e n n e t t ,  365 U.S. 708 (1961) ; B u r n s  v. O hio , 
360 U.S. 252 (1959); G riffin  v. I l l in o is ,  351 U.S. 12 
(1956); cf. R o s s  v. M o ffitt , 417 U.S. 600 (1974). Al­
though these decisions concern access in criminal pro­
ceedings, they are not materially distinguishable from 
the situation at Bar. This Court has already held that 
government may not discriminate against the indigent 
accused because the proceeding at issue, though related 
to the criminal trial, is purely civil in nature. J a m e s  v. 
S tr a n g e ,  407 U.S. 128 (1972). Besides, were immunity 
from malpractice suits granted the indigents’ counsel 
while the wealthy remain free to sue, only the impo­
verished defendants would suffer by irremediable ex­
clusion from the only available grievance-resolving 
mechanism, the courts. The discrimination here would 
thus be fa r more invidious than that which results 
from requiring notes of testimony or a filing fee.

186



13

Moreover, even if this case involved a civil plaintiff 
who was not also a criminal defendant seeking redress 
for a constitutionally defective conviction, the discrim­
ination based on wealth would be intolerable. Reason­
able access to the courts, where they are the only effec­
tive means of dispute resolution, is a fundamental part 
of our legal heritage. B o d d ie  v. C o n n e c tic u t, 401 U.S. 
371 (1971). Total deprivation of a cause of action 
which is available to the wealthy is not reasonable 
access. I t  also does not present the kind of minimal 
financial burden, and thus minimal wealth discrimina­
tion, which this Court has upheld. See O r tw e in  v. 
S c h w a b , 410 U.S. 656 (1973); U n ite d  S ta te s  v. K r a s ,  
409 U.S. 434 (1973).

Finally, evaluation of the conceivable justifications 
for specifically immunizing appointed counsel discloses 
no rational basis for this extreme step. As demonstrated 
in Argument I, s u p r a , affording immunity to public 
defenders and appointed attorneys2 would not improve 
the quality of legal representation for the poor. More­
over, even if it could be argued that such protection 
would in some cases have that salutary effect, it is not 
a rational means to the desired end. I f  the present sys­
tem for providing free counsel is inadequate, the solu­
tion is to provide direct stimulus such as better train­
ing, necessary support services, and greater remunera­
tion. I t  makes no sense to approach the problem in such 
indirect fashion, especially where the mechanism

2 Distinguishing between Federal Public Defenders, Community 
Defenders and other court-appointed counsel would certainly be 
irrational. The fact that a defendant is assigned to one rather than 
the other is fortuitous and there would be no justification for im­
munizing one type of attorney and not the others. Rinaldi v. 
Yeager, 384 U.S. 305 (1966).

187



14

adopted deprives those victimized by the deficiencies 
in the system of compensation for their injuries.

Neither can the discrimination proposed here be 
justified in terms of the need to prevent frivolous liti­
gation in the criminal courts or in terms of insuring 
cost-sharing by the beneficiaries of the Criminal Ju s­
tice Act. I t  is fa r too late in the jurisprudential day to 
argue that poor litigants should suffer discrimination 
in access to the courts because they are more frivolous 
litigious as a group than their wealthy peers. L in d s e y  
v. N o r m e n t ,  su p ra . Finally, any possible assertion that 
immunity is an acceptable means of defraying the 
costs of appointing counsel is meritless. This allocation 
of the burden would be totally irrational since only 
those who received nothing, i.e., ineffective assistance, 
would pay.

Under these circumstances it can hardly be said that 
immunizing public defenders and court-appointed pri­
vate lawyers would justify the cynicism and frustra­
tion with the criminal justice system which it would 
no doubt generate. See M a y e r  v. C ity  o f  C h ica g o , 404 
U.S. 189, 197-198 (1971). '

III. Absolute Immunity Should Not Be Afforded To Either Judges.
Prosecutors Or Defense Counsel, Whether Appointed Or
Retained.

The respondent’s argument that counsel provided to 
an indigent accused must be absolutely immune because 
of the close analogy between their function and that of 
prosecutors and judges actually proves that absolute 
immunity for such officials is not required by the public 
interest. I f  private and appointed counsel can equally 
be expected to exercise sound discretion despite poten­
tial tort liability, as they can, then certainly judges and

188



15

prosecutors performing similar discretionary functions 
would not be significantly impeded in their duties by 
the possibility of suit for intentional wrongs. Hence, 
this Court should reconsider its prior decisions and 
eliminate entirely this extreme doctrine as applied to 
the judiciary and the prosecution.

Where it has afforded total protection from suit this 
Court has uniformly accepted the view that without 
immunity the threat of civil suit would severely hamper 
the exercise of the decision-making process which is 
necessary to effective government. I m b le r  v. P a c h tm a n ,  
424 U.S. 409 (1976); P ie r s o n  v. R a y ,  386 U.S. 547 
(1967). This belief has in turn  played a major part in 
influencing the positions the Court has taken. The tra ­
ditional nature of reliance on the alleged danger from 
potential liability in these instances notwithstanding, 
the considerations and experience relevant to the issue 
at bar demonstrate that it has been misplaced. Clearly 
the possibility of suit has the effect of improving the 
representation of both retained and appointed counsel 
in criminal cases. A similar salutary benefit would 
result from making judges and prosecutors amenable 
to suit for intentional wrongs. Namely, it would pro­
vide a check on particular abuses of power which can­
not realistically be reached through the electoral or im­
peachment processes. At the same time, it is apparent 
from society’s acceptance of malpractice actions against 
attorneys that effective exercise of similar types of dis­
cretion by prosecutors and judges would not be sig­
nificantly deterred by a much more limited exposure to 
potential liability.

This Court’s expressed fear that litigation against 
these public officials would dangerously deflect their 
energies from public duties is also unwarranted in

189



16

modern circumstances. There can be no credible sug­
gestion that attorneys representing clients are pre­
vented from satisfying their responsibilities by suits 
against them. The same conclusion must follow for 
judges and prosecutors. Moreover, the practical re­
quirement of counsel to prosecute a claim against a 
public official eliminates the danger that officials would 
be burdened with frivolous suits. The availability 
of malpractice insurance and the legal representation 
which goes with it also means that the cost of such liti­
gation in terms of the official’s time and concern would 
be minimal.

Finally, there would be at least one other major bene­
fit from providing compensation for the victims of in­
tentional misconduct by government. By providing 
the electorate with a meaningful remedy for misuse of 
the public trust this Court would in the long run in­
crease faith in the public’s chosen or appointed leader­
ship and thus promote the legitimacy of our democracy. 
For this reason as well prosecutors and judges should 
no longer enjoy absolute immunity.

190



17

CONCLUSION

For the reasons set forth herein, the National Legal 
Aid and Defender Association respectfully joins the 
Petitioner in urging this Court to reverse the mandate 
of the Pennsylvania Supreme Court and to remand 
this matter with directions to overrule the demurrer 
and to reinstate the complaint.

Respectfully submitted,

B e n ja m in  L erner
Chief Defender
Defender Association of Philadelphia
D ouglas R iblet
Deputy Chief of Appeals
Defender Association of Philadelphia
H oward B . E isenberg
Director, Defender Division
National Legal Aid and Defender Assn.
2100 M Street, N.W.
Suite 601
Washington, D.C. 20037
(202) 452-0620

C o u n se l f o r  N a t io n a l  L e g a l  A id  a n d  
D e fe n d e r  A s s n .

191



I n  T he

&uprm? ( ta r t  nf tlji? Staten
October Term , 1978

No. 78-5981

F rancis R ick  F erri,
P etitio n er,

v.

Dan iel  A ckerm an ,
R espondent.

On W rit o f Certiorari to the Suprem e Court 
of Pennsylvania

B R IE F  OF COMMITTEE OF P E N N SY L V A N IA  
PU BLIC  D E F E N D E R S  AS AM ICUS CURIAE

D a n te  G. Ber ta n i
W estmoreland County Public D efender  
302 Courthouse Square 
Greensburg, PA  15601 
(412) 834-2191 E xt. 3342

B lake E . M a r t in , J r .
Franklin County Public Defender 
Courthouse
Chambersburg, PA  17201 
(717) 264-4125

Counsel fo r  Committee o f Pennsylvania  
Public D efenders as A m icus Curiae

193



TABLE OF CONTENTS

TABLE OF CITATIONS .......................................................... Ill

IN T E R E ST  OF COMMITTEE OF P E N N SY L V A N IA  
PUBLIC D E F E N D E R S A S  AM ICUS C U R IA E .......  1

A R G U M E N T ............. ......................................................................  3

I. ABSO LUTE IM M UNITY SHOULD BE  AC­
CORDED TH E G OVERNM ENT-SPONSORED  
CRIM INAL D E F E N S E  LAW YER ........................  3

A. Common Law Im m unity Accorded the
Government-Sponsored Criminal D efense  
L a w y e r ..........................................................................  3

B. The Justifications for  Absolute Im m unity
for  Judges and Prosecutors Apply W ith  
Equal Force to Immunize the Government- 
Sponsored Criminal D efense L aw yer..............  4

1. The judge, the prosecutor and the defense
law yer are equally essential to th e adm in­
istration  o f crim inal j u s t ic e .........................  4

2, W here the function perform ed is in the
judicial phase of the crim inal process, 
the im m unity granted the participant is  
a b so lu te ..................................................................  5

II. PUBLIC POLICY CO NSIDERATIO NS CALL  
FOR ABSO LUTE IM M UNITY FOR GOVERN­
M ENT-SPO NSO RED CRIM INAL D E F E N S E  
LAW YERS ..............   8

A. The Position o f the Government-Sponsored  
Criminal D efense L aw yer is Significantly  
D ifferent from  P rivately Retained Counsel.... 9

B. Suits A gainst Government-Sponsored Crimi­
nal D efense Lawyers Would Deflect the Law­
yer’s E nergies .................................................   10

C. Recruitm ent Would B e H indered .....................  11

D. The Chilling E f fe c t ................................................... 11

Page

195



II

TABLE OF CONTENTS—Continued
Page

E. The E xistence o f Other Rem edies Reduces
the Need for  Private D am age A ctio n s...........  13

C O N C L U SIO N ....................................................................... ......  14

A P P E N D IX  A  (L ist o f 60 Members of the Committee 
o f Pennsylvania Public Defenders jo in in g  B r ie f ) ......  la

196



Ill

TABLE OF CITATIONS
C ases: Page

Bradley V. Fisher, 13 Wall. (80 U .S .) 335 (1872).. 6 ,1 2
Brown V. Joseph, 463 F.2d 1046 (3d Cir. 1972),

cert, denied, 412 U .S. 950 (1973) .................... 3 ,1 1 ,1 2 ,1 3
Butz V. Economou, 438 U .S. 478 (1978 ).......... 3, 5, 6 ,1 2 , 13
Gregiore V. Biddle, 177 F.2d 579 (2nd C ir .), cert.

denied, 339 U .S. 949 (1 9 4 9 ) .......................................  12
Imbler v. Pachtman, 424 U .S. 409 (1 9 7 6 ) ........3 ,5 , 6, 7 ,8 ,

11 ,13
John V. Hurt, 489 F.2d 786 (7th  Cir. 1 9 7 3 ) ............  12
Jones V. Warlick, 364 F.2d 828 (4th  Cir. 1 9 6 6 )......  3
Miller V. Barilla, 549 F.2d 648 (9th  Cir. 1 9 7 7 )......  3
Minns V. Paul, 542 F.2d 899 (4th  Cir. 1976), cert.

denied, 429 U .S. 1102 (1977) .......................................  3
Pierson v. Ray, 386 U .S. 547 (1967).............................  6, 9
Robinson V. Bergstrom, 579 F.2d 401 (7th  Cir.

1978) ..................................      4
Sullens V. Carroll, 446 F.2d 1392 (5th Cir. 1971).. 3
U.S. General, Inc. V. Schroeder, 400 F. Supp. 713

(E .D . W ise. 1 9 7 5 )...........................................................  11
Waits V. McGowan, 516 F.2d 203 (3d Cir. 1975).... 3
Walker v. Kruse, 484 F.2d 802 (7th Cir. 1 9 7 3 )......  4, 9

M iscellaneous:

A B A  Standards, The Defense Function (Approved
D raft, 1971) ..................................   4

Criminal Justice Act, 18 U.S.C. § 3006A .....................  4
Public D efender Act, Pa. Stat. Ann. tit. 16,

§ 9960.1 et seq.......... ................. ................. ...................... 2
28 U.S.C. § 2255 ............................................................... . 14

197



$upran? (Emtrt at tire Im ipii States
October Term , 1978

I n  T h e

No. 78-5981

F rancis R ick  F erri,
P etitio n er,

v.

Dan iel  Ackerm an ,
R espondent.

On W rit o f Certiorari to  th e Suprem e Court 
o f Pennsylvania

B R IE F  OF COMMITTEE OF P E N N SY L V A N IA  
PU BLIC  D E F E N D E R S  AS AM ICUS CURIAE

IN T E R E ST  OF COMMITTEE OF P E N N SY L V A N IA  
PU BLIC  D E F E N D E R S AS AM ICUS CURIAE

The ad hoc Committee of Pennsylvania Public De­
fenders was formed for the purpose of filing this am icus  
curiae brief. The Committee is composed of 60 of the 
65 heads of county Public Defender offices throughout 
Pennsylvania, and their names and identifications are 
listed in Appendix A to this brief. Dante G. Bertani is 
the past president of Public Defender Association of

199



2

Pennsylvania, having served in that capacity for three 
years. Blake E. Martin, Jr., is now the President of 
the Public Defender Association of Pennsylvania.

The public defender system in Pennsylvania was cre­
ated by the Public Defender Act, Pa. Stat. Ann. tit. 16, 
§ 9960.1, et seq. (Purdon). Under the provisions of that 
statute, the commissioners of each county appoint a public 
defender, and assistant public defenders as may be re­
quired. The public defender is responsible to provide 
legal counsel in criminal matters “to any person who, 
for lack of sufficient funds, is unable to obtain legal 
counsel.” § 9960.6

The Committee of Pennsylvania Public Defenders has 
a vital interest in providing utmost freedom to its mem­
bers to furnish a vigorous defense for those accused of 
crimes, so that defendants who are indigent receive a 
qualify of representation equal to any. The Committee 
believes that absolute immunity for all government- 
sponsored defense counsel is necessary for the continued 
vitality of the judicial phase of the criminal justice sys­
tem. It is further necessary to attract and hold fine and 
sensitive lawyers in the low-paying positions as defenders 
and thus to discharge the public duty of providing the 
best possible defense to those not otherwise able to af­
ford it.

The members of the Committee of Pennsylvania Public 
Defenders are government-sponsored defense counsel who 
daily perform advocacy functions in our criminal justice 
system. The members are in the unique position of deal­
ing daily with those accused of crime and of knowing 
their attitudes and the attitudes of the other participants 
in the criminal courtroom. The Committee believes that 
this knowledge and understanding will provide some as­
sistance to the Court in making a determination of the 
important issues so critical to the vitality of the public 
defender system.

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3

Both parties have consented to permit the Committee 
of Pennsylvania Public Defenders to file this brief.

ARGUM ENT

I. ABSO LUTE IM M UNITY SHOULD BE ACCORDED  
TH E GOVERNM ENT-SPO NSO RED CRIM INAL D E ­
F E N S E  LAW YER

The criterion established by this Court for determin­
ing the applicability of the immunity doctrine, in each 
case, is to undertake “a considered inquiry into the im­
munity historically accorded the relevant official at com­
mon law and the interests behind it.” Im b le r  V. P acht- 
m an, 424 U.S. 409, 421 (1976) ; B u tz  V. Economow, 438 
U.S. 478, 508 (1978). In deciding whether a government- 
sponsored criminal defense lawyer is entitled to absolute 
immunity, inquiry must be made into relevant case law 
and consideration must be given to the public policy 
reasons supporting immunity.

A. Common Law Im m unity Accorded the Government- 
Sponsored Criminal D efense Lawyer

The requirement of government-sponsored defense coun­
sel for indigents accused of crime is of relatively recent 
origin. Nonetheless, the history of common law on the 
issue of absolute immunity for the government-sponsored 
criminal defense lawyer, though brief, has produced more 
than a few decisions. This considerable body of law is 
instructive, and leads to the important conclusion that 
absolute immunity has been accorded by every federal 
appellate court which has considered the issue. Jones V. 
W arlick, 364 F.2d 828 (4th Cir. 1966) ; Su llens  V. Car- 
roll, 446 F.2d 1392 (5th Cir. 1971) ; B ro w n  v. Joseph, 
463 F.2d 1046 (3d Cir. 1972), cert, denied, 412 U.S. 
950 (1973) ; W a its  v. M cG owan, 516 F.2d 203 (3d Cir. 
1975); M inns  V. P aul, 542 F.2d 899 (4th Cir. 1976), 
cert, denied, 429 U.S. 1102 (1977) ; M iller  V. B arilla , 549

201



4

F.2d 648 (9th Cir. 1977) ; R obinson  v. B erg stro m , 579
F.2d 401 (7th Cir. 1978) ; W a lke r  v. K ru se , 484 F.2d 
802 (7th Cir. 1973).

No federal appellate court has denied immunity for the 
government-sponsored defense lawyer.

The cases make it clear that, so far as immunity is 
concerned, there is no distinction made among govern­
ment-sponsored defense lawyers whether they be court- 
appointed, public defenders, or panel attorneys under the 
Criminal Justice Act, 18 U.S.C. § 3006A. Even the 
NLADA am icus curiae brief supports the position that 
no distinction should be made. NLADA Brief 3. The 
panel attorney under the Criminal Justice Act, 18 U.S.C. 
§ 3006A, should be treated the same as the public de­
fender; in fact, absolute immunity has been given to 
both.

B. The Ju stifications for  A bsolute Im m unity for  
Judges and Prosecutors A pply W ith Equal Force  
to Im m unize th e G overnm ent-Sponsored Criminal 
D efense Lawyer

I. The judge, the prosecutor and the defense lawyer 
are equally essential to the administration of 
criminal justice

The ABA Standards, T he D efense  F u n c tio n  (Approved 
Draft, 1971), § 1.1(a) makes it clear that “ [cjounsel for 
the accused is an essential component of the administra­
tion of criminal justice,” and that a properly constituted 
court is a “tripartite entity consisting of the judge . . . 
counsel for the prosecution, and counsel for the accused.”

In providing representation for the indigent accused 
of crime, the government-sponsored defense lawyer per­
forms a public function as critical and important as the 
function performed by the prosecutor and the judge. He 
must be free to provide a vigorous and fearless defense

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5

of the accused. Frequently, the courtroom climate is 
hostile to his efforts, especially when he represents an 
unpopular person or one accused of a heinous crime. 
When he provides the criminal defense at the behest of 
his government and in compliance with constitutional 
mandate, he performs an important public duty indis­
pensable to the effective operation of the criminal justice 
system.

In the criminal courtroom, the judge, the prosecutor 
and the government-sponsored counsel for the accused all 
strive to achieve substantial justice within our judicial 
system. The judge and the prosecutor both have absolute 
immunity from civil liability. The defense counsel should 
also have absolute immunity.

2. Where the function performed is in the judicied 
phase of the criminal process, the immunity 
granted the participant is absolute

The criminal process involves investigative activities 
and judicial activities. Persons involved in the former 
are entitled to qualified immunity (see Im b le r  V. P acht- 
m an , supra , 424 U.S. at 430), while those involved in the 
judicial phase are accorded absolute immunity. The 
Im b le r  case held a state prosecutor absolutely immune 
in his role as an advocate because his “activities were 
intimately associated with the judicial phase of the crimi­
nal process, and thus were functions to which the rea­
sons for absolute immunity apply with full force.” Id .

B u tz  V. Econom ou, supra , 438 U.S. 478, involved var­
ious federal participants in agency hearings. While some 
of the officials were granted only qualified immunity, all 
those involved in the judicial process were given absolute 
immunity. The federal hearing officer was absolutely 
immune because his role was “functionally comparable” 
to that of a judge, 438 U.S. at 513; the official who 
decided to initiate the administrative proceeding was

203



6

granted absolute immunity by analogy to prosecutorial 
immunity, 438 U.S. at 515-16; finally, and most signifi­
cantly, the agency lawyer who presented the evidence 
was held absolutely immune, 538 U.S. at 516-17. This 
Court reasoned that the nature of the officials’ responsi­
bilities determined the immunity, and since the respon­
sibilities were judicial in nature, immunity would be 
granted even in the administrative setting. The Court 
explained the necessity for absolute immunity:

The cluster of immunities protecting the various 
participants in judge-supervised trials stems from 
the characteristics of the judicial process rather than 
its location. As the Bradley Court suggested, 13 
Wall. (80 U.S.), at 348-349, 20 L.Ed. 646, contro­
versies sufficiently intense to erupt in litigation are 
not easily capped by a judicial decree. The loser in 
one forum will frequently seek another, charging the 
participants in the first with unconstitutional ani­
mus. See Pierson v. Ray, supra, at 554, 18 L. Ed.2d 
288, 87 S. Ct. 1213. A b so lu te  im m u n ity  is  th u s neces­
sa ry  to assure th a t judges, advocates, and  w itnesses  
can p er fo rm  th e ir  respective  fu n c tio n s  w ith o u t 
h arassm en t or in tim id a tio n . [Emphasis supplied] 
438 U.S. at 512

The prosecutor’s absolute immunity in Im b le r  was based 
not only on the function of initiating prosecutions, but 
upon the prosecutor’s conduct of the trial. 424 U.S. at 
424

Attaining the system’s goal of accurately determin­
ing guilt or innocence requires that both the prosecu­
tion  and  the  defense  have wide discretion in the con­
duct of the trial and the presentation of evidence. 
[Emphasis supplied] 424 U.S. at 426.

Petitioner argues that the function of the defense 
lawyer is uniquely dissimilar to that of the judge or 
prosecutor, and he should therefore be denied immunity. 
Pet. brief at 36-38. The judge, the prosecutor, and counsel

204



7

for the accused all work within the judicial phase of the 
criminal justice system. Of course, all three have dif­
fering functions. The mere fact that the prosecutor does 
not perform the same duties as a judge does not deprive 
him of absolute immunity; nor should absolute immunity 
be denied defense counsel because he does not act as a 
prosecutor or judge.

The specific function performed is not the test; rather, 
it is that the participant’s immunity in the judicial phase 
be supported by policy considerations. The prosecutor 
does not have immunity because he acts like a judge; he 
enjoys absolute immunity because the justification for it 
“is based upon the same considerations that underlie the 
common-law immunities of judges.” Im b le r  v. P ach tm an , 
supra , 424 U.S. at 422-423. For the prosecutor, absolute 
immunity is granted for policy reasons similar to those 
which underlie the judge’s absolute immunity; namely, 
that “harassment by unfounded litigation” would cause 
him to deflect his energies from his duties, and “the 
possibility that he would shade his decisions instead of 
exercising the independence of judgment required by his 
public trust.” Id . at 423.

The identical policy considerations employed in Im b le r  
to provide absolute immunity for prosecutors apply with 
equal force to the government-sponsored defense lawyer. 
Harassment by unfounded litigation would deflect him 
from his important public duties, and his independent 
judgment during the course of a criminal trial might be 
shaded by the threat of his own liability.

Judicial and prosecutorial immunity are necessary to 
the healthy functioning of the criminal justice system. 
Society is benefited by judicial and prosecutorial im­
munity. The essential judicial functions served by the 
judge and prosecutor are fundamentally the same as 
those of the government-sponsored defense lawyer. All 
are “intimately associated with the judicial phase of the

205



8

criminal process.” Im b le r  V. P ach tm an , supra , 424 U.S. 
at 430. All should be treated alike in the determination 
of their civil liability.

A m icu s  curiae  NLADA argues that the three partici­
pants in the criminal courtroom should be treated alike, 
but because it has concluded that the government-spon­
sored counsel for the accused should not have immunity, 
it is forced to advocate the position that the doctrine of 
absolute immunity for judges and prosecutors should be 
abrogated. NLADA brief at 14-16. The NLADA position 
is rationally indefensible. No judicial system could long 
exist if judges and prosecutors were liable to lawsuits 
for acts within the jurisdiction of their positions. Abro­
gation of absolute immunity for judges could cripple and 
ultimately destroy the effectiveness of the criminal jus­
tice system.

II. PU BLIC  POLICY C O NSIDERATIO NS CALL FOR 
ABSO LUTE IM M UNITY FOR GOVERNM ENT- 
SPO NSO RED CRIM INAL D E F E N S E  LAW YERS

The prosecutor is given absolute immunity “based upon 
the same considerations that underlie the common-law 
immunities of judges.” Im b le r  v. P ach tm an , supra , 424 
U.S. at 422-423. A considered examination of the policy 
considerations supporting prosecutorial and judicial im­
munity leads to the conclusion that government-sponsored 
defense lawyers should be absolutely immune for similar 
policy reasons.

Absolute immunity for the criminal defense lawyer 
benefits the broad interests of the indigent client. Coun­
sel for the accused is free to exercise his independent 
judgment without fear of the consequences of a civil suit 
from a dissatisfied client. Recruitment of lawyers to rep­
resent indigents is facilitated, thus providing for wider 
participation of the bar in the public duty of represent­
ing the poor.

206



9

Just as judicial immunity is “for the benefit of the 
public, whose interest it is that judges should be at liberty 
to exercise their functions with independence and without 
fear of consequences,” P ierson  v. R a y , 386 U.S. 547, 
554 (1967), so absolute immunity for the criminal de­
fense lawyer serves the broad interest of the client and 
the judicial system. “The reasoning which provides im­
munity for various public officials . . .  is also applicable 
to the performance by private citizens of public services 
which play such a significant role in the administration 
of justice.” W a lker  v. K ru se , supra , 484 F.2d at 802, 
804.

A. The P osition  of the Governm ent-Sponsored Crim inal 
D efense Lawyer is  S ign ificantly  D ifferent from  
P rivately  R etained Counsel

The circumstances surrounding the representation of 
indigent clients accused of crime create a climate in 
which unfavorable results are more likely to occur than 
with paid representation. In the highly charged atmo­
sphere of a criminal courtroom, where the state is exercis­
ing its power to deprive a citizen of liberty, emotions 
frequently erupt into unfounded charges of malice or lack 
of competence of the defense lawyer.

Where a client is able to pay for his private counsel, 
he is also able to select the lawyer he wants. He has a 
higher regard for his lawyer, who was probably chosen 
because of reputation or by referral from a trusted 
friend. The private lawyer is in a position to decide 
whether to represent the client, and is free to decline 
a client he considers troublesome. Even after represnta- 
tion begins, he is generally freer to withdraw if dif­
ficulties arise.

On the other hand, as perceptively observed by am icus  
curiae NLADA, “indigent defendants have a fundamental 
distrust” of government-sponsored counsel. NLADA brief 
at 10. The indigent does not have the right to choose his

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10

counsel, and the government-sponsored attorney generally 
cannot refuse representation. The indigent does not pay 
for legal services, and as in other aspects of life, anything 
easily obtained is lightly regarded. The government-spon­
sored lawyer must continue to represent troublesome or 
uncooperative clients, and is frequently called upon to take 
over the representation of such a client after private 
counsel has withdrawn. Giving a troublesome client who 
has a “fundamental distrust” of his lawyer the right to 
sue his lawyer will certainly not remedy his distrust, and 
will not accomplish anything to improve the lawyer-client 
relationship.

When an adverse decision is reached against the de­
fendant and he faces conviction or imprisonment, he often 
seeks retaliation against the society which has denied him 
his freedom. He neither risks anything nor loses any­
thing if he vents his anger in an action for damages 
against his own defense lawyer. After all, his counsel, if 
he is denied absolute immunity, will be the only partici­
pant in the judicial proceedings against whom action could 
be brought.

B. Su its A gain st Governm ent-Sponsored Criminal D e­
fen se  Law yers W ould Deflect the Lawyer’s E nergies

The caseload of the government-sponsored criminal 
defense lawyer is heavy. His duty to provide legal rep­
resentation to the poor imposes great demands on his 
time and energy.

Any civil action against a government-sponsored crim­
inal defense lawyer would deflect his energies from his 
main task of defending indigents accused of crime. If he 
is called upon to justify actions taken long ago, to pre­
pare pleadings in his defense, to submit to discovery and 
even to trial, obviously he will have less time to provide 
services to his indigent clients.

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11

“ [A] deflection of the prosecutor’s energies from his 
public duties” provides an important policy considera­
tion to support absolute immunity for the prosecutor. 
Im b le r  V. P ach tm an , supra , 424 U.S. at 423. The same 
policy consideration justifies absolute immunity for the 
judge. It should likewise support absolute immunity for 
the government-sponsored defense lawyer.

C. R ecruitm ent W ould Be H indered

“To deny immunity to the Public Defender and ex­
pose him to this potential liability would not only dis­
courage recruitment, but could conceivably encourage 
many experienced public defenders to reconsider present 
positions.” B ro w n  v. Joseph, supra , 463 F,2d at 1049. 
Government-sponsored defense lawyers are underpaid and 
overworked. The additional threat of civil liability at 
the suit of the client for whom he labors could be the 
very factor that would discourage the lawyer from per­
forming the vital function of representing the poor.

By analogy, who would want to be a judge if he could 
be sued by a dissatisfied litigant? Without absolute im­
munity, who would choose to be a prosecutor? Is it not 
reasonable that a criminal defense lawyer would hesi­
tate to represent an indigent if such representation 
might culminate in an action for civil damages?

D. The C hilling E ffect

“ [I] f an attorney must work in constant fear of 
civil liability, it is the rights of the public that will 
suffer. Any such threat of liability visits an obvious 
chilling effect upon the attorney’s enthusiasm to vig­
orously defend his client’s position.” U .S. G eneral, 
Inc. V. Schroeder, 400 F. Supp. 713, 717 (E.D. 
Wise. 1975).

The “chilling effect” created by the threat of civil 
liability manifests itself in several ways. The govern­

209



12

ment-sponsored defense lawyer, faced with the threat 
of potential liability, will lose his independence to control 
the technical aspects of defense strategy. Because he 
had so much at stake personally, he will tend to accede 
to the many demands of his client for the filing of mo­
tions or subpoenaing of witnesses whether or not such 
tactics would be best indicated by circumstances. See 
B row n  v. Joseph, supra , 463 F.2d at 1049; Jo h n  v. H u r t,  
489 F.2d 786, 788 (7th Cir. 1973).

Judge Learned Hand described the chilling effect as 
the “constant dread of retaliation” when he proffered 
it as a policy consideration to provide the prosecutor 
with absolute immunity. G regiore V. B iddle, 177 F.2d 
579, 581 (2nd Cir.), cert, denied, 339 U.S. 949 (1949). 
The threat of civil liability would “dampen the ardor 
of all but the most resolute, or the most irresponsible, 
in the unflinching discharge of their duties.” Id .

An indigent accused of crime is constitutionally en­
titled to an effective defense. The lawyer must be free 
to exercise independent judgment in the management of 
the defense without, even subconsciously, shading his de­
cisions with a view toward avoiding potential liability.

The “chilling effect” consideration supporting absolute 
immunity for a judge was expressed in B u tz  V. Econom ou, 
supra , 438 U.S. at 509:

If a civil action could be maintained against a judge 
by virtue of an allegation of malice, judges would 
lose “that independence without which no judiciary 
could either be respectable or useful.” [B radley  v. 
F isher, 13 Wall. (80 U.S.) 335, 347 (1872)].

A civil action against a defense lawyer would be cost­
ly to him in terms of time, money and damaged reputa­
tion. The natural tendency would be to do whatever is 
necessary to avoid such a threat. The lawyer would 
tend, for example, to document every strategy meeting

210



13

with the client in which trial tactics were discussed, 
lest the meeting be later denied by the client. The prac­
tical experience of Pennsylvania public defenders sug­
gests that the tendency would be to spend more time 
representing and trying to satisfy the most trouble­
some clients to the detriment of other indigents in need 
of defense services. The courts themselves might shade 
their decisions on post-conviction relief, even subcon­
sciously, if the civil liability of the defense law’yer were 
at stake, as recognized by this Court in granting absolute 
immunity to prosecutors. Im b le r  v. P ach tm an , supra, 
424 U.S. at 427, 428.

E. The E xistence o f Other Rem edies Reduces the Need  
fo r  Private D am age A ctions

Other effective remedies are available to the criminal 
defendant complaining of his lawyer’s representation. 
He may assert his claim “by direct appeal, by state 
post-conviction remedies, and by federal habeas corpus 
petitions.” B ro w n  v. Joseph, supra , 463 F.2d at 1049. 
In B u tz , this Court supported judicial immunity by con­
sidering “the correctibility of error on appeal,” 438 U.S. 
at 512, and stated that “the safeguards built into the 
judicial process tend to reduce the need for private dam­
age actions as a means of controlling unconstitutional 
conduct.” Id.

The availability of other effective remedies was re­
viewed as a policy consideration in the Im b le r  case to 
support absolute immunity for the prosecutor; this Court 
concluded:

These checks undermine the argument that the im­
position of civil liability is the only way to insure 
that prosecutors are mindful of the constitutional 
rights of persons accused of crime. 424 U.S. at 529.

At the time of Ferri’s criminal trial out of which this 
action arose, he was serving the last 8 years of a prison

211



14

term on a prior conviction. App. 8. In the indictment 
at issue, Ferri was sentenced for 20 years on bombing 
charges, Pet. brief at 7b, and he is not contesting that 20 
year sentence. He is contesting, however, the additional 
10 year sentence to commence after the expiration of the 
20 year sentence. Ferri contends that a 3 year statute 
of limitations barred the prosecution on the revenue 
charges for which the 10 year sentence was imposed.

If Ferri is correct that the 3 year statute of limita­
tions applies, then he has an adequate and complete 
remedy under the federal habeas corpus provisions of 
28 U.S.C. § 2255. The failure of a lawyer to assert a 
statutory bar to prosecution, under any test, would entitle 
Ferri to have the additional 10 year sentence vacated.

A curious aspect of this case is that Ferri knows that 
he is entitled to apply for habeas corpus relief under 
§ 2255 and has deliberately chosen not to do so. His 
brief explains that an unfavorable result might cause the 
dismissal of his civil action as collaterally estopped. Pet. 
brief at 42, n.23. He has elected not to apply for the relief 
which would be adequate and complete as it relates to the 
10 year sentence not scheduled to begin until 20 years 
from the date of sentencing. He has chosen, rather, to 
seek money damages against his lawyer.

CONCLUSION

The government-sponsored criminal defense lawyer 
serves an indispensable public function in our criminal 
justice system. The same compelling public policy con­
siderations which support absolute immunity for judges 
and prosecutors apply to justify absolute immunity for 
the government-sponsored defense lawyer. Together in 
the same criminal courtroom, they strive to achieve sub­
stantial justice for all.

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15

The judgment of the Supreme Court of Pennsylvania 
should be affirmed.

Respectfully submitted,

Dante G. Bertani
W estm oreland County Public D efender  
302 Courthouse Square 
Greensburg, PA  15601 
(412) 834-2191 E xt. 3342

Blake E. Martin, J r.
Franklin County Public Defender 
Courthouse
Chambersburg, PA  17201 
(717) 264-4125

Counsel fo r  Committee o f Pennsylvania  
Public D efenders as Am icus Curiae

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la
A P P E N D IX  A

MEMBERS OF THE
COMMITTEE OF PENNSYLVANIA PUBLIC DEFENDERS

Adams County 
Clayton R. Wilcox, Esq. 
Public Defender 
Courthouse 
Gettysburg, PA 17325

Armstrong County
Kenneth G. Valasek, Esq. 
Public Defender 
Courthouse
Kittanning, PA 16201 

Beaver County 
Wayne S. Lipecky, Esq. 
Public Defender 
Courthouse 
Beaver, PA 15009

Bedford County
Richard W. Lins, Jr., Esq. 
Public Defender 
Courthouse 
Bedford, PA 15522

Berks County
William F. Ochs, Esq. 
Public Defender 
Courthouse 
Reading, PA 19601

Blair County
John Woodcock, Jr., Esq. 
Public Defender 
Courthouse
Hollidaysburg, PA 16648 

Bradford County
Leonard J. Frawley, Esq. 
Public Defender 
Courthouse 
Towanda, PA 18848

Bucks County 
John M. McClure, Esq. 
Public Defender 
Courthouse
Doylestown, PA 18901

Butler County
Michael M. Mamula, Esq. 
Public Defender 
Courthouse 
Butler, PA 16001

Cambria County 
Lawrence L. Davis, Esq. 
Public Defender 
Courthouse 
Ebensburg, PA 15931

Cameron County 
Russel] F. D’Aiello, Jr., Esq. 

Public Defender 
Courthouse 
Emporium, PA 15834

Carbon County 
Thomas S. McCready, Esq. 
Public Defender 
Courthouse 
Jim Thorpe, PA 18229

Centre County
Gary A. Delafield, Esq. 
Public Defender 
Courthouse 
Bellefonte, PA 16823

Clarion County 
William Kern, Esq.
Public Defender 
Courthouse 
Clarion, PA 16214

Clearfield County
Richard H. Milgrub, Esq. 
Public Defender 
Courthouse 
Clearfield, PA 16830

Clinton County
Peter P. Griffin, Esq. 
Public Defender 
Courthouse
Lock Haven, PA 17745

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2a
Columbia County

Cleveland C. Hummel, Esq. 
Public Defender 
Courthouse
Bloomsburg, PA 17815 

Crawford County
Louis D. Musica, Esq. 
Public Defender 
Courthouse 
Meadville, PA 16335

Cumberland County
Taylor P. Andrews, Esq. 
Public Defender 
Courthouse 
Carlisle, PA 17013

Dauphin County
Robert N. Tarman, Esq. 
Public Defender 
Courthouse
Harrisburg, PA 17101 

Delaware County
Richard L. Steinberg, Esq. 
Public Defender 
Courthouse 
Media, PA 19063

Elk County
David Whitney, Esq. 
Public Defender 
Courthouse 
Ridgway, PA 15853

Fayette County
Thomas P. Ruane, Esq. 
Public Defender 
Courthouse
Uniontown, PA 15401 

Forest and Warren Counties 
Joseph A. Massa, Jr., Esq. 
Public Defender 
Courthouse 
Tionesta, PA 16353

Franklin County
Blake E. Martin, Jr., Esq. 
Public Defender 
Courthouse
Chambersburg, PA 17201

Fulton County 
James M. Schall, Esq.
Public Defender 
Courthouse
McConnellsburg, PA 17233 

Greene County
John A. Stets, Esq.
Public Defender 
Courthouse
Waynesburg, PA 15370 

Huntingdon County 
Joseph W. Mullin, Esq. 
Public Defender 
Courthouse
Huntingdon, PA 16652 

Indiana County 
Donald R. Marsh, Esq.
Public Defender 
Courthouse 
Indiana, PA 15701

Jefferson County
Clifford Schenkemeyer, Esq. 
Public Defender 
Courthouse 
Brookville, PA 15825

Juniata County
Steven V. Manbeck, Esq. 
Public Defender 
Courthouse
Mifflintown, PA 17059 

Lackawanna County
John J. Dunn, Sr., Esq. 
Public Defender 
Courthouse 
Scranton, PA 18503

. Lancaster County
Theodore S. Danforth, Esq. 
Public Defender 
Courthouse 
Lancaster, PA 17602

Lawrence County 
Norman A. Levine, Esq. 
Public Defender 
Courthouse 
New Castle, PA 16101

216



3a
Lebanon County

Joseph C. Mesics, Esq. 
Public Defender 
Courthouse 
Lebanon, PA 17042

Lehigh County
Thomas Wallitsch, Esq. 
Public Defender 
Courthouse 
Allentown, PA 18101

Luzerne County
Michael J. Cefalo, Esq. 
Public Defender 
Courthouse
Wilkes-Barre, PA 18711 

Lycoming County
Gregory V. Smith, Esq. 
Public Defender 
Courthouse
Williamsport, PA 17701 

McKean County 
John Yoder, Esq.
Public Defender 
Courthouse 
Smethport, PA 16749

Mercer County
Michael J. Wherry, Esq. 
Public Defender 
Courthouse 
Mercer, PA 16137

Monroe County
Ronald E. Yican, Esq. 
Public Defender 
Courthouse
Stroudsburg, PA 18360 

Montgomery County
Samuel W. Salus II, Esq. 
Public Defender 
Courthouse 
Norristown, PA 19404

Montour County
Robert L. Marks, Esq. 
Public Defender 
Courthouse 
Danville, PA 17821

Northampton County
Chester A. Reybitz, Esq. 
Public Defender 
Courthouse 
Easton, PA 18042

Northumberland County 
Harry V. Klein, Jr., Esq. 
Public Defender 
Courthouse 
Sunbury, PA 17801

Perry County
Shaubut C. Walz III, Esq. 
Public Defender 
Courthouse
New Bloomfield, PA 17068 

Pike County
Randy Borden, Esq.
Public Defender 
Courthouse 
Milford, PA 18337

Potter County
Richard S. Lindhome, Esq. 
Public Defender 
Courthouse
Coudersport, PA 16915 

Schuylkill County 
Frank R. Cori, Esq.
Public Defender 
Courthouse 
Pottsville, PA 17901

Snyder County
Harry L. Wilcox, Esq.
Public Defender 
Courthouse 
Middleburg, PA 17861

Somerset County
Wilbert H. Beachy III, Esq. 
Public Defender 
Courthouse 
Somerset, PA 15501

Sullivan and Wyoming Counties 
David P. Posatko, Esq. 
Public Defender 
Courthouse 
Laporte, PA 18626

217



4 a

Susquehanna County 
Charles Aliano, Esq.
Public Defender 
Courthouse 
Montrose, PA 18801

Tioga County
Earl W. Cabor, Esq.
Public Defender 
Courthouse 
Wellsboro, PA 16901

Union County
Paul W. Brann, Esq.
Public Defender 
Courthouse 
Lewisburg, PA 17837

Venango County
Terrance L. Whitling, Esq. 
Public Defender 
Courthouse 
Franklin, PA 16323

Washington County 
John P. Liekar, Esq. 
Public Defender 
Courthouse
Washington, PA 15301 

Wayne County
Robert N. Bryan, Esq. 
Public Defender 
Courthouse 
Honesdale, PA 18431

Westmoreland County 
Dante G. Bertani, Esq. 
Public Defender 
Courthouse
Greensburg, PA 15601 

York County
H. Stanley Rebert, Esq. 
Public Defender 
Courthouse 
York, PA 17401

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