Ferri v. Ackerman Petition and Briefs
Public Court Documents
June 8, 1979

Cite this item
-
Brief Collection, LDF Court Filings. Ferri v. Ackerman Petition and Briefs, 1979. 8b432a9c-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cc2a44f0-e7d5-4e84-bd9f-321a862da2cc/ferri-v-ackerman-petition-and-briefs. Accessed July 20, 2025.
Copied!
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). 28 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 30 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). 31 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. 32 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. 33 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 34 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”. 35 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. 36 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 37 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 38 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. 39 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. 40 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 41 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). 42 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 43 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 44 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 45 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. 46 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. 47 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. 48 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 49 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]. 50 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. 51 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 52 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 53 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. 54 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 55 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. 56 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. 57 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.----- . ” 72 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). 101 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). 102 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. 103 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. 104 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” ). 108 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. 112 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. 113 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. 124 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. 200 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 202 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 207 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. 208 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. 212 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 213 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 215 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 218 LawReprints pubiicotions 37 WEST 20 STREET * NEW YO RK, N. Y . 10011