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No Shield for California's Public Defenders 
State Justices say work isn't a 'discretionary act' 
Sonia Giordani
The Recorder 

December 19, 2000 


The California Supreme Court ruled Monday that the state's public defenders don't enjoy broad immunity from legal malpractice suits and can be sued for negligence just like their private counterparts. 

At issue was whether public defenders are protected under a government code section that shelters all state employees from suit for "discretionary acts." The state high court concluded Monday that a public defender's work doesn't fall within the scope of that protection. 

"Consequently, deputy public defenders, like all criminal defense attorneys, always may anticipate that a court may examine their representation for substandard performance," wrote Chief Justice Ronald George for the unanimous court. 

Drew Cicconi, who represents malpractice plaintiff Glenn Barner, said Monday's decision sends a clear message that defendants -- whether indigent or rich -- are entitled to competent representation. But the partner with Santa Monica, Calif.'s Cicconi, Iglesias & Cicconi added that it's not merely a question of individual deputies doing their job -- but rather of counties giving them adequate resources. 

"This hopefully will force counties -- and in particular, Los Angeles -- to adequately fund their public defender's offices, to give them adequate staff, and to not overload them," said Cicconi. 

But Timothy Coates, who represents deputy public defender JulieLeeds and L.A. County, said the court was "dead wrong" in its conclusion that a PD's only discretionary act is whether or not to undertake representation in the first place. 

Coates, a partner at Beverly Hills' Greines, Martin, Stein & Richland, said PDs remain the last line of defense for many criminal defendants and often incur greater risk with the cases they represent. 

"If a private attorney sees a bad apple coming, they don't have to take that case," he said. 

Barner v. Leeds, 00 C.D.O.S.9988, originated in Los Angeles in 1992, when Glenn Barner stood trial for a bank robbery. Barner's case was assigned to Deputy Public Defender Debra Cole; mere weeks before the trial, however, it was transferred to another deputy PD, Julie Leeds. 

The case file given to Leeds included an FBI memo referring to an informant. Leeds assumed that her predecessor, Cole, had considered filing a motion for disclosure of the FBI informant's identity and didn't file it herself. She later explained thinking that the FBI informant was the same person as the informant who had told local police that Barner was the suspect. 

A jury convicted Barner, and he was sentenced to 16 years in prison. But Leeds later learned that the informant referred to in the FBI memo actually had identified the bank robber as a man other than Barner. She relayed the information to Barner's appellate counsel, who ultimately won Barner a finding of factual innocence. 

Barner then sued Leeds and her office for failing to follow up on the memo about the informant. 

The trial judge said Leeds was immune from liability under Gov. Code §820.2, which protects all state employees from suits stemming from discretionary acts. 

The Second District Court of Appeal reversed. 

Though the supreme court on Monday agreed with the Second District's conclusion, the justices took issue with its reasoning that there was no immunity under the code for public defenders unless the Legislature specifically provides for it. 

Instead, the state high court's opinion hinges on its distinction between an employee's actions that are policy judgments and those that are operational. The justices looked to a 1976 decision, Tarasoff v. Regents of University of California, 17 Cal.3d 425, in which the court held psychologists employed by the government are not immune from liability under the code section for the failure to warn a third person of a risk of harm posed by a patient. 

The court ruled that, like government psychologists, lawyers must exercise considerable judgment in making decisions about the type and extent of services necessary. Yet the services of deputy public defenders generally don't involve discretionary acts but rather "consist of operational duties that merely implement the initial decision to provide representation and are incident to the normal functions of the office of the public defender." 

Still, George noted that two years ago, in Wiley v. County of San Diego, 19 Cal.4th 532, his court had raised the bar for malpractice suits by requiring a showing of actual innocence. 

George noted that the policy question is "best addressed by the Legislature," though he noted two recent efforts to immunize public defenders have failed there. 

In the meantime, Coates said public defenders will carry on despite Monday's decision. 

"It's difficult to say whether this would deter them," Coates said. "They already work under often horrible circumstances." 




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