Thursday, January 9, 2020

Should a public defender be protected by a state torts immunity act?

Just a few days ago, the New Jersey Supreme Court heard oral arguments in a case that should be called Chaparro Nieves v. Office of the Public Defender (but is being mistakenly identified as Nieves v. Office of the Public Defender)** in which the Court has been asked to decide whether the Office of the Public Defender should be covered by the state's Torts Claims Act.

In this case, the plaintiff had been incarcerated for twelve years on serious charges, including first-degree aggravated sexual assault, when the charges against him were dismissed on his petition for post-conviction relief.  At some point thereafter, he filed a legal malpractice complaint against the public defender's office and an individual lawyer.  The trial judge denied defendants' motion for summary judgment as to the legal malpractice claim but the Appellate Division reversed, holding, among other things, that it is clear that the office of the public defender is a public entity and public defenders are public employees that come within the Tort Claims Act’s immunities and defenses.  You can read that opinion here.

The case is now before the Supreme Court where Professor George W. Conk, of the Louis Stein Center for Law & Ethics at Fordham University School of Law, argued on behalf of the New Jersey State Bar Association urging the Court to affirm the Appellate Division’s decision to apply the TCA to legal malpractice claims.  The Bar Association's statement concludes that "[c]ompetent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs. Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill served."

You can read the full statement of the Bar Association here.

** I say the case "should be called" that because I have seen it referred to everywhere as just Nieves v.  Office of the Public Defender, which shows ignorance about the use of two last names in the Latin American tradition.  The plaintiff's name is Antonio Chaparro, not Antonio Nieves.  But that is just a pet peeve of mine and I will leave it at that.

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