The opinion
*100 ROBERTS, Justice,
dissenting.
The majority holds that private counsel appointed to represent an indigent defendant in a federal criminal case enjoys the same immunity as a federal official carrying out his official duties. The only cases cited in support of this conclusion, however, fail to provide any analysis justifying this extension of federal immunity.
In describing the rationale underlying the doctrine of official immunity, the United States Supreme Court in Butz v. Economou, 438 U.S. 478 , 98 S.Ct. 2894 , 57 L.Ed.2d 895 (1978), emphasized:
“[T]he injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligation of his position, to exercise discretion; [and] the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.”
Id. at 497 , 98 S.Ct. at 2906 (quoting Scheuer v. Rhodes, 416 U.S. 232, 240 , 94 S.Ct. 1683, 1688 , 40 L.Ed.2d 90, 96 (1974). Neither rationale applies to private appointed counsel. An appointed counsel does not need any more discretion, freedom, or encouragement to exercise his professional judgment and skill than does privately retained counsel.
Further, under federal law, defense attorneys who participate in trials in state courts are not thereby acting under color of state law for purposes of 42 U.S.C. § 1983 . See, e. g., Thomas v. Howard, 455 F.2d 228, 229 (3d Cir. 1972) (appointed counsel was “performing his duties solely for appellant, to whom he owed the absolute duty of loyalty, as if he were a privately retained attorney”). I would interpret federal immunity law in this light and would hold that attorneys appointed to represent defendants in federal court do not, merely by that representation or appointment, acquire status as a federal official entitled to immunity.
Finally, the majority’s result raises a serious equal protection issue. Those who cannot afford private counsel are denied a remedy for inadequate representation which is apparently available to those who can afford privately re *101 tained counsel. Furthermore, the denial of such a remedy must be viewed as establishing a lower standard of care for appointed counsel.
I would, therefore, reverse the order of the Superior Court.
LARSEN, J., joins in this dissenting opinion.