explaining that pre-DuBree “a mere public employee having no policy-making functions was not entitled to [a]ny immunity, whether it was absolute or conditional.”
How later courts described this case
- explaining that pre-DuBree “a mere public employee having no policy-making functions was not entitled to [a]ny immunity, whether it was absolute or conditional.”
- perceiving “no principled basis for differentiating between public defenders and privately retained and paid counsel” to conclude that public defenders were not entitled to the same immunities from suit as other publicly-funded employees
- declining to afford public defenders public official immunity; the public has an interest in ensuring the availability of court- appointed counsel to represent indigent criminal defendants, but once the appointment is made, a public defender’s public function ceases and he functions as a private attorney serving his client
- public defenders enjoy immunity for discretionary decisions taken in pursuance of their duties as public defenders
Written by the judges who cited it.
The opinion
ROBERTS, Justice,
concurring.
The public interest is not served by insulating public defenders from claims of negligence. Thus, our established caselaw precludes a grant of immunity to these defendants. See DuBree v. Commonwealth, 481 Pa. 540 , 393 A.2d 293 (1978).
My recently expressed view as to the inappropriateness of immunity for appointed counsel is equally applicable here. Like appointed counsel, the public defender “does not need any more discretion, freedom, or encouragement to exercise his professional judgment and skill than does privately retained counsel.” Ferri v. Ackerman, 483 Pa. 90, 100 , 394 A.2d 553, 558 (1978) (Roberts, J., joined by Larsen, J., *490 dissenting), cert. granted, 440 U.S. 907 , 99 S.Ct. 1213 , 59 L.Ed.2d 454 (1979).
Litigants represented by the public defender are entitled to the same quality of legal assistance required of privately retained counsel. Immunity would only permit less zealous representation and deny to those who cannot afford private counsel an equal remedy for their injuries. See Ferri , (dissenting opinion), supra.
Accordingly, I agree that the complaint against these defendants was improperly dismissed.
LARSEN, J., joins in this concurring opinion.