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Missouri Public Defenders Not Immune from Client Suits

In a case of first impression, the Missouri Court of Appeals held that state public defenders are not entitled to official immunity for acts committed during their representation of indigent criminal defendants.

Missouri public defender Arthur Allen represented Bernardo Costa, an indigent defendant, “in connection with a motion for post-conviction relief.” Costa instructed Allen to secure various witnesses to testify at a post-conviction evidentiary hearing. Allen assured Costa that he would call the witnesses, but ultimately failed to do so. The failure was fatal to Costa’s post-conviction claim.

Costa then filed an action for damages against Allen, asserting a claim “for breach of fiduciary duties (constructive fraud).” Allen moved to dismiss, arguing that he was entitled to official immunity and that Costa failed to state a cognizable damages claim because his action was premature. The trial court granted Allen’s motion and dismissed the action with prejudice.

Observing that whether public defenders enjoy official immunity was a question of first impression, the Missouri Court of Appeals examined the decisions of several other states.
The appellate court noted that “while most other jurisdictions find that public defenders are not protected by official immunity, the Supreme Court of Minnesota has extended such immunity to its public defender system. See: Dziubak v. Mott, 503 N.W.2d 771 (Minn. 1993). The Minnesota high court draws a distinction between public defenders and other attorneys based on the fact that indigent defendants do not pay for their own defense.”

However, the Missouri Court of Appeals noted the “vigorous dissent” in Dziubak, which rejected the majority’s reasoning and joined Connecticut, Florida, Illinois, Nevada and Pennsylvania in refusing to extend official immunity to public defenders.

Quoting State ex rel. Eli Lilly & Co. v. Gaertner, 619 S.W.2d 761, 764 (Mo. App. E.D.
1981), the court explained that “to be shielded by the doctrine of official immunity, a defendant must ... be ‘invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.’” The court found that “a public defender, once appointed, does not exercise any portion of the sovereign’s power, but instead provides professional services to a client.... As such, attorneys in the office of the public defender are not shielded from liability by the doctrine of official immunity, and the trial court’s dismissal with prejudice must be reversed.”

The court also rejected Allen’s contentions that Costa had failed to state a claim for breach of fiduciary duty, and that Costa’s legal malpractice claim was not ripe. Allen cited Johnson v. Schmidt, 719 S.W.2d 825 (Mo. App. W.D. 1986) for the proposition that a damage action is “premature ‘until such time as appellant is successful in securing post-conviction relief upon a finding that he was denied effective assistance of counsel.’”

The court found Johnson distinguishable because it involved trial counsel while Allen was post-conviction counsel. “Because Allen did not serve as Costa’s trial counsel, no further post-conviction proceeding is pending or can be brought that would address the effectiveness of Allen’s representation of Costa.” Rather, Costa need only establish “that Allen’s breach prevented him from obtaining the relief sought in the post-conviction motion,” the appellate court held. See: Costa v. Allen, 2008 Mo. App. LEXIS 8 (Mo. Ct. App. Jan. 2, 2008).

“Although the issue decided by the court was one of first impression, we weren’t really surprised by the ruling in that it puts our attorneys in the same position as doctors who work for the state, “ said Greg Mermelstein, appellate division director of the Missouri Public Defender’s Office.

The Missouri Supreme Court subsequently granted transfer, and ruled on Jan. 13, 2009 on the issue of whether the trial court had failed to properly allow Costa to amend his complaint. “On sustaining a motion to dismiss a claim … the court shall freely grant leave to amend and shall specify the time within which the amendment shall be made or amended pleading filed,” the Supreme Court stated, citing Rule 67.06.

In this case, the trial court dismissed Costa’s suit with prejudice just two days after the motion to dismiss was filed. “Ordinarily when a first pleading is ruled to be insufficient in a trial court, the party is afforded a reasonable time to file an amended pleading if desired,” the Court observed. “This is especially true in a case less than seven weeks old, and where Costa, a pro se plaintiff in prison, had no meaningful opportunity to respond to a dismissal motion filed and granted within a two-day span.”

Although the Court expressed doubt as to whether Costa had raised viable claims, the trial court’s judgment was vacated and the case remanded for further proceedings due to the improper dismissal. See: Costa v. Allen, 274 S.W.3d 461 (Mo. 2009).

Additional source: Associated Press

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Costa v. Allen