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The California Supreme Court did not seem eager Wednesday to give the state’s deputy public defenders broad immunity from legal malpractice suits. In Barner v. Leeds, S070377, the justices must decide if a government code section that grants state employees immunity for “discretionary acts” covers public defenders accused of botching an indigent client’s defense. Several justices expressed concern that allowing across-the-board discretionary immunity to PDs could ultimately create a two-tiered system of justice where relief for alleged negligence hinges on the state of a person’s pocketbook. “How do you explain to a factually innocent indigent defendant that the immunity does apply if he was represented by a public defender, but would not have applied if he had been represented by private counsel?” asked Justice Marvin Baxter. The court’s opinion in the case could resolve a debate that’s been brewing since the 2nd District Court of Appeal ruled in April 1998 that a deputy public defender performing his or her duties does not enjoy “discretionary immunity” under Government Code section 820.2. The state’s more than 3,000 PDs — who had presumed they shared immunity with prosecutors and other government attorneys — twice pushed for legislation specifically extending protections to them. Both measures were vetoed, first by Gov. Pete Wilson and then by Gov. Gray Davis. Wednesday’s case began when Glenn Barner, who was convicted of bank robbery and later found factually innocent, sued Julie Leeds, the Los Angeles deputy public defender who argued his case at trial. Barner pointed to an FBI report containing a statement from an informant identifying someone other than Barner as the bank robber, and he argued that Leeds negligently failed to investigate potentially exculpatory information or to file a motion to compel the disclosure of the FBI informant. Leeds filed for summary judgment, and the trial court ruled that Barner’s action was barred by the discretionary immunity provisions. On appeal, she noted that she was assigned to the case nine weeks before trial after another deputy public defender transferred off the case. She maintains that a copy of the FBI report containing the statement was not included in her file, and she argued that no trial court would have issued an informant disclosure order anyway. The 2nd District reversed, disagreeing with Leeds’ argument because the court believed “that a reasonable trial judge would have granted the discovery request.” Much of Wednesday’s argument centered on whether the day-to-day activities of deputy public defenders are discretionary — as Leeds attorney, Timothy Coates, argued — or simply ministerial, and hence not protected. Coates, a partner with Beverly Hills’ Greines, Martin, Stein & Richland, said “it’s the difference between planning and execution.” For instance, he said, the decision to file a motion or not to file it is discretionary, whereas the act of filing a motion late or failing to cite the proper authority would be examples of ministerial failures. But Barner’s attorney, Drew Cicconi, of Santa Monica’s Cicconi, Iglesias & Cicconi, countered that a deputy public defender is engaged purely in an operational zone, suggesting to the justices that all discretionary, policy-based decisions were reserved to supervisors at higher administrative levels. Justice Joyce Kennard asked Cicconi if he would agree that — after the initial policy decision is made to represent a class of clients or defendant — “everything that follows is operational and yes, choices are made, but they are nothing more than judgment calls that do not rise to the policy-making level?” “Yes,” Cicconi said. But policy decision or not, the justices also expressed a deep concern about creating two separate standards by which criminal defense attorneys can be held accountable by their clients. Justices Baxter and Ming Chin both wanted Coates to address the potential inequity created if public defenders were protected from liability while private attorneys appointed by the court to represent indigent defendants were not. Coates conceded that the government code — as written by the Legislature — would not protect private attorneys — but rather only public defenders and other public employees. “If the public defender does the same thing, why shouldn’t they be held liable?” Chin asked Coates, later asking if the attorney-client relationship between a private attorney and her client isn’t the same as that between a public defender and her client. But Justice Kathryn Mickle Werdegar seemed sympathetic to the unique duties assumed by public defenders, who, unlike their private practice counterparts, don’t get to pick their clients. She also worried that siding with Barner could lead to a wave of frivolous suits against public defenders. But Kennard, as well as Cicconi, noted that in 1998′s Wiley v. County of San Diego, 19 Cal.4th 532, the court had already raised the bar by requiring a plaintiff to prove actual innocence before he can recover tort damages against a public defender. Meanwhile, Coates cautioned that permitting suits against public defenders could have a chilling effect. He suggested that some PDs might think twice before cooperating with appellate counsel for fear of getting sued. In fact, Coates has noted, it was Leeds who ultimately provided Barner’s appellate counsel with the FBI supplemental report that shed new doubt on Barner’s guilt when, one month after his conviction, Leeds learned that the report had been missing from her file.

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