On January 6 the New Jersey Supreme Court heard oral arguments in this matter, which considers whether an attorney acting on behalf of the government to represent a private client in a litigated matter, where representation is provided as a constitutional right, is entitled to protections under the Tort Claims Act (TCA) when sued for legal malpractice. George Conk, arguing on behalf of the New Jersey State Bar Association, urged the Court to affirm
the Appellate Division’s decision to apply the TCA to legal malpractice claims:
Our fundamental objectives are to serve the public by protecting the integrity, competence, and vitality of the Bar; help to assure citizens access to justice and adequate remedies, and to assist the Courts in their mission to guarantee that justice is done. This court granted certification to answer two questions: Are legal malpractice claims exempt from the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and
 Is plaintiff’s “loss of liberty” damages claim subject to the verbal threshold of the TCA?*
The answer to the first question must be NO. Lawyers such as full and part time Public Defenders serve the State by whom they are employed. They help to vindicate the Constitutional obligations of due process, equal protection, and fair trials. But such public servants – full or part time – may falter and thereby give rise to professional liability claims.
Competent 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. The Tort Claims Act blocks frivolous claims via its verbal threshold (59:9-2), limits certain damages [e.g. grants credits for collateral sources, pre-judgment interest. The Act bars civil punitive damage awards against the State and any other public entity. But compensatory damages are not capped. Costs of defense are beyond the capacity of staff PDs and of the typically young, free-lance pool attorneys.
Antonio Chaparro Nieves was represented by a public defender when he was convicted of several crimes for which he served 12 years and four months. He was ultimately released, the charges were dismissed on his petition for post-conviction relief, and he has recovered under the Mistaken Imprisonment Act. The trial court ruled that the procedural requirements of the Tort Claims Act do not apply to legal malpractice claims. The Appellate Division reversed, holding that the Office of the Public Defender is a public entity and that public defenders are public employees who fall within TCA’s immunities and defenses.
“[T]he qualified immunity and indemnification afforded to lawyers under the Tort Claims Act is an important guarantee of the availability and independence of counsel who provide constitutionally mandated representation to those who cannot afford counsel, whether a lawyer is acting as a direct employee of the state, as a pool attorney hired through a state agency, or on a pro bono basis assigned by the Court,” said the NJSBA in its brief. While the NJSBA encouraged the Supreme Court to expand that immunity not just to public defenders, but also to pro bono attorneys assigned from the Madden list, the Supreme Court declined to hear the NJSBA’s arguments relative to Madden list representation.
* The Bar Association did not address the second question.