Suits Upheld Against Public Defenders

A Los Angeles public defender whose alleged failure to investigate a crucial lead may have caused an innocent man’s conviction can be held responsible for legal malpractice, the California Supreme Court decided Monday.

The unanimous decision found that unlike prosecutors, who have wide immunity from lawsuits, deputy public defenders can be sued for negligence by innocent clients who are convicted because of allegedly shoddy legal work. Counties would be required to bear the cost of the defense and of any malpractice awards.

“Deputy public defenders and private attorneys owe the same duty of care to their clients,” Chief Justice Ronald M. George wrote for the court. “Denying criminal defendants a remedy for malpractice simply because they are indigent and represented by a deputy public defender could be perceived as unfair.”

Public defenders are frequently sued by prisoners who do their own legal research and represent themselves. But until Monday, it was unclear whether deputy public defenders, as public employees, had immunity from such lawsuits.

In the case before the court, Glenn Russell Barner, now 37, was arrested for robbing a bank in El Segundo in 1992. An FBI memorandum indicated that an informant had identified another man as the robber.

Barner said his attorney, Los Angeles Deputy Public Defender Julie Leeds, failed to investigate this lead or file a motion to determine the identify of the FBI’s source.

Even though Barner steadfastly maintained his innocence, he was convicted and sentenced to prison for 16 years. A court later determined that he was innocent after the man identified in the FBI memo confessed.

Drew Allan Cicconi, who represents Barner, said the false conviction broke up his family and “really ruined his life.” A former Caltrans worker, Barner is unemployed. Cicconi said Barner spent about a year in prison.

Cicconi predicted that counties will beef up public defenders’ offices with more money and staff out of fear of large judgments.

“If they are going to allow public defenders to act negligently, they are going to be holding the bag at the end of the lawsuit,” Cicconi said.

Leeds declined to be interviewed and referred questions to her lawyer, Timothy T. Coates. He said the deputy public defender “wasn’t negligent at all” and contended that her client had refused to let her postpone the trial to investigate the FBI memo.

The state high court’s ruling in Barner v. Leeds, S070377, allows Barner to take his suit against Leeds to trial. A Los Angeles Superior Court judge had dismissed the case after finding that Leeds had immunity from being sued.

Robert Kalunian, an assistant public defender in Los Angeles, said about 20 to 30 lawsuits have been filed against the office each year in the last five years.

Even though most are dismissed and those that are settled for “nuisance value” are not particularly costly, the litigation causes a lot of wear and tear on the lawyers who are forced to defend themselves, Kalunian said.

The California Supreme Court ruled in 1998 that plaintiffs in such malpractice cases must prove that they were innocent of the crimes for which they were convicted. But Kalunian said that decision has failed to discourage prisoners with a lot of time on their hands.

The Los Angeles defenders’ office has been sued in cases in which prosecutors withheld exculpatory evidence from the defense in violation of the law, Kalunian said.

Because prosecutors have legal immunity from lawsuits, he said, the claimants “go after the defense lawyers and say, ‘You should have found out about this.’ ”