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The
defendant represented the minor plaintiff, MC, as the court appointed
attorney in a custody dispute between MC's parents in which the
trial court awarded custody to MC's mother. MC's father and MC sued
the defendant based on her representation of MC during the custody
dispute. Mr. Carrubba alleged, inter alia, that the defendant's
inappropriate legal representation resulted in emotional distress
to him, and that she had committed legal malpractice by acting as
a guardian ad litem rather than advocating for what MC
wanted. The trial court granted the defendant's motion to dismiss
based on the reasoning that, in her capacity as a court appointed
attorney pursuant to statute, she had quasi-judicial immunity an
was therefore immune from suit. The plaintiffs appealed the ruling.
In a
well-reasoned opinion, the Appellate Court affirmed the dismissal
and in turn, thoroughly analyzed the concept of quasi-judicial immunity.
According to the court, the purpose of judicial immunity was to
shield those with adjudicative duties from harassment, intimidation
or other undue interference with the decision-making process and
to allow them the make impartial decision for the benefit of the
public. Therefore, in order for an attorney that has been appointed
by the court to a child to have judicial immunity, their role must
be "closely associated with the judicial process."
The
court first looked at the difference between the typical minor's
attorney and those appointed by the court pursuant to statute. The
typical attorney simply represents the child while the court decides
what is in that child's best interest. However, when the attorney
is appointed by the court, issues regarding the child's best interest
are also implicated, creating overlapping roles between the child's
attorney and supporting the child's best interest similar to the
role assumed by a guardian ad litem. This dual role requires that
the attorney have additional protection, i.e., immunity, not normally
afforded to an attorney.
A comparison
is then made between the role of the court appointed attorney and
the public defender who does not have judicial immunity. In Spring
v. Constantino, 168 Conn. 563 (1975), the Connecticut Supreme
Court found that even though a public defender is appointed by the
court to aid in the judicial process, the purpose of the public
defender is not to aid the state but the client with individual
representation. Unlike the public defender who serves the interests
of his client, the minor's court appointed attorney has less independence
in his representation because is it based on the court's discretion,
not that of the minor. This is based on the fact that while the
court appointed attorney is responsible for representing the child,
he also has the responsibility for presenting all information relating
to that child's best interest, even if it goes outside of the child's
wishes. It is the belief that children, because of their age, do
not always know what is in their best interest and, therefore, their
wishes are not always commensurate with what is best for them. Court
appointed attorneys "serve as counselors, advisers, negotiators,
conciliators and investigators. More than advocates, those attorneys
also must attend to the special emotional needs of their young clients."
(pp. 392-393) Therefore, the line between the appointed guardian
ad litem and the court appointed attorney is not definite. If the
court appointed attorney were to be subject to civil liability,
his ability to function in this role would be jeopardized and, therefore,
judicial immunity, in the form of qualified immunity, should apply.
Unless the court appointed attorney asks with malice or wantonness,
he is immune from suit regarding actions taken to represent a child.
The court
goes one step further and decides the process by which judicial
immunity should be raised in response to an action. It concludes
that qualified quasi-judicial immunity should be raised as a special
defense. This comports with the procedures for raising governmental
immunity.
The court
also addressed the issue of whether the trial court properly found
that Mr. Carrubba did not have standing to bring a legal malpractice
claim against the defendant. The court concluded that it did based
on two facts: (1) that Mr. Carrubba's legal interests were opposed
to those of his son, and (2) that Mr. Carrubba did not show prejudice
towards his own case. In other words, Mr. Carrubba did not show
that he was an aggrieved party. However, the court found that in
a next best friend situation, the real test is whether the person
claiming to be the minor's next best friend has the same legal interests
as the child.
In this
case, the father and child had adverse legal interests. While the
father was responsible for looking out for the best interest of
his son - - he was objecting to those exact best interests. The
court saw this as a way of taking a back door into the issue and
trying to avoid the issue of judicial immunity by simply bringing
suit in the child's name, undermining the exact public policy goals
already set out.
In a
short dissent, Judge Hennessy argued that the legislature, not the
judiciary, choose to exercise its authority to extend immunity to
court-appointed attorneys for minors. He accused the majority as
exceeding its constitutional limitation through judicial legislation.
Important policy decisions such as immunity in legal representation
are best left to the "lawmaking body."
Note:
The Connecticut Supreme Court certified the plaintiff's appeal on
the two aforementioned issues at 268 Conn. 916 (2004), docket number
SC 17157.
This
case may be accessed at the Judicial Branch website by going to
http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP81/81ap552.pdf.
Johanna
Gordon, Legal Intern (7/04)
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