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In a very important decision, the Connecticut
Supreme Court extended absolute, quasi-judicial immunity
from subsequent law suits against attorneys appointed by the courts
to represent children. This case arose when a father brought a malpractice
suit against the attorney appointed by the court to represent his
child in a marriage dissolution action. The appellate court made
its determination (81 Conn. App. 382) that such attorneys are entitled
to a lesser, qualified immunity in accordance with the general presumption
that the scope of immunity awarded to officers of the judicial system
should be qualified and be proportionate to that which is necessary
to protect the individual in performing his or her duties. The Supreme
Court found the appellate court's decision to award qualified immunity
to be "inconsistent" with its stated reasoning. Accordingly, it
decided to extend absolute judicial immunity to attorneys appointed
by the court to represent children, recognizing that the role of
these attorneys is "integral to the judicial process."
In the second part of the analysis, the court found
that without the protections of absolute immunity, court appointed
attorneys might be subjected to harassment or intimidation that
would interfere with the performance of their duties. The court
was particularly concerned that otherwise qualified attorneys might
be deterred from taking court appointments to represent children
if they feared possible litigation as a result or performing their
assigned duties. Thus, the court found that extending absolute immunity
to the child's attorney is necessary in order to ensure that he
or she will be able "to function without the worry of possible later
harassment and intimidation from dissatisfied parents."
In this case, the father alleged that the child's
attorney had personally insulted the father, made negligent and
reckless misrepresentations about the father in court, that the
child's attorney had a conflict of interest because her law firm
represented the father's former spouse as well, and that the attorney
acted as a "de facto guardian ad litem." The court did not find
merit in these allegations because all of the claims, with the exception
of the conflict of interest claim, were essentially rooted in the
plaintiff's dissatisfaction with the way in which the attorney carried
out her court-appointed role. The father's claims did not include
any allegations that the attorney acted inappropriately or outside
the purview of her court-appointed role as attorney for the child.
The court also determined that sufficient procedural safeguards
are already in place to prevent improper conduct by court appointed
attorneys because they are appointed at the discretion of the court
and can be removed at any time and they could face sanctions for
violations of their professional code.
The Court also affirmed the appellate court decision
on the issue of standing, wherein rebuffing the father's standing
to bring a legal malpractice claim because his interests were adverse
to those of the child, therefore he was not qualified to bring a
claim on the child's behalf as a next friend. The court acknowledged
that in normal circumstances, a parent would have standing to bring
such a claim, but in a custody dispute, "parents lack the necessary
professional and emotional judgment to further the best interests
of their children," and therefore lack standing to bring a malpractice
claim.
This case may be accessed at the Judicial Branch website
by going to: www.jud.state.ct.us/external/supapp/Cases/AROcr/CR274/274CR104.pdf
Sarah Peterson, Legal Intern
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