CSG Law Alert: If You Are “Drafted” by the Court to Represent an Indigent, Should You be Afforded Tort Claims Act Protection?

The New Jersey Supreme Court will hear a case with interesting implications for lawyers in private firms who are conscripted to represent indigent litigants. The Office of the Public Defender, through the staff attorneys and assigned (“pool”) attorneys, provide indigent criminal defendants with representation. Legislation has expanded their arena to include parents who are targets in termination of parental rights cases. A wrongfully convicted defendant is suing his former Public Defender in Case: A-69-18, Antonio Chaparro Nieves v. Office of the Public Defender, (Do. No. 082262), and the defendant is asserting that he is entitled to the protections of the Tort Claims Act (N.J.S.A. 59:1-1 to 12-3), including prior notice of the claim.

More interesting to private firms is the issue posed by the New Jersey State Bar Association’s amicus brief: why shouldn’t these protections be extended to cover lawyers appointed pursuant to the “Madden list”? The Courts have identified gaps where indigents who face consequences of magnitude do not have access to free counsel. The Court decided in 1992 (pending legislative action to fund representation in these areas which will probably never happen) to have lawyers appointed to represent categories of indigents who are constitutionally entitled to representation. [Madden v. Delran, 126 N.J. 591 (1992)].  Lawyers indicate on an annual registration form whether they fall within tight exemptions; if not, they are subject to appointment.

When called upon, some lawyers seize the opportunity for a court appearance. Many  understand that the privilege of practicing law comes with responsibility. Some choose a court-approved legal services organization and annually volunteer 25 hours, which entitles them to an exemption. R. 1:21-12.  Not all, however,  serve willingly. Notices issued from the County Assignment Judges for appointment under Madden and pleas to be excused are routinely received. Most unwilling lawyers claim they are too busy or complain that the assigned case is not in a familiar area for them. Common case types include parole violations, child support enforcements , domestic violence contempts, and driver’s license revocations.

Lawyers are firmly reminded that under Madden, they can always hire an attorney to handle the case for them (although they remain ultimately responsible); otherwise they are expected to spend the time to become familiar with the case type. As the Supreme Court stated regarding lawyers having to prep for novel-to-them experiences; “all were required not only to learn how to defend those cases but to find out where the courthouse is.” Madden v. Delransupra at 607.

So, does the privilege of practicing law, combined with legislative inaction,  put the private bar in an untenable position? Will the burden be partially alleviated by affording them Tort Claims Act protection? We shall see.

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