February 20, 2004
IMMUNITY-ATTORNEYS APPOINTED IN CHILD CUSTODY CASES
By: George Coppolo, Chief Attorney
You asked whether attorneys the Superior Court appoints to represent minor children in divorce and child custody cases are immune from liability in connection with such representation. The Office of Legislative Research is not authorized to render legal opinions and this report should not be considered one.
There does not appear to be any statutory immunity for attorneys appointed by the Superior Court under CGS § 46b-54 to represent the interest of minor children in divorce and child custody cases. State employees and private attorneys appointed to perform various functions are protected by a limited statutory immunity under CGS § 4-165. But attorneys appointed by the court under CGS § 46b-54 are not specifically mentioned in this statute or the related statue that defines “state officers and employees” and thus do not appear to be protected.
But a February 3, 2004, Appellate Court decision for the first time gives attorneys appointed under CGS 46b-54 a common law qualified quasi-judicial immunity from liability (Carrubba v. Moskowitz (AC 22962) (copy enclosed)). This type of immunity shields people from civil damages for conduct that “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Under this type of immunity, appointed attorneys are immune from suit with respect to actions taken in furthering the representation of the minor child unless such actions are done with malice, wantonness, or an intent to injure.
The court concluded that the threat of civil liability would seriously impair their ability to represent the child client. As a result, the ability of the court to perform its judicial duties also would be impaired. According to the court, because those appointed attorneys exercise discretion and make critical judgments on behalf of their clients and the court, they must be protected by judicial immunity from needless collateral litigation that would undermine their good faith efforts to represent the interests of children, including the zealous pursuit of positions adverse to those of the parents. In the court's view, failing to extend immunity would be contrary to the strong public policy requiring the appointed attorney to exercise good faith in reaching an independent position on the child's behalf.
The immunity the court gave court appointed attorneys appears to be essentially the same as the statutory immunity provided by CGS § 4-65, which immunizes state employees and officers from liability for damages caused in the discharge of their duty or within the scope of their employment as long as their conduct was not wanton, reckless, or malicious.
It would appear that the legislature could extend the statutory immunity to attorneys appointed under CGS § 46b-54 if it wished to.
In Carrubba, the court also decided that the father lacked standing to bring a malpractice lawsuit on behalf of his son against his son's court appointed attorney because his interests were adverse to those of his son.
State Officer And Employee Immunity Statute CGS § 4-165
Section 4-165 provides that no state officer or employee is personally liable for damage or injury, not wanton, reckless, or malicious, caused in the discharge of his duties or within the scope of their employment. Any person who has a complaint for such damage or injury must present it as a claim against the state under the claims commissioner laws. Section 4-141 defines state officers or employees. This definition does not specifilly include attorneys appointed under CGS 46b-54.
Section 4-165 defines “scope of employment” as including, but not limited to (1) representation by an attorney appointed by the Public Defender Services Commission as a public defender, assistant public defender or deputy assistant public defender; (2) representation by an attorney appointed by the court as a special assistant public defender of an indigent accused or of a child on a delinquency petition; (3) representation by attorneys employed by a state agency of state officers and employees, in actions brought against such officers and employees in their official and individual capacities; (4) the discharge of duties as a trustee of the state employees retirement system; (5) the discharge of duties of a commissioner of the Superior Court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position; and (6) the discharge of duties of a person appointed to a committee established by law to render services to the Judicial Department including, but not limited to, the Legal Specialization Screening Committee, the State-Wide Grievance Committee, the Client Security Fund Committee, and the State Bar Examining Committee. But the statute specifies that such actions must arise out of the discharge of their duties or within the scope of their employment.
CARRUBBA V. MOSKOWITZ
Facts and Procedural Background
In the prior marital dissolution action between Paul Carrubba and his former wife, the defendant, Emily Moskowitz, served as court- appointed counsel for the minor children. The marriage was dissolved on February 11, 1997. On November 2, 1998, in a post judgment motion, Paul Carrubba sought to disqualify the defendant. The court denied the motion.
On November 13, 2000, the plaintiffs filed a lawsuit against Moskowitz. In the first count, the plaintiffs claimed that the defendant intentionally or negligently caused Paul Carrubba to suffer emotional distress. In the second count, one of the minor children Moskowitz had represented, through his father alleged legal malpractice against the defendant. On December 12, 2000, the defendant filed a motion to dismiss the action. The court granted the defendant's motion as to both counts and subsequently denied the plaintiffs' motion to reargue. The plaintiffs appealed the judge's decision to dismiss the case.
Lower Court's Reasoning
The trial court concluded that the court appointed attorney was immune by relying on the reasoning set forth in Whitney v. Taplin, Superior Court, Judicial District of Fairfield, Docket No. 339190 (May 28, 1999) (24 Conn. L. Rptr. 610). That case held that judicial immunity extends to guardians ad litem. Specifically, the trial court agreed that, like prosecutors, guardians ad litem should be shielded from litigation to preserve the guardian's independent judgment, and went on to conclude that attorneys for minor children appointed under § 46b-54, like guardians ad litem, should also be granted judicial immunity for their actions taken during the representation of a minor child.
Appellate Court's Conclusion and Holding
The Appellate Court upheld the trial court's decision to dismiss the case. It held that court appointed attorneys appointed by courts to represent minor children under CGS § 46b-54 are entitled to a common law qualified quasi judicial immunity.
Court's Reasons for Extending Immunity to Court Appointed Attorneys
The court decided to extend this common law immunity for public policy reasons. It pointed out that such attorneys did not function like privately retained attorneys. Rather, such attorneys serve at the court's discretion and have less independence then a private counsel. For example, the court may prevent the attorney from advancing arguments that conflict with the child's best interests. The attorney is not simply to parrot the child's expressed interests, but must present all evidence available concerning the child's best interests. This, in the court's view, imposes a higher degree of objectivity as a child's court-appointed attorney than that for an attorney representing an adult.
The court also noted that attorneys representing minor children must exercise good faith in reaching an independent position on the child's behalf. The required independence results from the fact that young children are incapable of intellectually expressing their views. For the judgment to be truly independent, the attorney must not be threatened by the possibilities that differences of opinion with the child's parents may result in a lawsuit. The threat of a lawsuit by the parents may serve to intimidate and discourage the attorney from taking appropriately forceful positions on the child's behalf, if they are adverse to the interests of either, or both, of the child's parents.
The court concluded that the threat of civil liability would seriously impair the ability of a court- appointed attorney to represent the child client. As a result, the ability of the court to perform its judicial duties also would be impaired. According to the court, because those appointed attorneys exercise discretion and make critical judgments on behalf of their clients and the court, they must be protected by judicial immunity from needless collateral litigation that would undermine their good faith efforts to represent the interests of children, including the zealous pursuit of positions adverse to those of the parents. Failing to extend immunity would be contrary to the strong public policy requiring the appointed attorney to exercise good faith in reaching an “independent” position on the child's behalf.
Type of Immunity
The court noted that common-law absolute immunity extends only to those who are intimately involved in the judicial process, including judges, prosecutors, and judges' law clerks. Absolute judicial immunity, however, does not extend to every officer of the judicial system. Moreover, the court noted, that even judges do not enjoy absolute immunity for administrative as opposed to judicial actions. The determination is made using a functional approach. The functional approach assumes that immunity flows not from rank or title or location within the government but from the nature of the responsibilities of the individual official.
Qualified immunity, on the other hand, provides less protection than absolute immunity. It shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity typically turns on the objective legal reasonableness of the action assessed in light of the legal rules that were clearly established at the time it was taken. Qualified immunity permits courts expeditiously to weed out suits, which fail the test without requiring a defendant who rightly claims qualified immunity to engage in expensive and time consuming preparation to defend the suit on its merits.
The court concluded that on the basis of a review of the functions of these appointed attorneys, qualified rather than absolute immunity should apply.
Under this type of immunity, appointed attorneys are immune from suit with respect to actions taken in furthering the representation of the minor child unless such actions are done with malice, wantonness or an intent to injure. That exception to the immunity afforded to court-appointed attorneys applies only to actions directed at the minor child and not at his or her parents.
The court pointed to the Court's definition of malice as acting with an improper or unjustifiable motive (see Haxhi v. Moss, 25 Conn. App. 16, 19, 591(1991)). Additionally, it pointed out that Black's Law Dictionary defines malice as the “intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent.” (Black's Law Dictionary (6th Ed.1990)). The court therefore concluded that, absent a claim that the appointed attorney acted with malice, wantonness, or an intent to injure the child, attorneys appointed pursuant to § 46b-54 are immune from suit for their actions taken within the scope of representing a minor child.
The court agreed with the trial court's conclusion that Paul Carrubba's interests were adverse to those of Matthew Carrubba and, therefore, did not have standing to bring the malpractice claim against the court appointed attorney on his son's behalf. The court noted that the defendant was responsible for undertaking actions that represented the best interest of the minor, Matthew Carrubba, and it was precisely those actions to which Paul Carrubba had objected. According to the court, allowing parents to penetrate the shield of immunity merely by bringing suit in the child's name would undermine the public policy goals supporting the immunity that the court extended. Although the complaint was couched in the traditional language of a legal malpractice case, the substance of the claim was not that the defendant violated the standard of care of lawyers representing a client, but that the defendant improperly exercised her judgment in determining the wishes of Matthew Carrubba due to his infancy.
The court observed that case law also is clear that a person cannot gain standing by asserting the due process rights possessed by another individual. Thus, once the court finds it appropriate to appoint counsel
for a minor child under § 46b-54 that representation is the child's entitlement, not the parent's. Accordingly, the Appellate Court stated that a parent does not have standing to make claims against a court-appointed attorney who represented his or her minor children during divorce proceedings.