Black v. California Appellate Project, Court of Appeals of California, Second District, Division Four, June 4, 2010 (Unpublished).
Facts: Plaintiff was convicted of first degree burglary, and based on his prior criminal history, was sentenced to 38 years to life. Plaintiff appealed and the appellate court affirmed his conviction. Shortly thereafter, Black filed an action for negligence against the California Appellate Project, the organization that had appointed his defense counsel. The trial court dismissed Black’s negligence action and Black appealed.
Issue: Is a public interest organization liable for the quality of legal services rendered by an attorney that it selects and appoints to handle pro bono matters?
CAP argued that, based upon prior California decisions, Plaintiff first needed to establish a duty on the part of a government entity that could lead to potential tort liability for professional malpractice. It argued that under the California Tort Claims Act, government tort liability depends on the existence of a statute, and Plaintiff failed to cite any statute guaranteeing that CAP would provide him with legal representation free of attorney neglect or fault.
The Court, however, looked to CAP’s website which provided that its duty included not only the appointment of counsel on behalf of indigent criminal defendants, but also the evaluation of "appointed counsel’s performance in order to match attorney skill and experience with the complexity level of each particular case," "review appointed counsel’s work," and "provide a quality control function, helping to ensure that panel attorneys have available the resources necessary to provide effective representation…"
The Court further noted that CAP was not a "governmental entity" and, moreover, its work did not involve the type of "policy decisions" that are insulated from liability under the Tort Claims Act.
Finally, the Court rejected CAP’s argument that it was entitled to quasi-judicial immunity:
[T]he availability of the immunity turns on whether the person is functioning as an advocate or a nonadvocate…[T]he acts performed by [CAP was] not judicial in nature…[The acts] involved selecting defense counsel; they may also have involved substantive review of appointed counsel’s appellate representation. [CAP’s] role n no way involved fact-finding or other quasi-judicial functions.
Lesson: Public interest organizations that engage in something more than the mechanical process of appointing counsel do not appear to be protected from professional negligence actions in California.