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NJ: Negligent Private Legal Aid Attorneys Not Liable Under §1983

Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972).

NJ Underlying Criminal Defense Case.

Student Contributor: Michelle Guardado

Facts: A prisoner of the State of New Jersey sued his attorney under the Civil Rights Act, 42 U.S.C. § 1983 (1970) on the ground that the attorney did not represent him to the best of his ability. Defendant attorney had voluntarily represented prisoner during post-conviction proceedings and had been selected from a pool of attorneys who had volunteered for such duty through the Essex County Legal Aid Criminal Division. The United States District Court for the District of New Jersey ruled in favor of the attorney and prisoner then appealed to the Third Circuit.

Issue: Whether prisoner has a valid claim of attorney malpractice under the Civil Rights Act against a private attorney who volunteers to represent prisoner through a government entity.

Ruling: No, the prisoner failed state a cause of action under the Civil Rights Act because the defendant attorney was a private and not a public attorney. Under the Civil Rights Act a cause of action can only be brought against someone acting “under color of state law, custom or usage.” The court held that although the attorney was acting voluntarily by assignment from a pool of attorneys of the Essex County Legal Aid-Criminal Division, he was performing his duties solely for appellant, to whom he owed the absolute duty of loyalty, as if he were a privately retained attorney. Therefore, because defendant attorney was acting as a privately retained attorney, he was not acting “under color of state law, custom or usage” within the meaning of the Civil Rights Act. In addition, the court stated that the prisoner’s claim was barred by the two year New Jersey statute of limitations applicable to this case, since the Civil Rights Act contains no statute of limitations.

Lesson: A private attorney selected from a pool of attorneys who had volunteered to represent an indigent prisoner through a state legal aid division is not necessarily acting “under color of state law” within the meaning of the Civil Rights Act. However, liability can attach under common law legal malpractice claims. 

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Posted in: Criminal Law, New Jersey