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VT: Contract lawyer for state not state employee

Reed v. Glynn, 724 A.2d 464 (Vt. 1998)

VT. Underlying Criminal Defense

Student Contributor:  Eric B. Kang

Facts: Lawyer had a contract with the Windsor County defender general to provide representation to indigent defendants in cases in which the public defender was disqualified because of a conflict of interest or was otherwise unavailable. The contract explicitly stated that he would act in an independent capacity, and not as an employee of the state. Lawyer represented client in a probation revocation proceeding. After the court found the client guilty of violating the terms of his probation and sentenced him to 3-5 years in jail, the client sued lawyer because he was dissatisfied in part for not exploring a favorable plea agreement with the probation officer and the state’s attorney. The trial court granted lawyer’s motion for summary judgment, in which the lawyer argued that he was a state employee and thus could not be sued. Client appealed.

Issue: Whether lawyer contracted to provide representation for indigent clients for the state is considered a state employee.

Ruling: No. The court here looked at the definition of “state employee” in Vermont statute, which defined a state employee to include “any elective or appointive officer or employee within the legislative, executive or judicial branches of state government or any former such employee or officer.” 3 V.S.A. §1101(b). Looking at the plain meaning of the statute, the court held that the lawyer did not fit within the definition of a “state employee,” and was neither an “officer” nor an “employee” of state government. The court then noted that under common law, if “the party for whom the work is being done … specif[ies] the result only, and the [party performing the work] may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employee, but an independent contractor.” Reed v. Glynn, 724 A.2d 464, 466 (quoting Kelley’s Dependents v. Hoosac Lumber Co., 95 Vt. 50 (1921)). Here, the court noted that the defender general had no control over the means and methods by which the lawyer provided representation to indigent clients.

Lesson: When lawyers contract for employment with the state, that relationship alone will not convince courts to recognize that the lawyer is a “state employee.” Rather, like any other employment relationship, the courts will look at the nature of the employment and assess whether this was an employee-employer relationship, or the lawyer is an independent contractor.

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Posted in: Criminal Law, Vermont