systems and individual defenders are subject to § 1983 actions, then surely they
are also entitled to, at the very least, qualified immunity.
113
In sum, damages for the constitutional violation of one’s right to the
effective assistance of counsel are extremely unlikely in light of current
immunity doctrines and prudential concerns.
Such actions are often barred by
Heck v. Humphrey
if the conviction has not been set aside, and even if the
actions are not precluded, there is unlikely to be a viable defendant from whom
the convicted person could recover damages.
Prosecutors enjoy absolute
immunity; states enjoy sovereign immunity; and liability against counties for
particular errors of counsel will be similarly rare.
114
Likewise, § 1983 actions
against defense counsel are generally barred by the
Dodson
decision.
115
Constitutional tort actions for relief from ineffective assistance of counsel, in
short, are not available.
There is no reliable way to vindicate the Sixth
Amendment through damages in this context.
There is, however, a tort action
that could theoretically bring the same level of compensatory or even punitive
damages to an injured defendant: a malpractice lawsuit.
116
granted certiorari in
Dodson
to resolve the issue.
The Court endorsed the reasoning of most of the decisions
that held neither state employment nor state compensation created color of law, since an attorney’s loyalty was
determined by ethical obligations, not by the source of the lawyer’s employment or compensation.”
Id
.
113.
See
Dodson
, 454 U.S. at 316. The lower court in the
Dodson
case had rejected “the argument that a
public defender should enjoy the same immunity provided to judges and prosecutors. It held that the
defendants were entitled to a defense of ‘good faith,’ but not of ‘absolute,’ immunity.”
Id
.
114.
See
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 67 (1989); Pembaur v. City of Cincinnati, 475
U.S. 469, 479-80 (1986); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
115.
See Dodson
, 454 U.S. at 321-22.
116.
See
James L. Buchwalter,
Cause of Action for Malpractice Against Defense Attorney for Ineffective
Representation During Pretrial Phase of Criminal Case
,
in
42
C
AUSES OF
A
CTION
707, 709, 721-24 (2d ed.
2009 & Supp. 2012).
Some jurisdictions treat malpractice cases as contract actions.
See id.
at 722-23.
There
is, however, no apparent practical difference.
Malpractice actions are premised on “instance[s] of negligence
or incompetence on the part of a profession” and do not reflect necessarily a constitutional violation.
B
LACK
’
S
L
AW
D
ICTIONARY
444 (3d pocket ed. 2006).
Nonetheless, if one could satisfy the
Strickland
standard—
because many courts regard the legal showing under
Strickland
and malpractice as functionally equivalent—
one should be entitled to a malpractice award.
Alevras v. Tacopina, 399 F. Supp. 2d 567, 572 (D.N.J. 2005),
aff’d
, 226 F. App’x 222 (3d Cir. 2007) (holding that “denial of Alevras’ claim that he received ineffective
assistance of counsel necessarily negates . . . his legal malpractice claim” and noting that “some courts
