systems and individual defenders are subject to 1983 actions then surely they

Systems and individual defenders are subject to 1983

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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
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