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CLAY v. FRIEDMAN

February 12, 1982

IVIE CLAY, PLAINTIFF,
v.
SAUL FRIEDMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Ivie Clay ("Clay") has sued several public defenders, their supervisors, the Cook County Office of the Public Defender and the Cook County Guardian ad Litem under 42 U.S.C. § 1983 ("Section 1983") based on the allegedly incompetent representation provided her in a criminal proceeding. Clay now seeks leave to file a Second Amended Complaint (the "Complaint"). For the reasons stated in this memorandum opinion and order the Court grants such leave, dismisses one defendant and certain claims against another defendant and orders further briefing on certain issues.

Individual Public Defenders

Within the past two months the Supreme Court has rejected the concept that public defenders, in their lawyering activities, act "under color" of state law for Section 1983 purposes. Polk County v. Dodson, ___ U.S. ___, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). Nonetheless Clay maintains she can sustain her action against the individual public defenders because:

    (1) They are assigned excessive caseloads by the
  State and are thus prevented from attending to their
  cases properly.
    (2) State action was involved in the hiring of
  incompetent lawyers, the failure to train them
  adequately and the failure to terminate them when
  their incompetence became evident.
    (3) Proper representation is prevented by the
  State's established method of transferring cases
  among public defenders.
    (4) Individual public defenders became de facto
  prosecutors by failing to act as adversaries and
  instead seeking to find Clay guilty.
    (5) One individual public defender conspired with
  the prosecutors.

Clay's first three contentions claim in essence that because the State caused the malpractice, the public defenders themselves became state actors. Polk County is quite clear in rejecting that sort of argument.

Polk County's main thrust was that because public defenders are lawyers they owe a duty to their defendant clients and are the State's adversary. State employment is not sufficient to tinge them with the color of state law.

Indeed Polk County dealt specifically with the first aspects of Clay's position when it said, id. at 451:

  First, a public defender is not amenable to
  administrative direction in the same sense as other
  employees of the State. Administrative and
  legislative decisions undoubtedly influence the way a
  public defender does his work. State decisions may
  determine the quality of his law library or the size
  of his caseload. But a defense lawyer is not, and by
  the nature of his function cannot be, the servant of
  an administrative superior. Held to the same
  standards of competence and integrity as a private
  lawyer, see Moore v. United States, 432 F.2d 730
  (CA3 1970), a public defender works under canons of
  professional responsibility that mandate his exercise
  of independent judgment on behalf of the client. "A
  lawyer shall not permit a person who recommends,
  employs, or pays him to render legal services for
  another to direct or regulate his professional
  judgment in rendering such legal services." DR
  5-107(B), ABA Code of Professional Responsibility
  (1977 ed.).

  That passage explicitly rejects Clay's first three
  arguments.

Polk County did note a small exception by pointing out the States' constitutional obligation to "respect the professional independence of the public defenders whom it engages" (id.). If a state were "to control their action in a manner inconsistent with the principles on which Gideon rests"*fn1 (id. at 452, emphasis added) — that is, to control (not simply affect in collateral ways) how a public defender carried out his client's defense — state action could exist. But Clay has pleaded only administrative actions (akin to the caseload and ...


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