Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
CLAY v. FRIEDMAN
February 12, 1982
IVIE CLAY, PLAINTIFF,
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
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
(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
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
That passage explicitly rejects Clay's first three
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 ...
Buy This Entire Record For