A Federal District Court, pursuant to the Criminal Justice Act
of 1964, appointed respondent attorney to represent petitioner, an
indigent defendant, in a federal criminal trial. After petitioner
was convicted and pending his unsuccessful appeal, he sued
respondent in a Pennsylvania state court for alleged malpractice in
respondent's conduct of the federal criminal trial. The trial court
dismissed the complaint on the ground that respondent was immune
from liability. The Pennsylvania Supreme Court affirmed, resting
its decision on federal law and holding that the justification for
judicial immunity embraced in the federal system and encompassing
prosecutors and grand jurors, as well as judges, was equally
applicable to defense counsel as participants in judicial
proceedings.
Held: An attorney appointed by a federal judge to
represent an indigent defendant in a federal criminal trial is not,
as a matter of federal law, entitled to absolute immunity in a
state malpractice suit brought against him by his former client.
Pp.
444 U. S.
199-205.
(a) There is nothing in the language, the legislative history,
or the basic purpose of the Criminal Justice Act of 1964 in
providing compensation for court-appointed attorneys to support the
conclusion that Pennsylvania must accept respondent's claim of
immunity from liability for a state tort. The fact that respondent
was compensated from federal funds is not a sufficient basis for
inferring that Congress intended to grant him immunity from
malpractice suits. Pp.
444 U. S.
199-201.
(b) The primary rationale for granting immunity to judges,
prosecutors, and other public officials -- namely, the societal
interest in providing such officials with the maximum ability to
deal fearlessly and impartially with the public at large -- does
not apply to court-appointed defense counsel sued for malpractice
by his own client. In contrast to other officers of the court, the
primary office performed by appointed counsel parallels the office
of privately retained counsel. Although appointed counsel serves
pursuant to statutory authorization and in furtherance of the
federal interest in insuring effective representation of criminal
defendants, his duty is not to the public at large, except in that
general way. His principal responsibility is to serve the undivided
interests of his client, and, indeed, an indispensable element
Page 444 U. S. 194
of the effective performance of his responsibilities is the
ability to act independently of the Government and to oppose it in
adversary litigation. Pp.
444 U. S.
202-204.
483 Pa. 90,
394 A.2d
553, reversed and remanded.
STEVENS, J., delivered the opinion for a unanimous Court.
MR JUSTICE STEVENS delivered the opinion of the Court.
The question is whether an attorney appointed by a federal judge
to represent an indigent defendant in a federal criminal trial is,
as a matter of federal law, entitled to absolute immunity in a
state malpractice suit brought against him by his former
client.
On August 28, 1974, a federal grand jury for the Western
District of Pennsylvania named petitioner as a defendant in five
counts of a nine-count federal indictment alleging that he had
participated in a 1971 conspiracy to construct and use a bomb in
violation of various federal statutes. [
Footnote 1] In due course, the District Court appointed
respondent to serve as petitioner's counsel pursuant to the
Criminal Justice Act of 1964. [
Footnote 2] Respondent represented petitioner during
pretrial proceedings
Page 444 U. S. 195
and a 12-day trial. The jury found petitioner guilty on all
counts; the judge imposed a sentence of 20 years on the conspiracy
and bombing counts and an additional 10 years on the counts
charging violations of the Internal Revenue Code. The judgments of
conviction were affirmed summarily by the Court of Appeals for the
Third Circuit. [
Footnote 3]
While that appeal was pending, on March 4, 1976, petitioner
filed a "complaint in negligence" against respondent in the Court
of Common Pleas for Union County, Pa. [
Footnote 4] The complaint described 67 different instances
of alleged malpractice in respondent's conduct of the federal
criminal trial, and prayed for the recovery of substantial
pecuniary damages. [
Footnote 5]
Respondent filed a demurrer, asserting that the complaint failed to
state a cause of action and that respondent was immune from any
civil liability arising out of his conduct of petitioner's
defense.
Petitioner thereafter filed a "Traversal Brief" in which he
argued that the sufficiency of the malpractice complaint was
supported by various sections of the Pennsylvania Rules of Civil
Procedure and the Pennsylvania Constitution. [
Footnote 6] In that brief, petitioner added a
claim that respondent had negligently
Page 444 U. S. 196
failed to plead the statute of limitations as a bar to the
Internal Revenue Code counts of the indictment. [
Footnote 7]
Without ruling on its sufficiency, the Court of Common Pleas,
sitting en banc, dismissed the complaint on the ground that decided
cases and strong public policy required that a lawyer appointed to
represent an indigent defendant in a federal trial must be immune
from liability for damages. The court cited one Pennsylvania case
[
Footnote 8] but relied
primarily on federal authorities for its conclusion. [
Footnote 9] By a divided vote, the
Pennsylvania Supreme Court affirmed the order of dismissal,
squarely resting its decision on federal law.
Because the case concerned a claim of immunity by a participant
in a federal proceeding, the Pennsylvania Supreme Court believed
that it was required to look to federal law to determine whether
immunity exists and, if so, its nature and
Page 444 U. S. 197
scope. [
Footnote 10]
After reviewing federal cases holding that the common law doctrine
of judicial immunity has been embraced in the federal system and
encompasses prosecutors and grand jurors as well as judges, the
court concluded that the justification for the immunity -- the
concern that the threat of harassment by unfounded litigation might
impair the public officer's performance of his official duties --
was equally applicable to defense counsel as participants in
judicial proceedings. The court held that the privilege was
absolute, and therefore applied even to a claim of gross negligence
and even though the allegation of malpractice did not concern an
exercise of counsel's discretion.
The two dissenting justices agreed that federal law was
applicable, but regarded appointed counsel as more analogous to
privately retained counsel than to a federal officer such as a
prosecutor. Because those who can afford to retain counsel of their
own choosing have a remedy for malpractice, the dissenters felt
that the denial of a comparable remedy for the indigent would
establish a lower standard of care for appointed counsel.
The narrow issue presented to this Court is whether federal law
in any way preempts the freedom of a State to decide the question
of immunity in this situation in accord with its own law. We are
not concerned with the elements of a state cause of action for
malpractice, and need not speculate about
Page 444 U. S. 198
whether a sate court would consider petitioner's allegations
sufficient to establish a breach of duty or a right to recover
damages. [
Footnote 11] Nor
are we concerned with the question whether Pennsylvania may
conclude as a matter of state law that respondent is absolutely
immune. [
Footnote 12] For
when state law creates a cause of action, the State is free to
define the defenses to that claim, including the defense of
immunity, unless, of course, the state rule is in conflict with
federal law. U.S.Const., Art. VI, cl. 2.
For the purposes of our analysis, it is appropriate to assume
that petitioner is entitled to prevail as a matter of state law,
and to ask whether federal law requires a State to accept
respondent's defense of absolute immunity. We may begin the inquiry
by noting that there are separate federal interests that arguably
could support the application of a separate federal rule in cases
of this kind. A federal statute provided the basis for respondent's
appointment and compensation, and he participated in a federal
judicial proceeding as an "officer" of the federal court. The
identification of those federal interests does not, however,
demonstrate that an applicable federal rule of law has been adopted
by Congress or recognized by this Court. [
Footnote 13] We therefore must consider whether
respondent's immunity claim is supported by (1) the enactment of
the Criminal Justice Act of 1964 or (2) our cases considering the
immunity of federal officers for the performance of their assigned
duties.
Page 444 U. S. 199
I
The Criminal Justice Act of 1964 was enacted to provide
compensation for attorneys appointed to represent indigent
defendants in federal criminal trials. [
Footnote 14] In response to evidence that unpaid
appointed counsel were sometimes less diligent or less thorough
than retained counsel, [
Footnote
15] Congress concluded that reasonable compensation would
improve the quality of the representation of indigents. Although it
might well have been suggested that a statutory immunity would be
helpful in inducing counsel to accept representation of indigent
defendant, there is nothing in the statute itself or in its
legislative history to indicate that Congress ever considered --
much less actually intended to implement -- any such suggestion.
Indeed, Congress' attempt to minimize the differences between
retained and appointed counsel [
Footnote 16] is
Page 444 U. S. 200
more consistent with the view that Congress intended all defense
counsel to satisfy the same standards of professional
responsibility and to be subject to the same controls. [
Footnote 17]
Page 444 U. S. 201
The fact that federal funds provided the source of respondent's
compensation is not a sufficient basis for inferring that Congress
intended to grant him immunity from malpractice suits. Countless
private citizens are the recipients of federal funds of one kind or
another, but Congress surely did not intend that all such
recipients would be immune for actions taken in the course of
expending those funds.
In sum, we find nothing in the express language, the history, or
the basic purpose of the Criminal Justice Act of 1964 to support
the conclusion that Pennsylvania must accept respondent's claim of
immunity from liability for a state tort.
Page 444 U. S. 202
II
Without relying on an explicit statutory grant of immunity, this
Court has held that various federal officers, such as a captain in
the United States Navy and the Postmaster General, [
Footnote 18] are entitled to immunity from
liability for certain claims arising out of the performance of
their official duties. The immunity recognized in those cases may
be appropriately characterized as an incident of the federal
office.
In a sense, a lawyer who is appointed to represent an indigent
defendant in a federal judicial proceeding is also a federal
officer. Since other federal officers -- the judge, the prosecutor,
and the grand jurors -- enjoy immunity by virtue of their office,
arguably that immunity should be shared by appointed counsel. There
is, however, a marked difference between the nature of counsel's
responsibilities and those of other officers of the court.
[
Footnote 19] As public
servants, the prosecutor
Page 444 U. S. 203
and the judge represent the interest of society as a whole. The
conduct of their official duties may adversely affect a wide
variety of different individuals, each of whom may be a potential
source of future controversy. The societal interest in providing
such public officials with the maximum ability to deal fearlessly
and impartially with the public at large has long been recognized
as an acceptable justification for official immunity. [
Footnote 20] The point of immunity
for such
Page 444 U. S. 204
officials is to forestall an atmosphere of intimidation that
would conflict with their resolve to perform their designated
functions in a principled fashion.
In contrast, the primary office performed by appointed counsel
parallels the office of privately retained counsel. Although it is
true that appointed counsel serves pursuant to statutory
authorization and in furtherance of the federal interest in
insuring effective representation of criminal defendants, his duty
is not to the public at large, except in that general way. His
principal responsibility is to serve the undivided interests of his
client. Indeed, an indispensable element of the effective
performance of his responsibilities is the ability to act
independently of the Government, and to oppose it in adversary
litigation. The fear that an unsuccessful defense of a criminal
charge will lead to a malpractice claim does not conflict with
performance of that function. If anything, it provides the same
incentive for appointed and retained counsel to perform that
function competently. [
Footnote
21] The primary rationale for granting immunity to judges,
prosecutors, and other public officers does not apply to defense
counsel sued for malpractice by his own client. [
Footnote 22]
It may well be true, as respondent argues, that valid policy
reasons might justify an immunity for appointed counsel that need
not be accorded to privately retained counsel.
See
n 17,
supra.
Perhaps the most persuasive reason for creating such an immunity
would be to make sure that competent
Page 444 U. S. 205
counsel remain willing to accept the work of representing
indigent defendants. If their monetary compensation is
significantly less than that of retained counsel, and if the burden
of defending groundless malpractice claims and charges of
unprofessional conduct is disproportionately significant, it is
conceivable that an immunity would be justified by the need to
preserve the supply of lawyers available for this important work.
Whether a sufficient need can be demonstrated that would justify
such a rule, or whether such a problem might be better remedied by
adjusting the level of compensation, are questions that can most
appropriately be answered by a legislative body acting on the basis
of empirical data. Therefore we do not evaluate those arguments.
Having concluded that the essential office of appointed defense
counsel is akin to that of private counsel and unlike that of a
prosecutor, judge, or naval captain, we also conclude that the
federal officer immunity doctrine explicated in cases like
Howard v. Lyons, 360 U. S. 593, and
Butz v. Economou, 438 U. S. 478, is
simply inapplicable in this case. Accordingly, without reaching any
question concerning the power of Congress to create immunity, we
hold that federal law does not now provide immunity for
court-appointed counsel in a state malpractice suit brought by his
former client.
The judgment of the Supreme Court of Pennsylvania is reversed,
and the cause is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
[
Footnote 1]
The relevant sections, codified in the Criminal Code and the
Internal Revenue Code, are: 18 U.S.C. §§ 2, 371, 844(i); 26 U.S.C.
§§ 5821, 5822, 5861, 5871.
[
Footnote 2]
18 U.S.C. § 3006A. The record indicates that petitioner had
previously been represented by two other lawyers. An action against
the first for malpractice is still pending; the second was
permitted to withdraw when respondent was appointed to represent
petitioner.
[
Footnote 3]
United States v. Ferri, 546 F.2d 419 (1976).
[
Footnote 4]
Because venue was improper, the case was later transferred to
the Court of Common Pleas for Westmoreland County.
[
Footnote 5]
The prayer is somewhat ambiguous. For example, in one paragraph,
petitioner, suing on behalf of his former wife as well as himself,
asked for
"double and contingent damages sustained as a direct result from
the expenditure of funds and anxieties endured in the amount of Six
Hundred Thousand Dollars ($6,000,000.00) [
sic] jointly and
or severally as compensation for all."
App. 20. His former wife, however, wrote to the clerk demanding
that she be withdrawn as a plaintiff in what she characterized as
"an abhorrent action."
Id. at 23.
[
Footnote 6]
See id. at 31.
[
Footnote 7]
Petitioner's claim is that the 3-year statute of limitations
contained in 26 U.S.C. § 6531 applies to the Internal Revenue Code
counts. A 5-year period applies to the other counts. 18 U.S.C. §
3282. According to the indictment, the bombing occurred on August
26, 1971. The indictment was filed on August 28, 1974. Absent any
tolling, petitioner asserts that the Internal Revenue Code counts
were therefore time-barred. Because of the failure by respondent
(or either of petitioner's two previous lawyers,
see
n 2,
supra) to plead
the statute of limitations prior to trial, petitioner may be
subject to an additional 10 years in prison. The Court of Appeals
for the Third Circuit rejected the statute of limitations argument
in its unpublished order, since it was raised for the first time on
appeal.
See App. 39. It is our understanding that the
validity of the additional 10-year sentence has not yet been
determined in any collateral proceeding.
[
Footnote 8]
Reese v. Danforth, Lancaster County, 131 June Term,
1976,
aff'd per curiam, 241 Pa.Super. 604,
360
A.2d 629 (1976) (holding county public defenders immune from
state malpractice suits). That case was reversed by the Supreme
Court of Pennsylvania after we heard oral argument in this case.
486 Pa. 479,
406 A.2d
735 (1979).
[
Footnote 9]
The court also declined to rule on respondent's contention that
the state court had no jurisdiction in an action based on
ineffective assistance of counsel in a federal court because that
issue could be raised on direct appeal in the criminal case or by
way of collateral attack on the conviction.
See App.
42.
[
Footnote 10]
"Since we are here concerned with an asserted immunity
protecting a participant in a federal legal proceeding, we are
required to look to the federal law to determine whether it exists
and if it does, its nature and scope.
Howard v. Lyons,
360 U. S.
593 . . . (1959).
See also Carter v. Carlson,
144 U.S.App.D.C. 388, 391-392, 447 F.2d 358, 361-62 n. 5 (1971);
Chandler v. O'Bryan, 445 F.2d 1045, 1055 (10th Cir.1971);
Garner v. Rathburn, 346 F.2d 55, 56 (10th Cir.1965). As
noted by the United States Supreme Court in
Howard v. Lyons,
supra, the very nature of a ruling of privilege requires
reference to the law of the sovereign creating it for a
determination of its nature and scope."
483 Pa. 90, 93,
394 A.2d
553, 555 (1978).
[
Footnote 11]
Cf. Walker v. Kruse, 484 F.2d 802 (CA7 1973).
[
Footnote 12]
See Reese v. Danforth, 486 Pa. 479,
406 A.2d
735 (1979);
n 8,
supra.
[
Footnote 13]
When federal law is the source of the plaintiff's claim, there
is a federal interest in defining the defenses to that claim,
including the defense of immunity.
See, e.g., Lake Country
Estates v. Tahoe Regional Planning Agency, 440 U.
S. 391,
440 U. S. 404;
Imler v. Pachtman, 424 U. S. 409,
424 U. S.
417-419;
Pierson v. Ray, 386 U.
S. 547,
386 U. S. 554;
Tenney v. Brandhove, 341 U. S. 367,
341 U. S. 376.
That interest, of course, is not present in a case, such as this,
arising under state law.
[
Footnote 14]
As amended in 1970, the rates of compensation are $30 per hour
for time expended in court and $20 per hour for time reasonably
expended out of court (or the minimum hourly rate established by a
bar association in the district, whichever is lower), plus
reimbursement for expenses reasonably incurred. The maximum
compensation may not exceed $1,000 for an attorney in a felony case
or $400 where only misdemeanors are charged. 18 U.S.C. §§
3006A(d)(1), (2).
[
Footnote 15]
See H.R.Rep. No. 864, 88th Cong., 1st Sess., 6 (1963);
S.Rep. No. 346, 88th Cong., 1st Sess., 2 (1963); 110 Cong.Rec. 454
(1964) (remarks of Rep. Fraser); Hearings on S. 63
et al.
before the Senate Judiciary Committee, 88th Cong., 1st Sess., 249
(1963).
[
Footnote 16]
Congress clearly wanted appointed counsel to share as much of
retained counsel's characteristic independence from the Government
as was possible, notwithstanding the Government subsidy. This is
borne out by the debate over whether to include the establishment
of full-time public defender offices in the original bill. The
Senate version provided for public defenders. The House bill did
not, at least partly out of fear that full-time public defenders
would be too closely identified with the Government's efforts to
separate the guilty from the innocent, and that there would be a
risk of institutional reluctance adequately to defend the guilty.
See 110 Cong.Rec. 18558 (1964) (remarks of Rep. Moore,
author of the bill):
"The Senate bill, in addition to authorizing the appointment of
private counsel, would have empowered the Federal Government to
establish Federal public defender offices in any or all of the
judicial districts throughout the country. This would have had the
effect of placing the administration of justice totally in the
hands of the Federal Government. An individual, accused of a crime,
would have been tried before a Federal judge, prosecuted by a
Federal district attorney, and defended by a Federal public
defender. Thus, the total right to a fair trial and to the
preservation of one's right to liberty would be solely dependent
upon men appointed by the Federal Government and compensated out of
the Federal Treasury."
"This condition could easily have led to the establishment of
totalitarian justice with the well known unfairness and inequities
found in totalitarian states. In addition, this condition could
have severely undermined the duties and responsibilities of members
of the bar who I believe are under an obligation to defend
individuals, even those without funds and even [those] charged in
an unpopular cause. The burdens of preserving a healthy society
have been gradually eroded in recent years through too great a
dependence upon the Federal Government. It did not seem desirable
to a majority of the Members of the House to further this erosion.
The House bill, then, adopted a philosophy totally different from
that reported in the Senate."
See also id. at 445 (remarks of Rep. Moore);
id. at 455 (remarks of Rep. McCulloch); Hearings on H.R.
1027
et al. before Subcommittee No. 5 of the House
Judiciary Committee, 88th Cong., 1st Sess., 110 (1963)
The House view prevailed at the conference, and the 1964 version
of the Act contained no provision for public defenders. In 1970,
after a study of the need for public defenders, particularly in the
larger districts, Congress amended the Criminal Justice Act to
permit the establishment of public defenders to supplement
individual appointments of defense counsel. We have found nothing
in the legislative history of the 1970 amendments that indicates
Congress intended public defenders to be immune from malpractice
actions.
[
Footnote 17]
As THE CHIEF JUSTICE noted several years ago,
"defense counsel who is appointed by the court . . . has exactly
the same duties and burdens and responsibilities as the highly
paid, paid-in-advance criminal defense lawyer."
Burger, Counsel for the Prosecution and Defense -- Their Roles
Under the Minimum Standards, 8 Am.Crim.L.Q. 2, 6 (1969).
See
also ABA Project on Standards for Criminal Justice, Defense
Function § 3.9 (App. Draft 1971).
Respondent argues that there are valid policy reasons that
justify an immunity for appointed counsel not accorded privately
retained counsel. The claim is that a defendant's relationship with
appointed counsel is substantially different than it would be with
retained counsel because of the inability to choose and freely to
discharge counsel.
See, e.g., Criminal Justice Act Plan
for the Western District of Pennsylvania § IV A(3). The defendant
would therefore tend to perceive appointed counsel as a
representative of the government, and to view him with suspicion.
After conviction, a defendant's inevitable bitterness would lead to
a high risk of retaliatory lawsuits, the same fear that underlies
immunity for judges and prosecutors.
Butz v. Economou,
438 U. S. 478,
438 U. S. 510.
Further, because of the increased risk of malpractice actions,
appointed counsel would be more susceptible to pressure from
clients to call additional witnesses or to make additional
arguments that would, in fact, prejudice the defendant's own case.
But respondent has not directed our attention to any empirical data
-- in judicial decisions, legislative hearings, or scholarly
studies -- to support his conclusions that the risk of malpractice
litigation deters members of the private bar from accepting the
representation of indigent defendants or adversely affects the
quality of representation. Given the speculative, though not
implausible, nature of respondent's arguments, we are unwilling to
ascribe to Congress an intent to accord an immunity to appointed
counsel not given retained counsel in the face of the silent
legislative history on this point.
[
Footnote 18]
Howard v. Lyons, 360 U. S. 593;
Spalding v. Vilas, 161 U. S. 483;
Kendall v.
Stokes, 3 How. 87.
[
Footnote 19]
Writing for the Court in
In re Griffiths, 413 U.
S. 717,
413 U. S.
728-729, MR. JUSTICE POWELL responded to the argument
that a lawyer is comparable to other holders of governmental office
as follows:
"We note at the outset that this argument goes beyond the
opinion of the Connecticut Supreme Court, which recognized that a
lawyer is not an officer in the ordinary sense. 162 Conn. [249,]
254, 294 A.2d [281,] 283 [(1972)]. This comports with the view of
the Court expressed by Mr. Justice Black in
Cammer v. United
States, 350 U. S. 399 (1956):"
"It has been stated many times that lawyers are 'officers of the
court.' One of the most frequently repeated statements to this
effect appears in
Ex parte Garland, 4 Wall.
333,
71 U. S. 378. The Court
pointed out there, however, that an attorney was not an 'officer'
within the ordinary meaning of that term. Certainly nothing that
was said in
Ex parte Garland or in any other case decided
by this Court places attorneys in the same category as marshals,
bailiffs, court clerks or judges. Unlike these officials, a lawyer
is engaged in a private profession, important though it be to our
system of justice. In general, he makes his own decisions, follows
his own best judgment, collects his own fees, and runs his own
business. The word 'officer,' as it has always been applied to
lawyers, conveys quite a different meaning from the word 'officer'
as applied to people serving as officers within the conventional
meaning of that term."
Id. at
350 U. S. 405
(footnote omitted)."
[
Footnote 20]
As Mr. Justice Harlan wrote in his opinion in
Barr v.
Matteo, 360 U. S. 564,
360 U. S.
571-572:
"The reasons for the recognition of the privilege have been
often stated. It has been thought important that officials of
government should be free to exercise their duties unembarrassed by
the fear of damage suits in respect of acts done in the course of
those duties -- suits which would consume time and energies which
would otherwise be devoted to governmental service and the threat
of which might appreciably inhibit the fearless, vigorous, and
effective administration of policies of government. The matter has
been admirably expressed by Judge Learned Hand:"
" It does indeed go without saying that an official, who is in
fact guilty of using his powers to vent his spleen upon others, or
for any other personal motive not connected with the public good,
should not escape liability for the injuries he may so cause; and,
if it were possible in practice to confine such complaints to the
guilty, it would be monstrous to deny recovery. The justification
for doing so is that it is impossible to know whether the claim is
well founded until the case has been tried, and that, to submit all
officials, the innocent as well as the guilty, to the burden of a
trial and to the inevitable danger of its outcome, would dampen the
ardor of all but the most resolute, or the most irresponsible, in
the unflinching discharge of their duties. Again and again the
public interest calls for action which may turn out to be founded
on a mistake, in the face of which an official may later find
himself hard put to it to satisfy a jury of his good faith. There
must indeed be means of punishing public officers who have been
truant to their duties; but that is quite another matter from
exposing such as have been honestly mistaken to suit by anyone who
has suffered from their errors. As is so often the case, the answer
must be found in a balance between the evils inevitable in either
alternative. In this instance, it has been thought in the end
better to leave unredressed the wrongs done by dishonest officers
than to subject those who try to do their duty to the constant
dread of retaliation. . . ."
"
Grere v. Biddle, 177 F.2d 579, 581."
[
Footnote 21]
There is no claim that retained counsel are rendered immune from
malpractice actions by virtue of their participation in federal
criminal trials.
[
Footnote 22]
Our discussion is confined to immunity in malpractice actions.
We do not address the question whether defense counsel is immune
from other kinds of tort suits, such as a defamation action brought
by someone other than his client.
Cf. Butz v. Economou,
438 U.S. at
438 U. S. 512
(dictum).