Carrubba v. Moskowitz

CT Supreme Court

274 Conn. 533 (2005)

July 26, 2005

Prior Decision: 81 Conn. App. 382 (2004)

In a very important decision, the Connecticut Supreme Court extended absolute, quasi-judicial immunity from subsequent law suits against attorneys appointed by the courts to represent children. This case arose when a father brought a malpractice suit against the attorney appointed by the court to represent his child in a marriage dissolution action. The appellate court made its determination (81 Conn. App. 382) that such attorneys are entitled to a lesser, qualified immunity in accordance with the general presumption that the scope of immunity awarded to officers of the judicial system should be qualified and be proportionate to that which is necessary to protect the individual in performing his or her duties. The Supreme Court found the appellate court’s decision to award qualified immunity to be “inconsistent” with its stated reasoning. Accordingly, it decided to extend absolute judicial immunity to attorneys appointed by the court to represent children, recognizing that the role of these attorneys is “integral to the judicial process.”



In determining the scope of immunity that is warranted, the court adopted the test previously applied by the U.S. Supreme Court in Butz v. Economou, 438 u.S. 478, 513-17 (1995), which includes the following key questions, “(1) whether the official in question perform(s) the functions sufficiently comparable to those of officials who have traditionally been afforded absolute immunity at common law…, (2) whether the likelihood of harassment or intimidation by personal liability [is] sufficiently great to interfere with the official’s performance of his or her duties… [and] (3) whether procedural safeguards [exist] in the system that would adequately protect against [improper] conduct by the official.” The first part of the test involves a case-by-case assessment in which the court looks at the judicial functions performed by the individual. In performing the functional analysis in this case, the court recognized the dual roles of an attorney appointed to represent a child, including safeguarding the child’s best interests and acting as a advocate for the preferences expressed by the child. The primary function, as identified by this court, of an attorney appointed to represent a child is to serve the child’s best interests and it is this role that is controlling in determining the level of immunity that should be awarded. The court found such attorneys deserving of absolute immunity in the performance of their duties determined to be integral to the judicial process.

In the second part of the analysis, the court found that without the protections of absolute immunity, court appointed attorneys might be subjected to harassment or intimidation that would interfere with the performance of their duties. The court was particularly concerned that otherwise qualified attorneys might be deterred from taking court appointments to represent children if they feared possible litigation as a result or performing their assigned duties. Thus, the court found that extending absolute immunity to the child’s attorney is necessary in order to ensure that he or she will be able “to function without the worry of possible later harassment and intimidation from dissatisfied parents.”

In this case, the father alleged that the child’s attorney had personally insulted the father, made negligent and reckless misrepresentations about the father in court, that the child’s attorney had a conflict of interest because her law firm represented the father’s former spouse as well, and that the attorney acted as a “de facto guardian ad litem.” The court did not find merit in these allegations because all of the claims, with the exception of the conflict of interest claim, were essentially rooted in the plaintiff’s dissatisfaction with the way in which the attorney carried out her court-appointed role. The father’s claims did not include any allegations that the attorney acted inappropriately or outside the purview of her court-appointed role as attorney for the child. The court also determined that sufficient procedural safeguards are already in place to prevent improper conduct by court appointed attorneys because they are appointed at the discretion of the court and can be removed at any time and they could face sanctions for violations of their professional code.

The Court also affirmed the appellate court decision on the issue of standing, wherein rebuffing the father’s standing to bring a legal malpractice claim because his interests were adverse to those of the child, therefore he was not qualified to bring a claim on the child’s behalf as a next friend. The court acknowledged that in normal circumstances, a parent would have standing to bring such a claim, but in a custody dispute, “parents lack the necessary professional and emotional judgment to further the best interests of their children,” and therefore lack standing to bring a malpractice claim.

This case may be accessed at the Judicial Branch website by going

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