Public defender liability

In December 2000, the Illinois Supreme Court affirmed that sovereign immunity does not bar an action against the attorneys of the Cook County Public Defender's Office for negligence allegedly committed in the course of representing an indigent criminal defendant, pursuant to an appointment by the circuit court. Johnson v. Halloran,194 Ill. 2d 493, 742 N.E.2d 741, 252 Ill. Dec. 203 (2000).

In the underlying case, Richard Johnson was convicted of aggravated criminal sexual assault and was sentenced to 30 years in prison. Subsequently, in the course of post-conviction proceedings, DNA tests which exonerated Johnson were performed, and his conviction was vacated. Johnson brought suit against the assistant public defender who had handled his case, alleging legal malpractice based on his defense counsel's failure to make use of the results of the tests of foreign body fluids found on the victim.

In its opinion, the Illinois Supreme Court took note of the General Assembly's subsequent enactment of the Public and Appellate Defender Immunity Act (see Public Act 91-877, effective June 30, 2000, codified at 745 ILCS 19/1 et seq. (West 2002)), but concluded that the Act did not bar Johnson's claim. Moreover, the court found that the office of the public defender is a county office rather than an agency of the State. Thus, public defenders are not entitled to sovereign immunity from legal malpractice claims.

In June 2004, Johnson's negligence suit went to trial before a Cook County jury. After a two-week trial, the jury returned a verdict in favor of the defendant. Again, it should be noted that the negligence that was the subject of the suit occurred prior to the enactment of the Public and Appellate Defender Immunity Act.