Tuesday, July 19, 2005

Taking an Inch

Judges, Police, Prosecutors, and Defense Lawyers are taking America down a dangerous path. They shouldn't be giving themselves immunity from prosecution, taking responsibility for their actions, and having to pay damages when they are found to have caused harm.

If a doctor cuts off the wrong limb isn't he or she liable? Are you immune from prosecution?

Those that are immune from prosecution and liability are given a blank check to break the law as they see fit.

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Absolute Immunity For Some Lawyers

By LYNNE TUOHY

Hartford Courant Staff WriterJuly 19 2005

The state Supreme Court on Monday granted lawyers who are appointed to represen tchildren in hotly contested custody disputes absolute immunity from being sued by disgruntled parents, in a ruling anxiously awaited by family lawyers.

During the nearly five years the case of Paul Carrubba vs. Attorney EmilyMoskowitz has been pending, many family lawyers have declined to accept appointments as attorneys for minor children in divisive divorce cases, fearing the devastating financial consequences of negligence and malpractice cases.

"This decision is so crucial," said attorney Robert J. Kor, who represented Moskowitz.

"It provides for the first time in the state of Connecticut absolute immunity to court-appointed lawyers for minor children, so they can fulfill their obligation to the child and the court without fear of being sued and without the distraction of having to defend themselves in subsequent proceedings."

Had the court gone the other way and denied immunity, it would have been openseason on court-appointed attorneys for minor children," said Kor, who is alsoMoskowitz's husband.

The Carrubba divorce case in Superior Court in Hartford was one of those antipathy-laden cases in which judges often feel the need to appoint a lawyer to advise the court on what is in the best interests of the child. These lawyers, working in the midst of emotional turmoil and tension, have a dual role of both advocating what the child wants and advising the court on what is in the bestinterests of the child - obligations that often don't dovetail. Court-appointedlawyers for minor children weigh in on such weighty matters as custody, visitation, education and therapy.

Moskowitz was appointed in 1994 to represent the Carrubbas' children, Jessica and Matthew.

The marriage was dissolved in 1997. In November 2000, Paul Carrubbasued Moskowitz, claiming she negligently inflicted emotional distress on him,and also sued her for legal malpractice on his son's behalf.

"Since the Carrubba case was filed, I stopped being an attorney for minor children, as did many of my friends, because we couldn't take the chance ofbeing sued," Moskowitz said Monday.

"Who would take that chance? You have two shots of being sued in every case. At a $5,000 deductible for most malpractice cases, it's not worth that."

The state Supreme Court's unanimous and strongly worded decision Monday expands upon an Appellate Court ruling last year that upheld the trial court's dismissal of Carrubba's suit against Moskowitz, but granted court-appointed lawyers only qualified, or limited, immunity. Under that standard, court-appointed attorneys could invoke immunity as a special defense in battling lawsuits, but could not use it as grounds for dismissal of the lawsuit.

Most government officials are entitled to qualified, rather than absolute, immunity.

Even judges have absolute immunity only in the performance of their judicial functions; as administrators, these same judges are protected only by qualified immunity. The grant of absolute immunity, as Justice David M. Bordennoted in Monday's ruling, is "strong medicine."

Connecticut's highest court adopted the three-pronged standard invoked by theU.S. Supreme Court in determining when a court-appointed attorney qualifies forabsolute immunity. The analysis includes whether liability, intimidation and harassment might deter the lawyer from performing his or her court-ordered role; whether there are sufficient procedural safeguards against misconduct by the lawyer; and whether the lawyer is performing a function integral to the judicialprocess.

"The threat of litigation from a disgruntled parent, unhappy with the positionadvocated by the attorney for the minor child in a custody action, would be likely not only to interfere with the independent decision-making required bythis position, but may very well deter qualified individuals from acceptingappointment in the first place," Borden wrote.

Attorney George W. Kramer, who represents Carrubba, said he believes the Connecticut Supreme Court is the only top state court in the country to extendabsolute immunity to court-appointed attorneys, and did so contrary to Connecticut case law.

"Their prior decisions have said that the attorney for the minor child is that -an attorney acting like any other attorney," Kramer said.

"I think this decisionis inconsistent."

Among the claims Carrubba brought against Moskowitz was that she called him profane names during several mediation sessions over custody. And Carrubba sued her, even though he ultimately obtained custody of Matthew, now 15 and an honor roll student living with his father in Florida.

"In my opinion, you need people who have patience and wisdom to be attorneys for minor children," Kramer said.

"You don't need people who are going to be calling people [obscenities] ratcheting up the emotional factor. When you're talking about your children, and to have an attorney saying these things to you, to say it's upsetting is a gross understatement."

Kramer also disputed whether the case had a chilling effect on the availability of attorneys to represent minor children in custody disputes.

"It never scared anyone off."

The state Supreme Court also upheld the decisions of both the trial court and the Appellate Court that Paul Carrubba had no standing to sue Moskowitz forlegal malpractice on his son's behalf, as "next friend" of Matthew Carrubba.

While parents typically may assume such a role, parents in a contentious custodydispute may not, because their interests may be adverse to those of the children over whom they seek custody.

"We agree with the Appellate Court ... that in a custody dispute, `parents lackthe necessary professional and emotional judgment to further the best interestsof their children. ...

A parent's judgment is or may be clouded with emotion and prejudice due to the estrangement of husband and wife,'" Borden wrote, quoting the Appellate Court ruling.

Copyright 2005, Hartford Courant

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