Attorney General's Opinion

Attorney General, Richard Blumenthal

September 4, 2007

Carolyn Signorelli
Chief Child Protection Attorney
Office of the Chief Child Protection Attorney
330 Main Street, 2nd Floor
Hartford, CT 06106

Dear Ms. Signorelli: 

This letter is in response to your request for a formal legal opinion as to whether attorneys who serve dually as attorneys and guardians ad litem (“GALs”) in certain Juvenile Matters are entitled to “state employee immunity and liability defense” by the Attorney General. The attorneys in question contract with the Commission on Child Protection (the “Commission”) to provide legal representation and GAL services for children and indigent parents in Juvenile Matters involving neglect and uncared-for petitions, termination of parental rights petitions, families with special needs petitions, and delinquents requiring GAL services. The Legislature requires such representation to be provided when ordered by the Superior Court. See Conn. Gen. Stat. §§ 46b-129a(2) and 46b-135. When representation is required, your office assigns counsel from among those who have contracted with the Commission to provide their services. See Conn. Gen. Stat. §§ 46b-123d; 46b-123e.

You ask whether the attorneys who have contracted with the Commission to provide such representation are (1) statutorily immune from personal liability for damages pursuant to Conn. Gen. Stat. § 4-165; and (2) entitled to indemnification and legal representation by the State pursuant to Conn. Gen. Stat. § 5-141d.¹ Both questions turn on whether the attorneys at issue are “state officers or employees.” If they are not state officers or employees, they fall outside the scope of §§ 4-165 and 5-141d and it is unnecessary to determine whether they meet the other requirements of either statute. Because we find that the attorneys in question are not state officers or employees, we conclude that they are not protected by the provisions of Conn. Gen. Stat. § 4-165 or § 5-141d.

Conn. Gen. Stat. § 4-165 protects state officers and employees from personal liability for damages. In pertinent part, § 4-165 states:

No state officer or employee shall be personally liable for damage or injury, not wanton, reckless or malicious, caused in the discharge of his or her duties or within the scope of his or her employment.

Conn. Gen. Stat. § 4-165(a)(emphasis added). As the plain language of § 4-165 makes clear, an individual must be a “state officer or employee” in order to be protected from liability.

The scope of Conn. Gen. Stat. § 5-141d is similarly limited. Section 5-141d provides that the State will indemnify and provide legal representation for state officers and employees, and members of the Public Defender Services Commission, who are sued for conduct within the scope of their employment. Anyone who is not a “state officer or employee,” or member of the Public Defender Services Commission, is not entitled to the protections of the statute.² Because the attorneys at issue are not part of the Public Defender Services Commission, the relevant question is whether they are “state officers or employees.”

The term “state officer or employee” is defined for purposes of § 4-165 and § 5-141d in Conn. Gen. Stat. § 4-141. See Hunte v. Blumenthal, 238 Conn. 146, 152 n. 8 (1996)(definition of “state officer or employee” in § 4-141 applies to § 4-165). Section 4-141 defines “state officer or employee” as:

[E]very person elected or appointed to or employed in any office, position or post in the state government, whatever such person’s title, classification or function and whether such person serves with or without remuneration or compensation, including judges of probate courts, employees of such courts, and special limited conservators appointed by such courts pursuant to section 17a-543a. In addition to the foregoing, “state officers and employees” includes attorneys appointed as victim compensation commissioners, attorneys appointed by the Public Defender Services Commission as public defenders, assistant public defenders or deputy assistant public defenders and attorneys appointed by the court as special assistant public defenders, the Attorney General, the Deputy Attorney General and any associate attorney general or assistant attorney general, any other attorneys employed by any state agency, any commissioner of the Superior Court hearing small claims matters or acting as a fact-finder, arbitrator or magistrate or acting in any other quasi-judicial position, any person appointed to a committee established by law for the purpose of rendering services to the Judicial Department, including, but not limited to, the Legal Specialization Screening Committee, the Statewide Grievance Committee, the Client Security Fund Committee, the advisory committee appointed pursuant to section 51-81d and the State Bar Examining Committee, any member of a multidisciplinary team established by the Commissioner of Children and Families pursuant to section 17a-106a, and any physicians or psychologists employed by any state agency.

Conn. Gen. Stat. § 4-141 (emphasis added).

          Although § 4-141 mentions many specific categories of individuals who are considered “state officers or employees,” it does not specifically mention attorneys appointed by the court to represent children and indigent parents in Juvenile Matters. Accordingly, it is necessary to determine whether such attorneys fall within any of the more general categories specified in section 4-141. In particular, it is necessary to determine whether they are “person[s] elected or appointed to or employed in any office, position or post in the state government,” or “attorneys employed by any state agency.” See Conn. Gen. Stat. § 4-141.

          The two leading Connecticut Supreme Court cases on the interpretation of Conn. Gen. Stat. § 4-141 are Spring v. Constantino, 168 Conn. 563 (1975), and Hunte v. Blumenthal, 238 Conn. 146 (1996). In Spring v. Constantino, the Court considered whether a public defender was a “state officer or employee” under § 4-141 and therefore eligible for the statutory immunity provided by Conn. Gen. Stat. § 4-165. After concluding that the public defender was not a “state officer” because he did not exercise any of the sovereign functions of government in defending his client, id. at 568-569, the Court turned to the more difficult question whether he was a person “appointed to or employed in any office, position or post in state government.” Although the Court noted that this definitional language was broad, and appeared on its face to encompass even independent contractors, it concluded that such a construction would conflict with the legislative intent of the statutory scheme, which was to abrogate the State’s sovereign immunity and permit the State to be sued, but only in those instances in which a private person would be liable. Because a private person is liable for the torts of his employees, but not the torts of independent contractors, the Court concluded that “the manifest intent of the statute is to limit the liability of the state to acts of its employees arising out of the employer-employee relationship.” Spring, 168 Conn. at 572.

          Having construed § 4-141 to include state employees, but not independent contractors, the Spring Court considered the relationship between the State and the defendant public defender. In so doing, the Court recognized that “[t]he fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.” Spring, 168 Conn. at 573. “[A]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.” Id.

          Applying this test to the case before it, the Spring Court concluded that “the status of the public defender, once the attorney-client relationship attaches, is that of an independent contractor rather than of an employee.” Spring, 168 Conn. at 574. This is because “[o]nce assigned, the public defender is free to act in behalf of his client as if he had been employed and retained by the defendant whom he represents. The source of his compensation is different but otherwise the relation of attorney and client is the same when a public defender appears for one accused of a crime as would be the relation between privately employed counsel and client. An attorney’s allegiance is to his client, not to the person who happens to be paying him for his services.” Id. at 575 (internal citations omitted). Because the public defender was an independent contractor, not a “state officer or employee,” the Court concluded that he was not entitled to the protections of § 4-165.³

          Twenty years later, in Hunte v. Blumenthal, 238 Conn. 146 (1996), the Court confronted the meaning of § 4-141 again when it considered whether foster parents were state employees. Applying the same test that it applied in Spring, namely whether the State has “the right to control the means and methods of work,” the Court concluded that foster parents were state employees, not independent contractors, because the State had the statutory authority, even if it did not exercise it, to regulate all aspects of a foster child’s day-to-day care, including the right to dictate such issues as when the child had to go to bed, how much television the child could watch, and how many hours the child could spend at the pool. Hunte, 238 Conn. at 155-156. Because the statutory scheme effectively stripped foster parents of the autonomy and discretion normally associated with independent contracting, the Court concluded that foster parents were state employees, not independent contractors, and therefore would be entitled to the protections of §§ 4-165 and 5-141d if they met the other requirements of those statures. Id. at 167.⁴ 

The present case is akin to Spring, not Hunte. As in Spring, the attorneys at issue are subject to some state control with regard to matters outside the scope of the attorney-client relationship. In particular, the attorneys have contractually agreed to maintain detailed records of the services that they provide, to undergo training, to accept specified compensation, and to comply with the Rules of Professional Conduct and the Commission’s Standards of Practice. See Agreement for Legal Representation of Children and Indigent Legal Parties in Juvenile Matters Proceedings. When it comes to decision-making within the context of the attorney-client relationship, however, the attorneys, like the public defenders in Spring, function independently of the State. For example, it is the attorney, not the State, who decides, based on his client’s wishes, what legal strategy to adopt, which pleadings to file, which witnesses to call at trial, whether the child should testify, and whether to appeal. Indeed, the attorney must have such autonomy, because, in representing a client, he or she is required by the Rules of Professional Conduct to advocate the position of the client, not that of a third party such as the State. See Rules of Professional Conduct 1.2, 1.4; see also Conn. Gen. Stat. § 46b-129a(b)(requiring attorney representing a child to “advocate for the child in accordance with the Rules of Professional Conduct”). This is particularly important in cases in which the client’s interests may be adverse to those of the State, such as when an attorney is representing an indigent parent against whom the State has filed a termination of parental rights petition. In such cases, it would be wholly inappropriate for the State to be exercising control over the attorney’s representation of the client. See Spring, 168 Conn. at 575. 

Under the circumstances, we conclude that attorneys who contract with the Commission to serve dually as attorneys and GALs in Juvenile Matters are independent contractors, not state officers or employees.⁵ Because these attorneys are not state officers or employees, they are not statutorily immune from personal liability pursuant to Conn. Gen. Stat. § 4-165 or entitled to indemnification and representation pursuant to Conn. Gen. Stat. § 5-141d.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL

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