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Can You Sue a Government Lawyer for Malpractice?


A federal statute (42 USC § 1983) gives criminal prosecutors immunity for actions “intimately associated with the judicial phase of the criminal process.” In some situations, public defenders may also receive immunity for actions taken in connection with defending their clients at trial. Further, federal prosecutors receive absolute immunity from suit for administrative acts directly relating to the conduct of a trial.

“Absolute immunity” means the prosecutor (or, in appropriate circumstances, the public defender) cannot be sued for actions taken in the scope of the duties for which they receive immunity.

By contrast, “qualified immunity” is a lesser form of protection that applies only in certain, specified circumstances.

Government lawyers other than prosecutors often receive qualified immunity (in the form of protection against liability for money damages) when performing their official duties. However, this immunity does not apply if the plaintiff can show that the government lawyer committed malpractice in a way that violated the plaintiff’s “clearly established” legal or constitutional rights.

This same lower level of immunity applies to prosecutors engaged in investigative or general administrative conduct.

The question whether a prosecutor or government lawyer is entitled to absolute immunity, qualified immunity, or no immunity at all is not an analysis most plaintiffs can make on their own–and you should not try. If you believe a government lawyer engaged in malpractice, consult an experienced legal malpractice attorney immediately for an analysis and evaluation of your legal rights. Delay could cost you the ability to recover for your injuries–and trying to bring the lawsuit yourself (or negotiate for a settlement) could also damage your legal rights.


California law immunizes public employee-attorneys against personal liability for discretionary acts taken within the scope of their employment. In addition, the government may have an obligation to defend and indemnify public counsel for actions they take in the course of employment. (Note: an attorney’s fraud, or bad faith actions, may negate this immunity – consult an attorney promptly if you think your damages resulted from a government attorney acting in bad faith.)

As with federal government counsel, always consult an experienced malpractice attorney promptly if you believe a California state attorney — or any government lawyer — committed malpractice and caused you damages. Don’t attempt to evaluate your legal rights on your own.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.

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