Hanson v. Morton

67 A.3d 437, 2013 WL 2480248, 2013 Del. LEXIS 285
CourtSupreme Court of Delaware
DecidedJune 11, 2013
DocketNo. 557, 2012
StatusPublished
Cited by5 cases

This text of 67 A.3d 437 (Hanson v. Morton) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hanson v. Morton, 67 A.3d 437, 2013 WL 2480248, 2013 Del. LEXIS 285 (Del. 2013).

Opinion

RIDGELY, Justice:

This is a proceeding, under Article IV, Section 11(8) of the Delaware Constitution and Supreme Court Rule 41, on questions of law certified by the Family Court of the State of Delaware and accepted by this Court. In this opinion we address whether in-house counsel appointed by the Family Court to represent indigent parties in dependency and neglect proceedings have qualified immunity from malpractice liability. We also address whether lack of professional malpractice insurance coverage constitutes “good cause” to withdraw from courtappointed service.

Plaintiffs-Below/Appellees Carl and Pamela Morton (“the Mortons”) filed a petition for guardianship of a minor child against Defendant-Below/Appellant Terry Hanson (the “Hansons”).1 Because the Hansons are indigent, the Family Court appointed an attorney to represent them. The attorney, sought to withdraw from representation, because neither he nor his employer carry professional malpractice insurance.

The Family Court seeks guidance on the potential malpractice liability for in-house counsel appointed by a court to represent indigent parties. The Family Court certified to this Court two questions of law as follows:

(1) Is an attorney serving as in house counsel in “corporate practice,” who is appointed by the Family Court to represent an indigent parent in child dependency and neglect proceedings provided with qualified2 immunity from malpractice liability in his or her role as a court-appointed counsel by the Delaware Tort Claims Act (“Tort Claims Act”), or any other similar protection against malpractice liability such as the office of the Child Advocate Statute (“OCA” Immunity Statute), Delaware’s Good Samaritan Statute, or any other applicable law?
(2) Whether or not such court appointed counsel is covered by the Tort Claims Act or other applicable law, does lack of malpractice insurance by in-house counsel in “corporate practice” constitute “good cause” to withdraw from eourtap-pointed representation under Delaware Rule of Professional Conduct 6.2?

We answer the first certified question in the AFFIRMATIVE. In-house counsel appointed by the Family Court have qualified immunity under the Delaware Tort Claims Act. We answer the second certified question in the NEGATIVE. A lack of malpractice insurance is not “good cause” for an attorney to withdraw from court-appointed representation.

Facts and Procedural History

The material facts are not in dispute. The Mortons are the maternal aunt and uncle of a young child. The Mortons filed a Petition in the Family Court for Guardianship of the Child. Responding to the [440]*440Petition were the Child’s Mother and Father (the “Hansons”), who themselves request to be named the Child’s guardians.

The Family Court, finding the Hansons to be indigent, appointed Attorney X to represent them. Attorney X is employed as in-house counsel to a large Delaware corporation (“Corporation A”). To his credit, Attorney X has volunteered to perform pro bono work through Delaware Volunteer Legal Services (“DLVS”) and the Office of the Child Advocate (“OCA”). The appointment in this case was not made through either organization.

In his position as in-house counsel, Attorney X’s only client (apart from his volunteer work) is Corporation A. Very few of the matters in which Attorney X engages take place in Delaware courts. He is engaged in “corporate practice” and not the “private practice” of law as that term is used on the Delaware Supreme Court Registration Statement. Under this designation, Attorney X is not obligated to certify a statement of status of insurance coverage for legal malpractice liability. Neither Attorney X nor Corporation A maintains professional malpractice liability coverage for representation of non-Corporation A clients. Based on the absence of protection against exposure to a potential malpractice claim by Hanson, Attorney X moved to withdraw his representation on the ground that his appointment “poses an undue and unnecessary hardship.” It is undisputed that Attorney X has a strong and laudable history of pro bono work before the Delaware courts, and sought to withdraw due solely to concerns about his professional malpractice insurance coverage.

The Family Court ordered briefing on Attorney X’s motion to withdraw, and appointed amicus curiae to file a brief in opposition to Attorney X’s argument. The Family Court then certified the two questions of law for this Court to consider, which we accepted. During the course of this proceeding we permitted corporate employers E.I. du Pont de Nemours and Company (“DuPont”) and W.L. Gore & Associates, Inc. (“Gore”) to submit a brief as amici curiae in support of Attorney X’s position.

Discussion

Certified Question One: Immunity Under the Tort Claims Act

The first certified question asks whether immunity is granted by applicable law, is under any or all of three statutes: the Office of Child Advocate (“OCA” Immunity Statute), the Good Samaritan Statute, or the Tort Claims Act. The OCA Immunity Statute only applies to attorneys and any other persons “employed by or contracted by or volunteering for the Office of the Child Advocate.”3 It is not disputed that Attorney X was appointed by the Family Court to represent Hanson. Nothing in the record suggests that this representation is in any way connected with the OCA or connected to Attorney X’s past volunteer work for the OCA. The OCA Immunity Statute is inapplicable here.

Delaware’s Good Samaritan Statute only provides immunity in seven narrowly enumerated emergency scenarios, none of which are implicated by the issues presented in this case.4 The Good Samaritan Statute is also inapplicable.

[441]*441We find, however, that the Delaware’s Tort Claims Act applies. One of the purposes of the Tort Claims Act is to “discourage law suits which might create a chilling effect in the ability of public officials or employees to exercise their discretionary authority.”5 The Tort Claims Act provides in pertinent part:

[N]o claim or cause of action shall arise, and no judgment, damages, penalties, costs or other money entitlement shall be awarded or assessed against the State or any public officer or employee ... whether elected or appointed ... where the following elements are present: (1) The act or omission complained of arose out of and in connection with the performance of an official duty ... (2) The act of omission complained of was done in good faith and in the belief that the public interest would best be served thereby; and (3) The act or omission complained of was done without gross or wanton negligence.6

The Tort Claims Act defines “employee” as used in the statute as:

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Cite This Page — Counsel Stack

Bluebook (online)
67 A.3d 437, 2013 WL 2480248, 2013 Del. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hanson-v-morton-del-2013.