Nieves v. Office of the Public Defender
Our fundamental objectives are to serve the public by protecting the integrity, competence, and vitality of the Bar; help to assure citizens access to justice and adequate remedies, and to assist the Courts in their mission to guarantee that justice is done. This court granted certification to answer two questions: Are legal malpractice claims exempt from the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and
 Is plaintiff’s “loss of liberty” damages claim subject to the verbal threshold of the TCA?*
The answer to the first question must be NO. Lawyers such as full and part time Public Defenders serve the State by whom they are employed. They help to vindicate the Constitutional obligations of due process, equal protection, and fair trials. But such public servants – full or part time – may falter and thereby give rise to professional liability claims.
Competent criminal defense lawyers should not be deterred from public service by the prospect of ruinous awards and defense costs. Without the defense and indemnification assured by the Tort Claims Act the interests of both PDs and those with just claims against them are ill-served. The Tort Claims Act blocks frivolous claims via its verbal threshold (59:9-2), limits certain damages [e.g. grants credits for collateral sources, pre-judgment interest. The Act bars civil punitive damage awards against the State and any other public entity. But compensatory damages are not capped. Costs of defense are beyond the capacity of staff PDs and of the typically young, free-lance pool attorneys.