STATEMENT OF THE CASE
Plaintiff-appellant, Wayne A. White (White), appeals, pro se, a judgment entered by the Monroe Superior Court III dismissing his legal malpractice action filed against defendant-appellee, Steven Galvin (Galvin).
We reverse.
STATEMENT OF THE FACTS
On August 6, 1987, White filed a legal malpractice action against Galvin alleging that Galvin had been appointed by the trial court and represented him in a criminal case in 1985. He claimed that because of Galvin's gross negligence he was convicted and suffered damages in the sum of $400,-000.00.
Galvin filed an Ind. Rules of Procedure, Trial Rule 12(B)(6) motion to dismiss supported by affidavits in which he claimed that he had been sued individually in his capacity as a court appointed deputy public defender, but notice had not been given to the Board of County Commissioners of Monroe County as required by IND. CODE 34-4-16.5-7 of the Tort Claims Act. Failure to give notice was not denied by White, and on that basis, therefore, the trial court sustained the motion and White's malpractice case was dismissed.
White raises three issues on appeal. Because of our decision on Issue II, however, the other two issues are no longer material and we shall not address them. In Issue II White argues that a public defender is not a public employee as defined in the Tort Claims Act, and therefore, the procedures and preconditions of notice set forth therein are inapplicable to a suit against a public defender individually. The concept posed in this issue has broad implications beyond the mere matter of notice. If a public defender is not a public employee under the Tort Claims Act, then a serious question is posed as to whether the public body would be vicariously liable for legal malpractice committed by him. Further questions are posed as to whether the public body would be required to defend or pay any judgment *803rendered where the public defender was sued alone without joining the public body. See IND. CODE 84-4-16.5-5. These latter matters are not before us and we make no decision on them. We merely point out the ramifications of the problems before us.
The question here was presented in a T.R. 12(B)(6) motion accompanied by affidavits. Therefore, it shall be treated as a motion for summary judgment. T.R. 12(B)(8). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Rules of Procedure, Trial Rule 56(C). Here the question presented is purely a matter of law.
DISCUSSION AND DECISION
IND. CODE 34-4-16.5-7 requires that any claim in tort against a political subdivision is barred unless notice of the claim is filed with the governing body within 180 days after the loss occurs. When the governmental employee is sued alone, failing to give the required notice is also fatal. Poole v. Clase (1985), Ind., 476 N.E.2d 828.
The question presented here is whether a public defender is an employee or public employee within the meaning of the Tort Claims Act. IND. CODE 34-4-16.5-2(b) states:
'Employee" and "public employee" means a person presently or formerly acting on behalf of a governmental entity whether temporarily or permanently or with or without compensation, including members of boards, committees, commissions, authorities and other instru-mentalities or governmental entities, and elected public officials. However, the term does not include:
(1) an independent contractor; or
(2) an agent or employee of an independent contractor;
except an attorney who performs service-es for the state or county department of public welfare as an independent contractor. (Our emphasis.)
White relies totally upon Polk County v. Dodson (1981), 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509. In claiming that he was an employee of Monroe County, Galvin cites only IND. CODE 34-4-16.5-2(b). Our research has not revealed any Indiana cases which are helpful. We are of the opinion that the rationale of Polk County is persuasive and should be followed here. We will, therefore, analyze it in careful detail.
In that case Russell R. Dodson (Dodson) brought an action in federal court under 42 TU.98.C. See. 1983 against the Polk County, Towa Public Defender, Martha Shepard (Shepard). The public defender's office had been created and fully funded by the county. Full-time salaried lawyers handled 2,500 cases per year for the office which was administered by a salaried lawyer director. To establish that the public defender acted under color of state law, Dodson relied upon the fact that Shepard was employed by the county, paid by the county, and was under the direction of the county which had established procedures which Shepard was bound to follow. The court first noted that a person was acting under the color of state law only when acting under power "... possessed by virtue of state law and made possible only because the wrongdoer is cloaked with the authority of state law." 454 U.S. at 317-18, 102 S.Ct. at 449.
In its analysis, paraphrased by us, the court continued, stating that representation of an indigent entails functions and obligations in no way dependent upon state authority. The public defender is the accused's lawyer which is, except for the source of payment, a relationship that exists between any lawyer and client. That is, he is a personal counselor and advocate. The fact that a lawyer is an officer of the court does not make him an actor under color of state law, but to the contrary, the defense lawyer is an adversary to the state's interest, advancing only the individual interests of his client. Essentially, therefore, it is a private function traditionally filled by retained counsel for which the authority of the state is not needed. Id. at 318-19, 102 S.Ct. at 449-50.
The court rejected the argument that because the public defender was paid by a governmental unit, he was subject to the *804supervision of the state and its representatives whose interests were not related to the indigent defendant. Although administrative decisions may influence the way a public defender works, his case load, and the quality of his library, he is not a servant of an administrative superior. Under the cannons of ethics, a lawyer shall not permit a person who recommends, employs or pays him to regulate or direct his professional judgment. Even under constitutional mandates a defense lawyer is free from state control.
In a concurring opinion Chief Justice Burger, noting that the role of government in providing defense counsel is very limit ed, emphasized that independence from governmental control in the performance of the assigned task is the crucial element.
The court concluded that a public defender does not act under the color of state law and dismissed Dodson's 1983 action against Shepard.1
As shown above the definition section of the Tort Claims Act, IND. CODE 34-4-16.-5-2(b) defines an employee as a person acting on behalf of a governmental entity. We see little difference between that definition and acting under color of state law. As in Polk County, Galvin was hired and paid by the public defender's office created and funded by Monroe County. The professional acts for which he was sued did not concern any interest of Monroe County, nor were they on the County's behalf. To the contrary, as a defense lawyer for White, Galvin was an adversary to the governmental body. As explained in Polk County he was not professionally in any way under the direction and control of any governmental agency. Control, or the right to control, is a precondition necessary to establish vicarious liability in tort. He performed his duties as White's lawyer, not as the state's or Monroe County's lawyer. His professional status was exactly the same as any attorney-client relationship where the lawyer is privately retained. The only connection Monroe County had was in payment. It did not even control the appointment, for the court performed that function. Therefore, for the purposes of the Tort Claims Act, Galvin was not an employee of Monroe County, and notice to that body was not a precondition to bringing suit against Galvin personally.
For these reasons this cause is reversed and the trial court is ordered to overrule the motion to dismiss.
Judgment reversed.
RATLIFF, C.J., concurs. ROBERTSON, J. dissents with opinion.. In Polk County a large number of cases are cited by the court in its analysis of the problem, both those supporting the court's view and those opposing it. Further, Justice Blackman filed a lengthy dissenting opinion. No attempt will be made by us to either cite or analyze those authorities, but the reader is directed to that case if further inquiry is desired.