dissenting.
Just two months ago a majority of this Court decided that an attorney appointed to represent an indigent defendant in a federal criminal case is immune as a matter of federal law from all malpractice liability. Ferri v. Ackerman, 483 Pa. 90, 394 A.2d 553 (1978), cert. granted. I dissented from that decision on two grounds: (1) federal immunity does not insulate appointed counsel from his' client’s malpractice suits; and (2) that a decision rendering a federal appointed counsel immune as a federal official could result in discrimination against indigent defendants. See Ferri v. Ackerman, supra (Roberts, J., dissenting). The majority’s decision today holds appointed counsel in a federal criminal case immune from liability for allegedly losing a written agreement awarding his client complete protection from prosecution. I must again dissent.
It is conceivable that the majority, although it does not expressly discuss the question, would extend immunity to all federal defense counsel, appointed or not, thereby equalizing the effects upon indigent and non-indigent defendants.1 *333But this possible extension would not correct the majority’s error in applying federal immunity to appointed defense counsel in the first place.
At the very core of the majority’s reasoning is the view that the United States Supreme Court in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), impliedly extended absolute immunity to “all participants” in a federal criminal trial. The majority quotes references in Butz to “the various participants in judge-supervised trials” and to “advocates” in defining federal immunity. Such references do not, however, provide support for the view that an appointed defense attorney needs absolute protection from his own client’s malpractice suits in order adequately to defend that client.
An appointed federal defense attorney does not serve as a federal official. His duties stem directly and solely from his professional obligations to act vigorously and capably in the defense of his client and not from any governmental responsibility. See Thomas v. Howard, 455 F.2d 228, 229 (3d Cir. 1972). Federal cases holding that state appointed defense counsel do not act under color of state law, e. g., Barnes v. Dorsey, 480 F.2d 1057, 1060-61 (8th Cir. 1973); Thomas v. Howard, supra, clearly instruct that federal appointed defense counsel do not serve a federal governmental role. In the absence of any legitimate official status the absolute immunity which the majority bestows is entirely without justification, for the rationale of immunity is to encourage those with some official governmental role to make discretionary judgments without fear of reprisal litigation. See Scheuer v. Rhodes, 416 U.S. 232, 240, 94 S.Ct. 1683, 1688, 40 L.Ed.2d 90 (1974). This theory forms the basis of decisions granting immunity not only to judges, but to prosecutors and grand jurors as well. As the United States Supreme Court observed in Imbler v. Pactman, 424 U.S. 409, 423 n.20, 96 S.Ct. 984, 991 n.20, 47 L.Ed.2d 128 (1976):
“It is the functional comparability of their judgments to those of the judge that has resulted in both grand jurors *334and prosecutors being referred to as ‘quasi-judicial’ officers, and their immunities being termed ‘quasi-judicial’ as well.”
The class of beneficiaries of such immunity is thus narrowly circumscribed.
It is of course also true that defense counsel and witnesses receive protection from defamation actions for their statements in connection with a judicial proceeding. This privilege, as Dean Prosser points out, “covers anything that may be said in relation to the matter at issue, whether it be in the pleadings, in affidavits, or in open court.” W. Prosser, Handbook of the Law of Torts § 114, pp. 777-78 (4th ed. 1971). This traditional common law immunity explains fully the United States Supreme Court’s reference in Butz to the immunity of advocates and witnesses. Nothing in Butz suggests that the Court was impliedly acknowledging either under federal or common law that an appointed defense attorney is immune from suits brought by his own client for alleged acts of malpractice.2
The majority’s analysis thus rests upon the mistaken assumption that the role of an appointed defense counsel is essentially like that of a judge, prosecutor, and grand juror and upon the erroneous view that the Supreme Court in referring to the immunity of advocates and witnesses was *335considering more than the traditional privilege from defamation actions. I cannot join in the majority’s analysis.
LARSEN, J., joins in this dissenting opinion.. If, however, the majority does not envision such an equalization, the application of federal immunity to appointed defense counsel will have the effect of lowering the standard of care of such counsel and denying to indigent defendants a remedy apparently available to non-indigent defendants. As in Ferri v. Ackerman, supra, the majority chooses not to consider this consequence.
. The Court in Butz stated:
“Advocates are restrained not only by their professional obligations, but by the knowledge that their assertions will be contested by their adversaries in open court. . . . Witnesses are, of course, subject to the rigors of cross-examination and the penalty of perjury. Because these features of the judicial process tend to enhance the reliability of information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error.”
Id., - U.S. at-, 98 S.Ct. at 2914. The Court’s reference to factors enhancing the reliability of the statements of counsel and witnesses in Open court reveals clearly that the Court’s discussion of the immunity of these participants encompassed only the traditional immunity from defamation actions. That such a common law immunity exists to facilitate the judicial factfinding role provides no basis for the absolute immunity recognized by the majority in this case.