dissenting.
The questions presented by those cases raising issues of immunity-from-liability, whether sovereign, official or judicial, are, in my view, far from well-settled. This Court has, in the past, striven to categorize public servants in order to determine what, if any, immunity inheres in their offices.1 The legislature, too, has engaged in classification of employ*491ees as an approach to the immunity problem.2 Most recently, in DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978), we announced we would abandon a classification analysis “in favor of rules which, though requiring case-by-case determinations, more often produce equitable results.” Id., 481 Pa. at 547, 393 A.2d at 296.3
Hitherto we have not been called upon to determine whether the public defender is a “high public official”, “low public official,” or a public official at all. The majority today determines that public defenders are not public officials. Because I consider it unnecessary in view of that portion of DuBree, which dealt with individual, named defendants, I would express no view concerning the precise status of the office of public defender. In light of our expressed disfavor with analysis by classification, and in view of the fact that the majority’s decision in the instant case is founded, ultimately, upon considerations of public policy, my analysis of the policy issues leads me to a different result.
It is appropriate initially to note that I consider the majority correctly chose to base its decision upon considerations of public policy. In indicating that the immunization of public defenders is pregnant with “troublesome equal protection problems,” however, I believe the majority needlessly clouds the analysis (Majority Opinion, ante, at 740). The equal protection clause does not compel the result reached by the court in the instant case.
It is, of course, true that if public defenders are immune from civil liability, a cause of action available to persons sufficiently affluent to secure private representation will be *492foreclosed to persons not so happily circumstanced. But as the younger Mr. Justice Harlan accurately opined: '
“The Equal Protection Clause does not impose on the States ‘an affirmative duty to lift the handicaps flowing from differences in economic circumstances.’ To so construe it would be to read into the Constitution a philosophy of leveling that would be foreign to many of our basic concepts of the proper relations between government and society. The State may have a moral obligation to eliminate the evils of poverty, but it is not required by the Equal Protection Clause to give to some whatever others can afford.” Douglas v. California, 372 U.S. 353, 362, 83 S.Ct. 814, 819, 9 L.Ed.2d 811 (1963). (Harlan, J., dissenting) (footnote omitted.)
Mr. Justice Powell, speaking for the court, noted in San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), that “at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.” Id., 411 U.S. at 24, 93 S.Ct. at 1291.4
We are presented with no authority for the proposition that unimpaired access to state courts for all purposes5 is a constitutionally guaranteed right. Consequently, I am not persuaded that state action, or a state policy, which results in the creation of two cognizable classes of persons, and in the furtherance of a legitimate state interest forecloses to one of those classes access to the state courts to advance a private claim, is violative of the equal protection clause. See, Cohen v. Beneficial Loan Corporation, 337 U.S. 541, 552, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The majority does not advance, nor in my view could they, any other constitutional *493provision as requiring the result reached today; the proper basis for decision in the instant case, then, is public policy.
Two essentially separate questions are posed by the majority: first, whether there is any compelling justification for treating the public defender in a different fashion from privately retained counsel; and second, whether sound considerations of public policy warrant immunizing the public defender from civil liability. Both of these questions the majority answers in the negative. I would answer both affirmatively.
I find one compelling justification for treating the public defender in a different fashion from privately retained counsel which arises from the unique nature of the relationship between the public defender and his client. It is, perhaps, helpful here to recall that legal malpractice originated as a tort ex contractu, with the claim arising when counsel was in breach of the contract, express or implied, with his client. Early cases often held that an action against an attorney for negligent representation must sound in contract. See, e. g., Goodman & Mitchell v. Walker, 30 Ala. 482 (1857).6 The contract origins of legal malpractice remained apparent in the lingering requirement that to bring the action one must have been in privity with the attorney. Buckley v. Gray, 110 Cal. 339, 42 P. 900 (1895).7 Indeed, as courts endeavored to expand the scope of potential liability for negligent representation, they often did so in contract language.
“We conclude that intended beneficiaries of a will who lose their testamentary rights because of failure of the attorney who drew the will to properly fulfill his obligations under his contract . . . may recover as third-party beneficiaries.” Lucas v. Hamm, 56 Cal.2d 583, 591, *49415 Cal.Rptr. 821, 825, 364 P.2d 685, 689 (1961), cert. denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962).
Even now the action may be brought as one sounding in either tort or contract. See, e. g., Barrett v. Burt, 250 F.Supp. 904 (S.D.Iowa 1966); Goodstein v. Weinberg, 219 Va. 105, 245 S.E.2d 140 (1978).
“Although the liability of an attorney on the ground of negligence is ordinarily enforced by an action on the case for negligence in the discharge of his professional duties, the liability in reality rests on the attorney’s employment by the client and is contractual in its nature.” 7 C.J.S. Attorney and Client § 140, p. 978, quoted with emphasis in Chicago Title Insurance Company v. Holt, 36 N.C.App. 284, 244 S.E.2d 177 (1978).
It seems to me, then, that one important justification for dealing with public defenders differently from privately retained counsel is immediately evident: the public defender, unlike his private counterpart, is, in a real sense, not free to contract with his client. The case of any person, no matter how unpopular or offensive he, his opinions or his cause may be, if assigned to the public defender must, and we would not argue otherwise — should, be advocated as strenuously as it can be. But in contrast to the private attorney who, notwithstanding his status as an officer of the court, and his obligations to the legal profession, is nevertheless an entrepreneur, the public defender is discharging society’s appreciated obligation to provide competent legal counsel to indigent persons. He cannot assay the likelihood that the frustration of a client’s cause may lead to recriminations and, ultimately, litigation; he cannot weigh the threat to his own energies and assets posed by the likelihood of suit; he cannot analyze the litigious propensities of his client; he cannot even consider the merits of his client’s case, and if these assessments are not favorable, tell him to find another lawyer.
Apt analogy may be found in the English system. There, although solicitors may be sued for malpractice, barristers may not. The immunity of barristers from suit was general*495ly considered to be founded in counsel’s inability to contract with his client'. Indeed, “counsel usually perform their duties without having a legal title to remuneration,” and barristers could not sue for their fees. Veitch v. Russell, 3 Q.B. 928, 936 (1842). Solicitors, on the other hand, were not similarly inconvenienced.
The inability to contract rationale was abandoned in Rondel v. Worsley, 1 A.C. 191 (1969), but barristers’ immunity was retained, now based upon considerations of public policy. Five opinions were filed expressing different views of which tenets of public policy best support barristers’ immunity, but the court generally agreed they were three: “(1) The need that counsel should be able to conduct litigation fearlessly and independently; (2) the duty of a barrister to accept any client, however refractory, who sought his services; and (3) the public’s interest in avoiding the retrying of litigation.” Kaus and Matten, The Misguiding Hand of Counsel — Reflections on “Criminal Malpractice,” 21 U.C.L.A. L.Rev. 1191, 1192, n.5.
I find the evolution of English thought on the instant question persuasive. The inability to contract which encumbers barristers and, in a sense, public defenders, while insufficient as a justification for immunity from liability, is nevertheless enough to warrant their classification distinct from their counterparts who are free to contract with a client or not, as they may choose.8 But immunity from civil liability, to be acceptable, must rest on weightier considerations of policy.
The federal cases are inapposite. Nearly all arise under 42 U.S.C. § 1983, and the majority is unquestionably correct that the law emerging from those cases cannot control the *496instant case. But that is not to say that the policy considerations which have emerged from those cases may not, nevertheless, be helpful to us. There is, to be sure a division of opinion among the federal courts which have considered the question; some have held that public defenders do not act “under color of state law” for § 1983 purposes,9 others have held that they do. But most of those courts have expressed some opinion, even if in dictum, concerning the issues of public policy presented by the immunity question.
In Minns v. Paul, 542 F.2d 899 (4th Cir. 1976), the Fourth Circuit Court sought to “identify the policy reasons which support a rule of absolute immunity. Basically there are two: (a) the need to recruit and hold able lawyers to represent indigents — both full and part-time public defenders, as well as private practitioners appointed by courts to represent individual defendants or litigants, and (b) the need to encourage counsel in the full exercise of professionalism, i. e., the unfettered discretion, in the light of their training and experience, to decline to press the frivolous, to assign priorities between indigent litigants, and to make strategic decisions with regard to a single litigant as to how best his interests may be advanced.” Id., 542 F.2d at 901.
Noting that “[t]he latter consideration is particularly important,” the court observed that “the court-appointed attorney has virtually no control over which clients he will accept or reject. Moreover, since the state rather than the indigent himself is paying the attorney, the client has no economic incentive for eschewing frivolous claims.” Id., 542 F.2d at 901-02. See, also, John v. Hurt, 489 F.2d 786, 788 (7th Cir., 1973).
In Brown v. Joseph, 463 F.2d 1046 (3rd Cir. 1972), the Third Circuit Court opined:
“There are other consideration of public policy. First, there is the desirability of encouraging able men and women to assume Public Defender roles. To subject this *497defense counsel to liability, while cloaking with immunity his counterpart across the counsel table, the clerk of the court recording the minutes, the presiding judge, and counsel of a co-defendant, privately retained or court-appointed, would be to discourage recruitment of sensitive and thoughtful members of the bar.
* * * * * *
“. . . To deny immunity to the Public Defender and expose him to this potential liability would not only discourage recruitment, but could conceivably encourage many experienced public defenders to reconsider present positions.” Id. at 1049.
Additionally, considerations of judicial economy militate against the amenability of the public defender to civil liability.
The standard in Pennsylvania for assaying the effectiveness of counsel’s representation of a criminally accused approximates mere negligence, i. e., “that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 421 Pa. 599, 235 A.2d 349 (1967). In no small number of cases we have determined counsel not to have met even this less than stringent test. Arguably such a determination by this court will be sufficient to get beyond the pleadings in any subsequent civil suit, “and defense of even frivolous . . . suits would consume the energy of state-subsidized attorneys which should be devoted to representing the interests of other indigent clients.” Minns v. Paul, supra, at 902. Questions concerning the conduct of counsel during the rigors of defending a criminally accused, questions of sufficient intricacy to divide this court, will be relitigated in the civil courts. The scenario begs for inconsistent results.10
*498The Brown v. Joseph court “perceive[d] no valid reason to extend . ... immunity to state and federal prosecutors and judges and to withhold it from state-appointed and state-subsidized defenders.” Id., at 1048. “Counsel for the accused is an essential component of the administration of criminal justice. A court properly constituted to hear a criminal case must be viewed as a tri-partite entity consisting of the judge (and jury, where appropriate), counsel for the prosecution and counsel for the accused.” American Bar Association Project on Standards for Criminal Justice, The Defense Function, § 1.1(a) (Approved Draft, 1971).
One court, passing upon a related question, felt that “[t]he key to the immunity ... is that the acts, alleged to have been wrongful, were committed by the officer in the performance of an integral part of the judicial process.” Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965). One commentator has observed that “[¡Judicial immunity has been extended to cover virtually all persons acting in judicial proceedings. . . .” Nakles, Criminal Defense Lawyer: The Case for Absolute Immunity from Civil Liability, 81 Dickinson L.Rev. 229 (1977). In addition to judges and prosecutors, clerks of court,11 parole boards,12 probation officers,13 and court reporters,14 have been cloaked with at least a qualified immunity.
I cannot say that a state-subsidized defense attorney who “enjoys continuing employment by a unit of state government, is often furnished an office as well as compensation, and appears to his client, as well as others, as a person cloaked with the authority of the state” 15 is less an integral *499part of the “tri-partite entity” of our system than is a court reporter.
“ ‘. . . Whenever, therefore, the state confers judicial powers upon individuals, it confers them with full immunity from private suits. In effect, the state says to the officer that these duties are confined to his judgment; that he is to exercise his judgment fully, freely and without favor and that he may exercise it without fear; that the duties concern individuals, but they concern more especially the welfare of the state and the peace and happiness of society; that, if he shall fail in the faithful discharge of them, he shall be called to account as a criminal, but that, in order that he may not be annoyed, disturbed and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to call in question his official action in a suit for damages’: Cooley on Torts (second edition) par. 409.” Quoted in Commonwealth v. Cauffiel, 79 Pa.Super. 596 (1922).
Our constitutionally mandated obligation to provide legal counsel to indigents is satisfied by the establishment of public defenders’ offices. Society’s interest that that counsel be effective is enforceable through disciplinary proceedings established by the legal profession. The interest of the indigent defendant that his representation be effective may be vindicated through direct and collateral state and federal appellate review and the granting, where warranted, of appropriate relief. Neither the Constitution, our case law nor public policy requires more. On the contrary, in my view public policy requires the extension of judicial immunity from civil liability to public defenders.
I dissent.
With the exception of the agreement expressed about the views set forth in DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293 (1978), EAGEN, Chief Justice, joins in this opinion.
. See, e. g., Matson v. Margiotti, 371 Pa. 188, 88 A.2d 892 (1952); Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968).
. “Political Subdivision Tort Claims Act.” Act of November 26, 1978, P.L. 1399, No. 330, § 101 et seq., 53 Pa.C.S.A. §§ 5311.101 et seq. (1979-80 Supp.)
. While in DuBree, I considered that permitting a suit against the Commonwealth represented a judicial usurpation of the legislative function, I agreed with the Court that the propriety of a suit against an individual named defendant is not amenable to a simple analysis by classification.
. See, also, McGowan v. Maryland, 366 U.S. 420, 425-26, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961): “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.”
. Compare, Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and Cohen v. Beneficial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
. Although Alabama no longer insists upon this requirement, Goodman & Mitchell is historically informative. See e. g. Rhine v. Haley, 238 Ark. 72, 378 S.W.2d 655 (1964).
. The privity requirement is no longer the law in California, see Lucas v. Hamm,infra, but is illustrative of the contractual basis of the tort of legal malpractice.
. The notion that persons with certain necessary skills may merit some special consideration when placed in circumstances where their skills are required and they are without option to exercise or refuse to exercise those skills, is not totally alien. Witness, for example, so-called “good Samaritan” legislation which immunizes physicians and certain others from liability to which they would be exposed were they at liberty to decline treatment of the patient. 35 P.S. § 6805; 12 P.S. § 1641 (See 42 Pa.C.S.A. § 8331(a)).
. See, e. g., Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977); Espinoza v. Rogers, 470 F.2d 1174 (10th Cir. 1972); United States ex rel. Wood v. Blacker, 335 F.Supp. 43 (D.N.J.1971).
. Respect for the judicial process, much less understanding of it, will be hard won by a system which permits (a) a determination that a defendant was denied his Sixth Amendment right to effective counsel, (b) warrants thereby a subsequent new trial, (c) is subsequently acquitted or has the charges against him nolle pressed, but (d) was not civilly wronged.
. E. g., Davis v. McAteer, 431 F.2d 81 (8th Cir. 1970).
. E. g., Silver v. Dickson, 403 F.2d 642 (9th Cir. 1968), cert. den. 394 U.S. 990, 89 S.Ct. 1477, 22 L.Ed.2d 765 (1969).
. E. g. Friedman v. Younger, 282 F.Supp. 710 (C.D.Cal.1968).
. E. g., Brown v. Charles, 309 F.Supp. 817 (E.D.Wis.1970).
. John v. Hurt, 489 F.2d 786, 787 (7th Cir. 1973).