*

 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is

therefore submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

May 3, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL J. NELSON,

Plaintiff-Appellant,

v. No. 05-3156

THE BOEING COMPANY,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. NO. 03-CV-1280-MLB)

Submitted on the briefs. *

Lawrence W. Williamson, Jr. of Shores Williamson and Ohaebosim, LLC,

Wichita, Kansas for Plaintiff-Appellant.

Timothy B. Mustaine and Jeff P. DeGraffenreid of Foulston Siefkin LLP,

Wichita, Kansas for Defendant-Appellee.

Before McCONNELL , ANDERSON , and TYMKOVICH , Circuit Judges.

McCONNELL , Circuit Judge.
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The general rule in civil cases is that the ineffective assistance of counsel is

not a basis for appeal or retrial. MacCuish v. United States , 844 F.2d 733, 735

(10th Cir. 1988). If a client’s chosen counsel performs below professionally

acceptable standards, with adverse effects on the client’s case, the client’s remedy

is not reversal, but rather a legal malpractice lawsuit against the deficient

attorney. Id. at 735-36; Link v. Wabash R.R. Co. , 370 U.S. 626, 634 n.10 (1962).

Recognizing this rule, Plaintiff-Appellant Michael J. Nelson asks this Court to

craft an exception for Title VII plaintiffs based on the language of 42 U.S.C. §

2000e-5(f)(1). He further claims that because his trial counsel was ineffective,

we should reverse the district court’s grant of summary judgment in favor of the

Defendant-Appellee, The Boeing Company (“Boeing”). We conclude that Title

VII does not create a statutory right to the effective assistance of counsel, and

AFFIRM the district court’s decision.

I. Background

Mr. Nelson, an engineer of Iranian descent, was employed by Boeing from

1996 until he was laid off in 2002 as part of a reduction in force. He filed this

lawsuit in 2003, asserting that Boeing discriminated against him on the basis of

his race, national origin, sex, and disability, and in retaliation for previous

complaints about harassment, in violation of Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, the Age Discrimination in
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Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and similar Kansas statutes. 

After filing this lawsuit, Mr. Nelson filed a motion to proceed in forma pauperis

and for appointment of counsel. The district court granted Mr. Nelson’s motion

to proceed in forma pauperis but denied his request for appointed counsel. 

Mr. Nelson ultimately retained counsel and was represented throughout the

proceedings before the district court. However, Mr. Nelson claims that his

attorney never propounded discovery on Boeing, even though Boeing served

discovery requests on Mr. Nelson. On October 22, 2004, Boeing filed a motion

for summary judgment. Mr. Nelson’s counsel filed a brief response citing few

cases. The district court entered summary judgment in favor of Boeing on March

1, 2005. Represented by new counsel, Mr. Nelson filed a timely appeal, claiming

that he is entitled to reversal because his counsel rendered ineffective assistance.

II. Discussion

Although every client who engages a lawyer has a right of effective

assistance of counsel in the sense that legal services falling below acceptable

professional standards may give rise to tort liability, the term “effective assistance

of counsel” is generally reserved for contexts in which the lawyer’s deficient

performance provides a basis for reversal on appeal or collateral review. In

criminal cases, the Supreme Court has found that right implicit in the Sixth

Amendment’s guarantee that “[i]n all criminal prosecutions, the accused shall
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enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S.

Const. amend. VI; see Strickland v. Washington , 466 U.S. 668, 685-86 (1984). In

civil cases, the right can arise from the Due Process Clause of the Fifth

Amendment, but the only context in which courts have recognized a constitutional

right to effective assistance of counsel in civil litigation is in immigration cases. 

See Ponce-Leiva v. Ashcroft , 331 F.3d 369, 381-82 (3d Cir. 2003) (“[A]liens, like

criminal defendants and unlike the parties in normal civil disputes, may obtain

relief from the ineffective assistance of counsel”); Mejia Rodriguez v. Reno , 178

F.3d 1139, 1146 (11th Cir. 1999) (noting that aliens have a right to effective

assistance of counsel under the Due Process Clause because deportation

proceedings implicate an alien’s liberty interest). Mr. Nelson does not argue that

the Due Process Clause guarantees Title VII plaintiffs the right to the effective

assistance of counsel, but instead contends that such a right is embodied in Title

VII itself. We disagree.

Title VII grants litigants a statutory right to request appointed counsel at

court expense. The statute provides, in pertinent part: 

Upon application by the complainant and in such circumstances as

the court may deem just, the court may appoint an attorney for such

complainant and may authorize the commencement of the action

without the payment of fees, costs, or security.

42 U.S.C. § 2000e-5(f)(1). Mr. Nelson claims that this statutory right to request

appointment of counsel creates a corresponding statutory right to the effective
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assistance of counsel analogous to that arising from the Sixth Amendment. Citing

McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970), he argues that “the right

to counsel is the right to the effective assistance of counsel.” 

Mr. Nelson’s argument, however, misses important differences between

Title VII and the Sixth Amendment. The right to counsel, and to the effective

assistance of counsel, is critical in criminal cases because of the grave and

irremediable consequences of a criminal conviction. See Powell v. Alabama , 287

U.S. 45, 69 (1932) (noting that without effective legal representation, a defendant

“faces the danger of conviction”). Similar concerns, based on the “exceptional

life-altering character of immigration proceedings,” explain the extension of the

right to the immigration context. Ponce-Leiva , 331 F.3d at 381; see Bridges v.

Wixon , 326 U.S. 135, 154 (1945). 

By contrast, the Supreme Court has repeatedly held civil litigants

“accountable for the acts and omissions of their chosen counsel,” Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380, 397 (1993), and has

declined to “visit[] the sins of [a] plaintiff’s lawyer upon the defendant,” Link ,

370 U.S. at 634 n.10. It does not disparage the importance of rights protected by

Title VII to recognize that the consequences of bad lawyering in a Title VII case

are less grave than wrongful incarceration or deportation. Moreover, a Title VII

plaintiff who loses because his attorney’s performance was deficient can file a
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legal malpractice lawsuit to recoup the damages he would have been awarded in

the Title VII case, including damages to compensate him for the loss of equitable

relief such as reinstatement. See Bell v. Eastman Kodak Co. , 214 F.3d 798, 802

(7th Cir. 2000); Sanchez v. U. S. Postal Serv. , 785 F.2d 1236, 1237 (5th Cir.

1986) (per curiam). A legal malpractice award, however, cannot release a

convicted defendant from jail or absolve him of the stigma of a criminal

conviction, nor can it enable an alien to remain in the United States. These are

more than just differences in degree.

Mr. Nelson argues, in effect, that Title VII’s provision for appointed

counsel must logically entail a right to “effective assistance” of counsel. But this

argument would swallow the rule that parties are responsible for the acts of their

attorneys. Under 28 U.S.C. § 1915(e)(1), district courts have general authority to

appoint counsel for indigent litigants; yet no one would argue this means that

deficient legal representation should be a basis for reversal on appeal in all civil

cases. To be sure, the right to request counsel under Title VII extends to a

broader class of litigants. Unlike § 1915(e)(1), § 2000e-5(f)(1) is not limited to

those “unable to afford counsel.” But Congress’s decision to make appointed

counsel available, in the discretion of the court, to a wider class of litigants does

not imply that Congress intended to abrogate the long-standing principle of not

recognizing a right to the effective assistance of counsel in civil cases. If
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Congress had intended to extend an equivalent of the Sixth Amendment guarantee

of effective assistance of counsel to Title VII cases, upending the ordinary rule in

civil cases, Congress would have done so in far more explicit terms. 

The inclusion of a specific right to request counsel does evince “Congress’s

‘special . . . concern with legal representation in Title VII actions.’” Castner v.

Colo. Springs Cablevision , 979 F.2d 1417, 1421 (10th Cir. 1992) (quoting Jenkins

v. Chem. Bank , 721 F.3d 876, 879 (2d Cir. 1983)). However, Congress was not so

concerned as to create an actual right to appointed counsel in Title VII cases. See

id. at 1420 (“A plaintiff asserting an employment discrimination claim has no

constitutional or statutory right to appointed counsel.”). The Sixth Amendment

guarantees the right to counsel in criminal cases and withholds from courts “the

power and authority to deprive an accused of his life or liberty unless he has or

waives the assistance of counsel.” Johnson v. Zerbst , 304 U.S. 458, 463 (1938). 

Title VII, by contrast, does not create a right to appointed counsel, even for the

indigent, but solely the right to request it. Castner, 979 F.2d at 1420. District

courts have broad discretion to decide whether to appoint counsel or to require a

Title VII litigant to retain private counsel or proceed pro se . Id. By leaving the

appointment of counsel to the discretion of the court, Congress contemplated that

some plaintiffs would have to represent themselves. It is hard to imagine that
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Congress intended to create a right to effective assistance of counsel when it

understood that many Title VII plaintiffs would have no counsel at all. 

As noted above, this holding does not leave a Title VII plaintiff without

recourse. If Mr. Nelson’s attorney mishandled his case, he may have a remedy

against his attorney in the form of a legal malpractice lawsuit. Mr. Nelson’s

remedy, however, is not against Boeing and cannot take the form of reversing the

district court’s grant of summary judgment.

For the foregoing reasons, we AFFIRM the decision of the district court.