Most criminal defendants are represented by court-appointed lawyers who are paid by the government. This section explains who these attorneys are, who is entitled to receive their services, and the type of services you are entitled to expect from them.
Normally, a defendant who wants a lawyer at government expense must:
Unfortunately, it is impossible to say with certainty who will qualify for a court-appointed lawyer. Each state (or even county) has its own rules about who qualifies as indigent for the purpose of getting a free lawyer. For example, one state defines indigent as a “person who is unable to pay for the services of an attorney, including the costs of investigation, without substantial hardship to the person or the person’s family” (Florida Rule of Criminal Procedure 3.111). Another state with a similar statute provides that, when defining “hardship,” a judge can consider “such factors as income, property owned, outstanding obligations, number and ages of any dependents, and other sources of family income” (Comment to Arizona Rule of Criminal Procedure 6.4).
The seriousness of a charge is also likely to affect a judge’s decision as to whether a defendant is eligible for a free lawyer. For example, a judge may decide that a wage-earner charged with shoplifting has sufficient income and property to hire a private defense attorney, because the cost of such representation is likely to be relatively low. But the judge may decide that the same person is indigent and qualifies for a court-appointed lawyer if the person is charged with a complex and serious case of criminal fraud.
Most states provide for partial indigency. This means that a judge may allow a defendant who exceeds the indigency guidelines but cannot afford the full cost of a private lawyer to receive the services of a court-appointed attorney. (See New Hampshire Statute 604-A:2-d; Florida Rule of Criminal Procedure 3.111.) At the conclusion of the case, the judge will require the defendant to reimburse the state or county for a portion of the costs of representation. Typically, the reimbursement rate will be much lower than the standard hourly fees charged by private defense attorneys in that community.
No. Defendants are not legally required to ask relatives for money to hire an attorney. With rare exceptions, judges determine indigency only according to the income and property of the defendant. Adult defendants who are otherwise indigent remain eligible for court-appointed lawyers even if they have parents or other relatives who could afford to pay for a private attorney.
Perhaps. To protect the limited funds available for court-appointed lawyers, judges sometimes order audits on the accuracy of defendants’ financial eligibility questionnaires. Because these documents must be filled out under oath, defendants who make materially false claims can be prosecuted for perjury. However, such prosecutions are extremely rare. More likely, the consequence will be that the court will revoke the appointment of the lawyer and require the defendant to reimburse the government for legal services already rendered.
Most criminal defendants are legally indigent and can’t afford to pay for an attorney. On the other hand, the state can’t legally prosecute indigents unless it provides them with an attorney. To satisfy this requirement, many states have set up public defender offices. Typically, each local office has a chief public defender (who may be either elected or appointed) and a number of assistant public defenders (“P.D.s”). P.D.s are fully licensed lawyers whose sole job is to represent indigent defendants in criminal cases. Because they typically appear in the same courts on a daily basis, P.D.s can gain a lot of experience in a short period of time.
The P.D. is part of the same criminal justice community that includes the judge, prosecutor, police, and court personnel. As a result, defendants sometimes fear that a P.D. will pull punches in order to stay friendly with judges and prosecutors. However, most private attorneys—not just P.D.s—have regular contacts with judges and prosecutors. All defense attorneys, whether private or government-paid, can maintain cordial relationships with judges and prosecutors while vigorously representing their clients’ interests. Some P.D. offices assign the same P.D. to a defendant’s case from beginning to end. In other P.D. offices, the P.D.s are specialized. One P.D. may handle arraignments, another settlement conferences, another trials, and so forth. Under this method, a single defendant may be represented by a number of P.D.s as a case moves from beginning to end. This second approach can sometimes result in defendants feeling lost in the shuffle, especially if there isn’t close communication between the different P.D.s as the case moves from one phase to the next.
Yes. Panel attorneys are private attorneys who agree to devote part or all of their practice to representing indigent defendants at government expense. Panel attorneys handle most of the criminal cases in states that have not set up public defender offices. When the judge has to appoint an attorney for a defendant, the judge appoints the panel attorney whose turn it is to be in the judge’s courtroom. Usually, the same panel attorney continues to represent a defendant until the case concludes.
Even jurisdictions with public defender offices usually maintain panels of private counsel whom judges appoint to represent those indigent defendants the P.D. is not able to represent, because of what is called a conflict of interest.
A P.D. would not be allowed to represent a defendant because of a conflict of interest in the following situations:
Continued on Part Two
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.