Using a Court Appointed Criminal Defense Lawyer

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.

How do I qualify for free legal services?

Normally, a defendant who wants a lawyer at government expense must:

  • ask the court to appoint a lawyer, and
  • provide information under oath (in a financial eligibility questionnaire or in oral responses to questions posed by the judge) about his or her income and resources.

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.

If I make just a little too much money to be considered indigent, can I obtain a court-appointed lawyer at a reduced fee?

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.

Some of my close relatives are pretty wealthy. Will a judge consider that when deciding whether I’m eligible for free legal services?

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.

Will anyone check up on the information I provide in my application for a free lawyer?

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.

Where I live, the court-appointed attorney is called a public defender. What exactly is a public defender?

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.

Availability of Free Legal Assistance by Nonprofit Groups

Indigent persons can sometimes get free legal assistance in civil cases from various civil rights organizations. For example, an indigent person who wants to sue a city for stopping her from handing out political leaflets might seek help from the ACLU. However, such free legal assistance is rarely available to criminal defendants. In part because a system of government-appointed attorneys is already in place, few civil rights organizations represent indigent criminal defendants. However, defendants should not entirely discount the possibility. For instance, a woman charged with assault who claims that she was defending herself after years of physical abuse might seek legal help from a women’s advocacy group.

Some areas offer indigents panel attorneys instead of public defenders. Is there any difference between these two systems?

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.

My friend and I were charged with committing a crime together. My friend got a public defender while I got a panel attorney. Why?

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:

  • If two defendants are charged with jointly committing a crime. Even if both are indigent, the public defender’s office cannot represent both because each defendant may try to point the finger at the other as being more to blame.
  • If the victim is a former public defender client. In this situation, the P.D. would have two conflicting duties: (1) to vigorously represent the current client’s interests, and (2) to not disclose any information learned from the previous client in confidence. To fulfill the duty of vigorous representation in the current case, the P.D. would have to use any information known about the victim that might put the victim’s testimony in doubt. Yet this could easily violate the duty owed by the P.D. to the previous client (the victim in the present case) to not use that information. Note: In this situation, public defender offices sometimes avoid conflict of interest problems by following a “don’t peek” policy. Under this policy, a P.D. stays on a case by promising not to look in the P.D. office’s files to dig up nasty but confidential information against a former client. Judges have an economic incentive to accept such promises: It’s almost always cheaper to appoint a second P.D. than a private panel attorney.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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