Getting an Attorney to Handle Your Criminal Case

There's a lot at play when it comes to legal representation in criminal court.

By , Attorney · University of San Francisco School of Law
Updated by Stacy Barrett, Attorney · UC Law San Francisco
Updated February 21, 2024

Within the complex criminal justice system, a defense attorney serves as the defendant's guide, protector, and confidant. (At least that's how it's supposed to be.) Defense attorneys are usually grouped into two camps: court-appointed attorneys paid by the government and private attorneys paid by the defendant.

Some criminal defendants can afford to hire a private criminal defense attorney. For those who cannot afford an attorney (over 80% of criminal defendants), the court may appoint counsel to represent the defendant. These court-appointed attorneys are either public defenders on government salary or local attorneys chosen from a pool or panel of private attorneys qualified to handle criminal cases ("panel attorneys"). A small fraction of criminal defendants (approximately 2%) represent themselves and are referred to as "pro se" or "pro per" defendants.

What Does a Criminal Defense Attorney Do?

Criminal defense attorneys (private and court-appointed) review the evidence, investigate potential defenses, and try to get the case dismissed or negotiate a plea bargain. A plea bargain typically involves entering a plea of guilty or no contest in exchange for a reduced charge, sentence, or both. For many reasons—political and public pressure, overcrowded jails, and overloaded court calendars—plea bargaining has become an essential element in unclogging the criminal legal system.

Criminal defense attorneys also file motions, examine witnesses during evidentiary hearings (such as motions to suppress evidence), assess potential sentences, and advise on potential immigration consequences or other consequences of a plea, conviction, or criminal record.

Defense lawyers also counsel their clients by acting as a reality check as to the possible outcomes and by helping the defendant deal with the frustrations and fears resulting from being thrown into the criminal justice system. And of course, if no plea deal can be made, the defense lawyer represents the defendant at trial.

How Much Do Criminal Defense Lawyers Cost?

A huge factor when it comes to legal representation is the defendant's financial status and whether the defendant can afford private counsel. Private criminal defense attorneys charge either on an hourly basis or by a fixed or set fee. According to Clio, a legal technology company, the average hourly rate for a criminal defense lawyer in 2023 was $211. Criminal lawyers are prohibited from charging contingency fees—payments that depend on the outcome of the case—commonly used in personal injury cases.

If the defendant is indigent (cannot afford private counsel), the court must provide a lawyer (a government-paid public defender or panel attorney). People who can afford to hire a lawyer don't qualify for court-appointed counsel.

The federal right to a government-paid defense attorney kicks in whenever an indigent defendant faces a jail or prison sentence. Every state now guarantees the right to counsel too, though rules about exactly who qualifies and when the right arises vary from state to state.

The right to free representation doesn't mean a right to the lawyer of choice. A defendant who's been appointed counsel normally doesn't get to pick and choose in the way that a paying defendant does.

Is a Private Attorney Better Than a Court-Appointed Attorney?

Defendants often believe that private attorneys possess a distinct advantage over the public defender's office or panel attorneys. But studies that evaluate the outcomes of having a private versus court-appointed attorney, data seem to indicate that the results for defendants are often the same. For example, one study indicated that defendants represented by private counsel and public defenders fared similarly in conviction rates and sentencing (although those represented by panel attorneys fared worse).

Such statistical evidence is not always reliable or clear because of complicating factors. For instance, clients represented by private counsel often have short or no prior criminal records, while indigent defendants are twice as likely to be repeat offenders. What is also unclear—and what creates one of the biggest uncertainties of the criminal justice system—is whether private attorneys can negotiate better plea deals than court-appointed counsel.

Ultimately, the experience, skills, and commitment of the particular attorney at hand—court-appointed or private—is the best indicator of the quality of the representation.

Do Defendants Ever Represent Themselves? (Pro Se)

What is clear is that being represented by a lawyer is almost always the best option. Nevertheless, some criminal defendants represent themselves. The decision of whether a defendant can self-represent is ultimately made by the judge, not the defendant. The judge is required to determine the defendant's competency. That's because a defendant who cannot provide a competent defense can't get a fair shake, even if the defendant is adamant about not accepting the services of a court-appointed attorney. When determining whether a defendant can go pro se, a judge will consider factors such as:

  • the seriousness of the crime
  • the defendant's language skills and education
  • whether the defendant understands the nature of the proceedings, and
  • whether the defendant is knowingly giving up his right to counsel.

How to Find a Criminal Defense Attorney

When looking for a private defense attorney, find an attorney who specializes in criminal defense and practices in the jurisdiction (city or county) where charges are pending. A local attorney will be familiar with the judges and prosecutors in that area. If you can, try to get a referral from someone you trust. Most private criminal attorneys offer free consultations, so don't hesitate to talk to a few different lawyers to get a sense of whether the attorney is a good fit for you and your case. Learn more about what to look for in a private criminal defense attorney.

If you don't have the financial resources to pay for an attorney, ask for court-appointed counsel as soon as possible (before or at your first court appearance). You'll typically need to fill out paperwork on your financial resources. Learn more about public defender representation.

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