Qualifying 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.

Who Qualifies for Free Legal Services? How "Poor" is Poor?

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.

Partial Payments for a Court-Appointed Attorney

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.

When You Are Not Entitled to a Court-Appointed Lawyer

Indigent defendants are entitled to free legal representation only if there is an actual risk of a jail or prison sentence (Alabama v. Shelton, U.S. Sup. Ct. 2002). For example, an indigent defendant charged with a minor traffic offense whose penalty is a fine or license suspension or revocation would not be entitled to free legal services.

If a judge agrees at the start of a defendant’s case not to impose a jail or prison sentence, no lawyer need be appointed. Although most judges prefer to appoint a lawyer rather than promise no jail time in advance, the county's ability to house low-level offenders may be a factor. If the jail is crowded and there's no room (or money) to house relatively minor offenders, a judge may decide that a jail sentence wouldn't be feasible anyway, and refuse to appoint an attorney.

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