Getting to Know Court-Appointed Attorneys
When an individual is unable to afford the services of a lawyer for legal proceedings, the court system may appoint a lawyer to provide the necessary legal assistance. This attorney is known as a court-appointed attorney, public defender, or panel attorney, and their role is to provide legal representation to those who cannot otherwise afford to pay for legal services. The procedures for appointing a court-appointed attorney differ by jurisdiction, but the process usually involves some form of application for fee relief or a request at the beginning of legal proceedings.
Court-appointed attorneys take on cases for individuals accused of crimes who are charged with a misdemeanor or felony in criminal court. These attorneys may also be assigned to represent parents facing child custody issues and those accused in civil cases who are unable to secure private representation. Considering the volume of legal matters brought through the courts, the courts rely on court appointments to help indigent individuals access the legal system and represent themselves fairly .
Most jurisdictions maintain a roster of licensed attorneys who volunteer to take on cases for free or at a reduced rate for those seeking fee relief. While virtually any licensed attorney may accept a case as a court-appointed lawyer, they must meet certain standards of quality set forth by each jurisdiction to earn a spot on their roster. This black-book approach enables the courts to offer competent legal representation to everyone.
While private attorneys are free to accept or decline a case for any reason, court-appointed attorneys do not have that luxury. Any attorney on the court roster must take on any and all court appointments they receive until they either become unavailable due to other professional obligations or become disqualified to practice law through a disciplinary procedure. These restrictions mean that even when court-appointed lawyers cannot dedicate the attention that clients deserve, they must work within strict guidelines to fulfill their duties and accept appointments for cases outside their normal range of practice.
Advantages and Disadvantages of Court-Appointed Attorneys
Pro and Cons to Having a Court Appointed Attorney
Courts have the option of appointing an attorney to represent a defendant when he or she cannot afford to pay for counsel. This attorney, known as a "public defender," is paid for by taxpayers. In most jurisdictions, these court-appointed attorneys are court employees and work for the local prosecutor’s office. Unfortunately, public defenders are not always an effective option. There are pros and cons to public defender representation.
Pros
Cost is the main advantage to having a court appointed attorney. This is especially true if you do not have a job and your assets have been seized by the police. A public defender will also work as hard as a private attorney. Public defenders are not bad lawyers. They are highly trained professionals who understand how the law applies to your case and have access to all of the same resources as private attorneys. Some public defenders are former prosecutors. Public defenders also come to your case with years of experience that is not afforded to a your average private defense attorney. In many communities, appointed attorneys represent more defendants than private attorneys do.
Cons
Unfortunately, public defenders are not as accessible as a your private attorney is. Most private attorneys have office hours where clients are welcome to stop by and talk to them whenever they have questions. Public defenders do not have as much time for in person client contact. The scarcity of legal aid services, combined with your need for representation, can lead to long waits at the courthouse and appointments that feel rushed. Public defenders also tend to have larger caseloads than private attorneys. While the size of a private defense attorney’s caseload may be a reflection of his or her reputation and skills, the sheer volume of cases handled by appointed attorneys means that they often lack the time needed to spend on any one case. Since public defenders’ salaries are paid for by the government, they are not paid for the hours they put into your case. Some courts have public defenders who are "flat fee" employees. Each one gets paid the same salary, regardless of how many cases he or she files on an annual basis. While this is great for assigned attorneys, many criminal defendants find that they do not feel like they are getting what they are already paying for. If your plea bargain or trial was not handled properly, you have no recourse. You cannot sue a court-appointed attorney for malpractice. Remember that an appointment to a public defense firm does not meet the constitutional requirement for access to counsel – it just ensures that you will get an attorney, even if the only one available is overworked and unable to provide the level of personal service you deserve. An experienced criminal defense lawyer should be able to listen to your story and clearly explain the strengths and weaknesses in your case. He or she should also be easily reachable, easily accessible, and enthusiastic about taking on your case.
On-the-ground Impacts: Success and Shortcomings
To illustrate the impact of this issue in the real world, I turned to one of my colleagues (who is also a long-time public defender) for some examples. One case he noted involved a defendant who was charged with aggravated battery with a deadly weapon in connection with a still-ongoing contentious divorce and custody battle. It was alleged that the defendant stabbed her estranged husband during an altercation. Fortunately, her public defender had the time to spend with her, encouraging her to attend a domestic violence group. The public defender also encouraged her to find and retain private counsel. Her lawyer found and hired a forensic psychiatrist who examined his client and then the doctor examined the former husband. The psychiatrist observed that the domestic violence at issue involved the man repeatedly choking the woman when she left him – sometimes in front of their adult children. The psychiatrist explained how the woman’s actions were a natural and almost instinctive response to what’s referred to as "battered woman syndrome" or generally, post-traumatic stress disorder. The defense attorney then had the psychiatrist examine the medical records that showed that the former husband abused alcohol to deal with his "angry impulses". The jury acquitted his client.
Contrast that with another case. A man was accused of robbery with a dangerous weapon. The lawyer moved to suppress the evidence against him and to dismiss the case due to a violation of his right to a speedy trial. The defense attorney won both motions, despite constant opposition by the prosecutor. The judge ordered the dismissal with prejudice and the prosecutor appealed. His client found out the next day from the local newspaper that the prosecutor had been given a "stay" of the judge’s orders. Despite repeated attempts to visit his client, the public defender’s office told the lawyer to hold off and not visit until the case was concluded – but the lawyer had no idea when the case would be concluded. Finally, about a month after the judge made his decision, the court ordered the state to recanvass the jury, however, there was a backlog for jurors, so the public defender had to wait again. Then, at a pre-trial hearing the prosecutor demanded that the defendant sign an agreement that included a gag order from talking about the case. The public defender, claiming that such an order violated the First Amendment (he was right), whittled away at the demand from the prosecutor bit by bit until the gag order was dropped and the attorney was allowed to ask questions of the potential jurors. The case was eventually resolved with a negotiated plea agreement with credit for time served, and his client was released. But it took 90 days to accomplish this, which length of time was most likely a result of the State’s failure to follow the rules.
Side by Side: Comparing Outcomes with Private and Court-Appointed Attorneys
Courts appoint an attorney for individuals that qualify as indigent, unable to afford an attorney. When this happens, the attorney may be private or public defenders. In many jurisdictions, public defenders are employed by the local municipality and provide services to indigent people charged or implicated with the commission of a crime. Private attorneys provide services to individuals at a per hourly rate or via a retainer. The cost and payment for the private attorney is largely the main difference in the representation.
In Los Angeles, the Public Defender is the largest law firm in the county. The Los Angeles Public Defender employs 1,200 attorneys and in any given year, the public defender may represent up to 80,000 clients. The sheer volume of people who are clients of the public defender lends itself to the issue of effectiveness of the representation because of the ability of the attorney to provide adequate counsel.
Research indicates that on average indigent people who are represented by private attorneys typically receive better legal outcomes than indigent people that are represented by public defenders. According to a study published in the Journal of Criminal Law and Criminology titled "The Hidden Costs of Wrongful Convictions: Evidence from Twenty Years of Wrongful Convictions in North Carolina , " there was evidence that indigent persons represented by a public defender received harsher outcomes. The author of the study attributes the harsher outcomes to the high case loads and lack of resources afforded the public defender. Specifically, the author of the study indicated that "public defenders are overworked, underfunded, and inadequately supported administratively."
This same issue of the adequacy of representation has been at the basis of innumerable wrongful convictions, even getting to the level where the Supreme Court of the United States ordered DNA testing of stored rape kit evidence that cumulatively created an exculpatory story from which a convicted person could be exonerated. See Barry Beach v. Thomas Monahan.
Compounding the issue is that the indigent is not in a position to choose who his or her attorney is if obtaining counsel via a public defender. This leads to the indigent being represented by an attorney who lacks zeal and experience. Questions of the right to adequate counsel have made their way to the United States Supreme Court twice since the seminal case of Gideon vs. Wainright.
Optimizing Outcomes: Recommendations
In light of the common problems with court-appointed attorneys, many in the legal community have offered suggestions on how the system can better support attorneys in providing quality representation. A 2014 New York Times editorial focused on specific solutions to the funding shortfall that hinders the work of public defenders. Specifically, The Times called on Congress to "take a close look at one oft-neglected source of funds: forfeited assets." With the support of U.S. District Judge John Gleeson, the publication asserted that public defenders, who are charged with representing indigent clients in federal court, have been compelled by rising costs to draw on money forfeited to the federal government. Judges in the state courts have expressed a similar sentiment, that public defenders bear a heavier financial burden than they ought to. The New York Times recommendation was to apply a "more appropriate percentage" of forfeited funds to indigent defense "as the federal system has done since the 1970s." Others have proposed expanding indigent defense systems to other types of criminal defendants, in light of the fact that more than 60 percent of criminal defendants in the United States do not receive defense counsel from the government. While 98 percent of criminal defendants charged with felonies in federal courts and 87 percent of non-misdemeanor defendants in state courts are represented by court-appointed counsel, the majority of misdemeanants and those charged with infractions receive no counsel. The system as a whole has not been able to keep up with the rise in arrests and prosecutions, despite increased support from various state, county, city, and national organizations. In his 2001 article "The Myth of the Rule of Law," Steven Zeidman describes the growing need for "system-level" reform for indigent defense, especially for non-felonious criminal cases. He notes that, even in federal courts, deficiencies in the current system "have persisted through half a century of advocacy and litigation and right through to the present day." Founding Director of the Policy Advocacy Clinic at Yale Law School Judith Resnik aptly characterizes the problem in "Representing Justice: Invention, History, and Critique in the Theory of Professional Ethics." She writes, "Those who represent (and effectively govern) receive professional training from various schools, whereas those who are represented receive little of comparable value, while suffering under the pains of confinement or the disruptions of the civil courts." Resnik, who has played a role in the development of the "professional identity" of judges and lawyers, calls for "fundamental redress." Remedies proposed include focusing on the lack of tangible support for defense lawyers, more stringent enforcement of the ABA’s Model Rules, and providing attorneys who have no incentive to pad their billable hours "meaningful assignments."
Got Experience? Interviews and Testimonials
The most striking example of the positive impact of a court-appointed attorney recently came from a consumer I interviewed who remains convinced to this day that she would have lost custody of her young children had it not been for her attorney. She chose to move into the father’s area at the suggestion of a therapist, though he was adamant the family needed to remain separated. Almost immediately, father filed an action to relocate the children to another area. The attorney appointed to represent her was from a non-profit legal organization. He did not charge her much for his services. The result in that case was that the expert father hired to support his request for relocation, whom she recalls as being "brilliant" testified on her behalf. For the consumer, it was a life-changing experience. He won full legal and physical custody of the children. As she noted, she has always worked hard; now she has the opportunity to succeed. Since then, she has relocated to a new area and has seen sleepless nights that there is time to plan what she needs to do to see that her kids make the most of their opportunities.
However, a nuanced view is in order, because sometimes , the quality of the attorney makes a huge difference in one’s perception of the experience of being represented by a state-appointed attorney. A consumer I interviewed who is currently involved in a custody dispute with a father expressed her disappointment with her experience. She contacted a group that provides attorneys through the state. Father is representing himself. Her court-appointed attorney left the room to confer with a lawyer from an area organization that provides legal services to domestic violence victims who was assisting her in preparing a protective order against the father. After the meeting, she never heard from anyone else until the hearing. She was apprehensive about going to court since she had not seen the court system in action. After the last hearing, father was awarded a 50/50 split of parenting time. She is now hoping to have more time with her child. Finding a good attorney to work with her is important to her now. Also important is finding adequate childcare for her child while she looks for work. The group that provided her representation will also provide childcare in a safe environment. She found it sad because she only wants the same services and opportunities that he had, and felt that nobody really understood both sides of the issue.