Criminal Law

Public Defenders

By Thomas Seigel, Attorney and Former Federal Prosecutor
A court-appointed lawyer is likely to be experienced and committed.

The Sixth Amendment guarantees all defendants the right to the assistance of legal counsel in felony cases. If a person cannot afford to hire an attorney, courts will appoint a lawyer free of charge, not only for felony cases but also for misdemeanors that can result in incarceration. Appointed lawyers come from either a public defender’s office or from a panel of local private attorneys approved by the court.

How a Lawyer Gets Appointed

When defendants are arrested, they must be brought before a judge within a specified period of time. This appearance is known as an arraignment or initial appearance. At that time, a judge will ask defendants if they can afford an attorney. Defendants who request appointed counsel typically must complete a short sworn statement listing their income, debts, and assets. Defendants with sufficient financial hardship will receive free legal counsel at that time and for the remainder of the case, unless their financial conditions improve significantly. You do not have to be unemployed to get a free lawyer. The courts usually look at your overall financial situation.

Defendants do not get to choose their appointed counsel. The court will appoint the local public defender’s office or a local private attorney from an approved panel. If the court appoints the public defender’s office, that office will assign one of its attorneys to the case. If the court appointed a private attorney from its panel, it may assign a lawyer from a list of attorneys on duty that day for court appointments.

For more on how the process works once an attorney is appointed, see Working with a Public Defender or Court-Appointed Attorney.

The Advantages of a Court-Appointed Lawyer

You should not assume that an appointed lawyer will be less capable than a private attorney you pay. Appointed counsel may perform as well as, or even better than, a private attorney, for the following reasons:

  • Most public defenders are dedicated to criminal defense work and want to help their clients get the best result possible. Their offices may have investigators and researchers on staff—resources a private attorney may not have. Attorneys in a public defender’s office are often respected members of the criminal defense community with significant experience and skill.
  • Private attorneys who sit on an approved panel of criminal defense lawyers also have extensive experience. They must apply to the local court for membership on the panel and be approved by the judges. These attorneys typically have their own private practice with many clients who pay them for their services; as appointed counsel they work for you for free.
  • Appointed counsel have the ability to ask the court to pay for more than just their fees. If they believe that your defense requires an expert witness, like a fingerprint examiner or an accountant, they can apply to the court for funds to cover such expenses.
  • Public defenders and appointed private attorneys know the local judges and prosecutors. They have likely appeared before your judge and negotiated with your prosecutor on many prior occasions. This experience gives them insight that translates into good advice and proven strategies.

Do I Have to Keep My Appointed Lawyer?

If, at any point during your case, you are dissatisfied with your appointed counsel and come up with the funds (perhaps from family or friends) to hire a lawyer of your choosing, you have a right to change lawyers. However, if you do so close to trial, be aware that even if your new lawyer asks for a delay in order to prepare, the court does not have to grant that request.

If you are unhappy with your appointed counsel but you do not have the means to hire a private attorney, there are ways to request a different attorney, but in general that should be done only as a last resort when you cannot resolve your disagreements. If, on the other hand, a conflict of interest arises that could compromise your lawyer’s ability to represent you, your appointed counsel has a duty to present this conflict to the judge. For example, if the prosecutor includes a former client of your lawyer on its potential witness list, your lawyer would be caught between his duty of loyalty to the former client and his duty to zealously represent you, which would include cross-examining the former client. Your lawyer would have to explain this conflict to the judge. In these circumstances, courts readily give new counsel additional time to prepare your case.

Questions to ask Your Lawyer

  • Can you help me complete my financial statement for the court?
  • What other resources can you, or the court, provide for my defense?
  • If I get a new job, will I have to pay for my own lawyer?

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