Points to Consider When Hiring a Private Lawyer over a Public Defender.
I receive telephone calls all the time from potential clients who are seeking help with their pending criminal matters. One of the questions that are most often asked of me is “Why should I hire a private lawyer and not take a public defender?" Obviously these individuals have decided that it is probably in their best interest to seek private counsel otherwise they would not have taken the time to locate my services and give me a call. I am happy to take their calls and give them my evaluation of their case for free, but usually a little reassurance is needed before they make what is obviously a considerable financial decision. These are the reasons that I often give to potential clients.
It’s your 6th amendment right to have an attorney, but you don’t get to choose who your attorney is if you are appointed a public defender.
I usually make this my final selling point to a potential client, that it is their 6th Amendment Right to choose who they want as their attorney. The 6th amendment of the United States Constitution guarantees every citizen the right to counsel for any criminal proceeding “and to have the assistance of counsel for his defence (sic)". Implicitly that means you can choose any attorney you want as your legal counsel.
It was the land mark case of Giddeon v. Wainwright, in which the United State Supreme Court ruled that state courts are required under the 6th Amendment of the United States Constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys. Giddeon v. Wainwright, 372 U.S. 335 (1963). If you’re appointed a public defender, you do not get to choose who is assigned as your lawyer.
The leading case in Arizona on this issue is State v. Bible, 175 Ariz. 549 (1993). In that case, a defendant who was charged with first degree murder and molestation of a child, claimed a lack of trust and confidence moved to remove his lead legal defender for inaction on his case. On appeal the defendant claimed the denial of his motion by the trial court was in error. The Arizona Supreme Court held:
"Although an indigent criminal defendant has a Sixth Amendment right to competent counsel, this right does not include counsel of choice. See State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069. Nor does this right guarantee a 'meaningful relationship’ between an accused and his counsel." Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610 (1983)."
"Although irreconcilable conflict is not permitted, conflict between counsel and a criminal defendant is but one factor a court should consider in deciding whether to substitute counsel. See LaGrand, 152 Ariz. at 486-87, 733 P.2d at 1069-70. A mere allegation of lost confidence in counsel does not require appointing substitute counsel. See State v. Crane, 166 Ariz. 3, 11, 799 P.2d 1380, 1388 (Ct.App.1990)."
I am not writing this to bad mouth or disparage any of my colleagues. There are many fine young attorneys that work in public defender offices. Unfortunately, you won’t get to choose who will be the one that work on your case. It could come down to the luck of the draw to get an attorney who will have the right passion and knowledge to properly handle your case.
Will your attorney give you the time of day?
It is no secret that public defenders are usually overworked and extremely underpaid. In the past I often accepted appointment of cases from the Superior Court because of “overflow" since the public defender’s office did not often have enough attorneys to adequately represent the number of criminal defendants they had to represent. The amount of “overflow" cases have been reduced in number during the past year, but I believe that is because of pressures to reduce government fiscal budgets and not because public defenders are getting less cases.
Many potential clients have family members who retain my services. Often a client will be interested in having me discuss their case with their family, especially when the family member is paying the bill. With a client’s consent, I am happy to do this.
A public defender will usually not talk to family members. They don’t want to do this, and an ethics opinion from the Arizona State Bar says they don’t have to (See Arizona State Bar Ethics Opinion, 07-01 Communications with Client’s Family or Friends (06-2007) “A lawyer has no per se duty to provide information about a client’s case or upcoming trial to the client’s family or friends"). Usually a public defender doesn’t have the time to get the client’s consent to talk with a family member, and they usually don’t have the time, even if they wanted to. A private attorney should always have the time to discuss your legal case, with you or your family.
Will your attorney have the right expertise?
There are many public defenders that have extensive legal expertise. Many are dedicated professionals who have many years of legal experience even with some having left private practice for this public service. Like any organization, some will have less experience than others, with little or no trial experience. Who is assigned to your case might depend on the type of charges you are facing, who your co-defendant is (due to conflict), which court you are in, and maybe what letter of the alphabet your last name starts with.
In Mohave County public defenders are assigned by courts and divisions. They call these “team" assignments. What that often means is that a case which starts in the Justice Court would have a public defender cover the case at the preliminary hearing stage, but a different public defender when the case is transferred to the Superior Court. When a case is transferred to the Superior Court, often that case is assigned to a Public Defender who is only assigned to a specific division in the Superior Court. The idea is that these public defenders can handle more cases because they only appear before one judge. This is a good way to give attorneys more case assignments, but it limits their experience on which judges they appear before. The types of cases they handle are then only based on the case assignments made by the court. Again, the public defender you are assigned isn’t based on the particulars of your case, but on which division the court has decided to delegate your case.
I will give another example on whether a public defender will have the right experience for your case. I am a former Deputy County Attorney (commonly known as a district attorney in other legal jurisdictions) with many years of prosecuting experience. You won’t find many former prosecutors becoming public defenders. It is typical for a former prosecutor to go out into private practice and become a criminal defense lawyer, but you will not very often find a prosecutor “switching sides" to become a public defender since this would usually be viewed as a “lateral" career move. A public defender will not typically have “prosecuting" experience and won’t have the full knowledge on what resources the State can or cannot bring to a criminal prosecution. An attorney that has knowledge of all phases of the legal system is a valuable ally to have when facing a legal challenge.
Ultimately, if you have the financial resources, it is your choice and your decision with who you retain as legal counsel in your criminal case. It is an important decision that will affect your criminal case which can impact your life. Take the time to call and research before you make the decision on which law firm to retain.
This post was intended to provide general information only and is not intended as specific legal advice. You should not rely upon this information alone, but should consult legal counsel regarding the application of the laws and regulations discussed and as applied to your specific case or circumstances.