The Sixth Amendment guarantees all defendants the right to the assistance of legal counsel in criminal cases. If a person cannot afford to hire an attorney, courts will appoint a lawyer at public expense, not only for felony cases but also for misdemeanors that can result in incarceration. This court-appointed attorney will usually be either a public defender or a panel attorney. Both have the same responsibilities—to zealously represent and defend their clients.
Court-Appointed Attorneys vs. Public Defenders: Are They the Same?
A public defender is simply one type of court-appointed counsel. The terms are used interchangeably a lot. (This article is no exception.) Both are fully licensed attorneys whose job is to represent criminal defendants. They are paid with public funds. The primary difference involves their working arrangements.
Appointments by the Court
Upon determining that a defendant is "indigent" (can't afford to hire legal counsel), the court must appoint one for the defendant. Defendants don't get to choose their appointed counsel. The court will typically appoint the local public defender’s office or a local private attorney from an approved panel (sometimes called a court-appointed or panel attorney). The appointment varies depending on how the state or county provides indigent defense services.
Public Defenders Offices
If the court appoints the public defender’s office, that office will assign one of its attorneys to the case. Usually, the state runs and funds public defender offices throughout the state. Public defenders may work as full-time or part-time staff in their local office.
Panel Attorneys Assignments
If the court appoints a private attorney from its panel, it may assign a lawyer from a list of attorneys on duty that day for court appointments. These attorneys often have a private practice and apply to be a panel attorney who is paid on a case-by-case basis.
Are Public Defenders and Court-Appointed Attorneys Free?
It depends. Some jurisdictions try to recoup some of the public costs of court-appointed counsel by one or more of the following means:
- imposing upfront fees to apply for a public defender or court-appointed counsel—sometimes called a co-pay or an application, contribution, or registration fee
- requiring full or partial reimbursement or recoupment of costs after conviction, or
- requiring certain defendants who have some ability to pay to contribute toward the costs of court-appointed counsel (often called partial indigency).
These fees and costs are controversial, but many states still use them.
Are Court-Appointed Lawyers Good?
Yes. Court-appointed lawyers and public defenders are good at what they do, very good. Don’t 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.
Extensive Experience in Criminal Defense
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 (or close to free).
Ability to Ask for Investigative Funds
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.
Frequently Appear in Court and Negotiate with Prosecutors
Public defenders and appointed private attorneys know the local judges and prosecutors. They've 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.
What Are the Responsibilities of Court-Appointed Attorneys?
Public defenders and panel attorneys have the same responsibilities and ethical duties as private criminal defense counsel. They must:
- zealously represent their client and defend their rights (guilty or not)
- investigate the case and develop a defense strategy
- provide legal and candid advice to their client
- maintain confidentiality of attorney-client communications, and
- communicate with and keep their client informed about plea offers, defense strategies, and important case developments.
All criminal defense attorneys must provide effective legal representation for their paying and non-paying clients.
One of the biggest challenges for public defenders and court-appointed attorneys is their caseload—how many cases they are juggling at one time. Because having legal counsel in criminal cases is a constitutional right, public defenders typically can’t turn down cases. Given that you’re just one of many clients, here are some tips on working effectively with your lawyer.
How to Work Effectively With Your Court-Appointed Attorney
Let’s look at how to get this new relationship started on the right foot. What can you do to help your public defender or court-appointed attorney evaluate the case and come up with the best legal strategy? What questions should you ask? What actions should you avoid?
First Priority: Getting Out of Jail
Your lawyer’s first priority will be to work with you to figure out whether you can post bail. Don't expect too much else in this initial meeting. Your appointed counsel will need as much information as you can provide regarding anyone who might be able to post bail or sign a bond to secure your release. Also provide your attorney with any community connections you have, such as steady employment, family in the area, or enrollment in classes. Based on this information, your attorney may be able to argue for release on your own recognizance (which is free).
Next Up: Preparing the Case
Remember that public defenders have a lot more experience in court than you do. They've been trained to identify the key legal issues and the facts most likely to matter to a judge and a jury. You can help your attorney in many ways, but there are just as many ways to damage your own defense. Here are some “dos” and “don’ts.”
Do start with trust. Begin your relationship with an assumption of trust. Some clients believe that appointed lawyers cannot be trusted because they are paid with public funds. It’s a mistake to automatically suspect your public defender as someone not fully on your side. Public defenders are normally passionate about the cause of criminal justice and would never betray their ethical obligations to clients.
Do follow your lawyer’s lead. Start off by letting your lawyer ask the questions. Many lawyers will begin with the police report, going over it and asking you to comment. Few lawyers will ask you an open-ended “What happened?”—not because they don’t want to hear from you, but because they are focused on defeating the prosecution’s case. Keeping the discussion centered on what the prosecution knows (and thinks it can prove at trial) is an efficient way to begin to craft a defense.
Do ask questions. You can certainly ask your lawyer any questions you have. Your defense counsel is obliged to explain the strategy for your case, and you should not be afraid to ask about this, either. But don't be surprised if what your attorney sees as important to your defense is different from what you think.
Do answer truthfully. Answer your lawyer’s questions honestly. In order to come up with the best defense to the charges, your lawyer must understand what arguments might work and what facts make other arguments impossible. For example, if your lawyer asks you about witnesses to an incident and you omit the name of a friend who was there, that friend could either be your corroborating witness or the prosecutor’s best witness against you. In either case, your public defender needs to know about this person.
Do consider all the options. Your lawyer is duty-bound to present all the ways in which your case might be resolved. In many situations, a plea bargain to lesser charges is an appropriate option. And sometimes, the prosecution offers reduced charges in exchange for cooperating with law enforcement. Even though you may be firmly opposed to either avenue, don’t get angry if your public defender raises them. You have the absolute right to go to trial and require the government to prove its case, even if your lawyer thinks a plea bargain would give you a better result. Whether to go to trial is your decision alone.
Don't investigate. Don’t try to investigate the case on your own. Public defenders have experience preparing cases for trial and often have professional investigators on staff. These professionals know how to interview witnesses and can testify at trial if needed. You should not call or write to anyone about the case unless your lawyer gives you clear instructions to do so.
Don't interview witnesses. If you talk to anyone else about the facts of your case, that person could become a witness against you—making your lawyer’s job even tougher. In addition, you do not want an awkward conversation to be seen as witness tampering by the prosecution. It’s normally much better to let the public defender contact potential witnesses.
Do I Have to Keep My Court-Appointed Lawyer?
At any point during your case, if you 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, doing so close to trial comes at a risk. Even if your new lawyer asks for a delay in order to prepare, the court does not have to grant that request.
If you're unhappy with appointed counsel but don’t have the means to hire a private attorney, you can request a different attorney. But, in general, this option should be a last resort when you cannot resolve your disagreements. Learn more in Before You Fire Your Court-Appointed Lawyer or Public Defender.
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 their duty of loyalty to the former client and their duty to zealously represent you, which could 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.