Private Counsel or Public Defender?

Private Counsel or Public Defender

If you were recently arrested or even arraigned, the decision of whether to keep your public defender or retain private counsel is the most important choice you will make going forward regardless of whether your ultimate goal is to prove your innocence at trial, or negotiate a plea deal in advance.

Here’s some straightforward information to help guide your decision.

#1 Public Defenders Are Great.

They tend to be committed to their clients, are experienced in the courtroom, and they have good working relationships with prosecutors. They also don’t have to worry about running a business in addition to practicing law and have access to resources most private defense attorneys don’t have.

#2 Public Defenders are overworked.

This is true of virtually all attorneys, but especially for those representing the indigent. Washington’s Standards for Indigent Defense allow individual public defenders to represent up to 400 cases per attorney. This makes getting a hold of them difficult and clients often complain that things were not fully explained to them prior to signing documents, taking plea deals or otherwise making decisions with consequences.   “Customer service complaints” are probably the #1 issue clients have with public defenders (though the same can be true for private).

#3 Not all Public Defender is attorneys.

Some are what are called Rule 9 interns, who have at least two years of law school under their belt, but have yet to actually graduate, take the bar, and – in many incidents – try a case. Most work as volunteers in public defenders’ offices for the experience, and although supervised by more senior attorneys, are nevertheless “here to learn.”

#4 You don’t have an automatic right to a Public Defender.

While your right to an attorney is stated in the Constitution, the right to an attorney at public expense is reserved for those who have been screened and found to be indigent. The process of screening varies from jurisdiction to jurisdiction, but it may require (depending on the jurisdiction) that you go before a Judge and prove your financial situation under penalty of perjury. If the court finds you to be “indigent” it will grant you an attorney, but often this does not mean you get the attorney for “free.”

Generally, when the Court finds that you are not really indigent but also not really able to pay for your own attorney, they will impose a contribution cost. Chris has seen these costs range from $150 to around a thousand.   There’s no hard and fast dollar figure to define “indigent” but just because you are on disability, receive food stamps, have children or student loans or were recently laid off…DON’T EXPECT TO GET AN ATTORNEY FOR FREE. You will probably be asked to contribute finances to the cost of your representation.

The major difference – however – is that private defense counsel will probably ask you to pay at least a portion of their fee in advance, while the Court will ask you to pay for your defense at the disposition of your matter.

#5 You don’t have the right to chose your Public Defender.

Depending on the situation, you may be able to fire your public defender and substitute private counsel – but trading one public defender for another is tricky and never a guarantee.

#6 Most private criminal defense attorneys were public defenders at one time or still do public conflict work.

#7 Private Attorneys range in affordability.

Some – like the Law Office of Chris Van Vechten – have payment plans and also allow payment by credit card. Criminal Attorneys are also a flat-fee staggered rate, which takes some of the sting out of retaining one.  Bottom line, if there’s a real possibility you’re going to have to pay $1000 for a public defender, you can probably afford to hire a private  attorney.

#8 Regardless of whether you are even convicted, just being charged with a crime can be an expensive affair.

The conditions of your release (if you are lucky enough to be released) include costly No Contact Orders, SCRAM devices, Electric Home Monitoring, Work Release and more, all of which need to be paid for at the Defendant’s expense (some expenses may be covered by the Public Defender’s Office if you are found to be indigent).

It is never clear whether modifying the conditions of release is within the scope of a Public Defender’s representation, who may perceive their duty as reserved to defending you against your charge, and not restoring you to a more normal routine while you await the disposition of your case. 

In summary, no matter what you’re charged with, what’s at stake for you is your finances, your future, and your freedom.  Neither a public defender nor private counsel can change the facts of your case, but both can have a significant effect on how the jury, the court, or the prosecutor interprets those facts when applied to the law.