Public defender vs. private counsel

What is the difference between a public defender and a private attorney?

In federal court, a public defender is a full-time salaried lawyer in a defender office who may not take private clients. An appointed private lawyer is an independent attorney the court assigns from an approved panel. A retained lawyer is one the accused person hires directly. Federal law and Florida's rule both tie appointment to whether the person can afford counsel. Other states run their own systems, which this page does not survey. [1][2][7][9]

What is the difference between a public defender, an appointed private lawyer and a retained lawyer?

The difference is mainly who supplies the lawyer and how the lawyer comes to the case. In federal court, a Federal Public Defender Organization is made up of full-time salaried attorneys. Neither the Federal Public Defender nor the attorneys that office appoints may engage in the private practice of law. [1][2]

An appointed private lawyer is an independent attorney the court assigns to a case. Under federal law, counsel under a district's plan is selected from a panel of attorneys designated or approved by the court, or from a bar association, legal aid agency or defender organization. The statute also says private attorneys are to be appointed in a substantial proportion of cases. [7][6]

A retained lawyer is one the accused person hires directly instead of receiving one through a court appointment. Florida's rule recognizes this route. If a person taken into custody says they have an attorney or can retain one, the booking officer must put them in touch with that attorney or with the local bar's Lawyer Referral Service. [11]

In Florida, appointed representation usually starts with the public defender, but the rule also contemplates appointing "other counsel." Before appointing a public defender, the court must tell the accused that a lien for the services of the public defender or other appointed counsel may be imposed as provided by law. [10]

Which courts does this page describe?

This page uses federal court and Florida as examples. Other states have their own rules, and this page does not survey them. The Sixth Amendment provides the accused the right to the assistance of counsel. In federal court, federal law and local court rules govern the procedure for carrying out that right. [3][12]

How does a court decide whether to appoint a lawyer?

In federal court, the decision turns on whether the person is financially unable to obtain counsel. Unless the person waives representation, the magistrate judge or the court appoints counsel once it is satisfied, after an appropriate inquiry, that the person cannot afford a lawyer. [7]

Federal rules treat appointment as an entitlement for defendants who cannot obtain counsel, and the statute adds a discretionary category. Under Rule 44, a defendant unable to obtain counsel is entitled to appointed counsel unless the defendant waives that right. For certain other matters the statute lists, counsel may be provided when the magistrate judge or the court decides the interests of justice require it. [12][6]

Florida's rule uses the word "indigent." An indigent person is someone who cannot pay for a lawyer, including investigation costs, without substantial hardship to the person or the person's family. The rule also allows counsel for a "partially indigent" person, who pays the portion of the costs the court directs. [10]

Florida's rule also ties appointment to the kind of case. It provides counsel to indigent persons in prosecutions for offenses punishable by incarceration, including appeals from those convictions. For certain misdemeanor and municipal ordinance cases, the rule lets the court decline to appoint counsel if the judge files a written order of no incarceration within the time the rule sets. [9]

Before appointing a public defender, a Florida court must take three steps. It must give notice that a lien may be imposed, inquire into the person's finances with the person answering under oath, and require an affidavit of insolvency. An affidavit of insolvency is a sworn statement about the person's inability to pay. [10]

Florida's rule also addresses timing. Counsel is appointed at whichever comes first: formal charging, as soon as feasible after custodial restraint (being held in custody), or the first appearance before a committing judge. If a person in custody reasonably appears to be indigent, the public defender represents the person while a formal judicial determination of indigency is pending. [9][11]

Can the type of lawyer change during a case?

Yes. The federal statute and Florida's rule both describe ways representation can change. In federal court, if the judge later finds the person can afford counsel or can pay part of the cost, the judge may end the appointment or authorize payment, as the interests of justice may dictate. [8]

Change can also run the other way in federal court. If, at any stage including an appeal, the judge finds the person cannot pay a lawyer they had retained, the judge may appoint counsel. The judge may also substitute one appointed lawyer for another in the interests of justice. [8]

When co-defendants share a lawyer in federal court, the judge must look into the arrangement. Rule 44 requires the court to inquire about joint representation. It must also personally advise each defendant of the right to the effective assistance of counsel, including separate representation. [12]

Florida's rule describes a change tied to an order of no incarceration. If the court issues that order after appointing counsel, it may discharge appointed counsel. It may not do so if the defendant is incarcerated or would be substantially disadvantaged by the discharge. [9]

These passages do not set out every way representation can change. In federal court, federal law and local court rules govern how the right to counsel is carried out, so local procedure can matter. [12]

How can someone tell which kind of lawyer is handling a case?

An appointment is a court decision, while a retained lawyer is hired by the person. In federal court, the magistrate judge or the court appoints counsel after an inquiry into ability to pay. In Florida, the court requires an affidavit of insolvency before appointing a public defender. [7][10]

In federal court, an appointed lawyer comes from the district's plan. Counsel is drawn either from a court-approved panel of attorneys or from a bar association, legal aid agency or defender organization. Lawyers in a Federal Public Defender office do not have private practices. [7][2]

Payment is another dividing line. An appointed federal lawyer may not request or accept payment except as the court authorizes or directs. In Florida, the court tells the accused before appointment that a lien for appointed counsel's services may be imposed as provided by law. [4][10]

In Florida, a public defender may already be involved before a formal appointment. When a person in custody reasonably appears to be indigent, the public defender gives advice, seeks a reasonable bail and represents the person while the formal determination of indigency is pending. [11]

Does an appointed federal lawyer stay with the case through an appeal?

Under Federal Rule of Criminal Procedure 44, a defendant who cannot obtain counsel is entitled to appointed counsel at every stage of the proceeding, from initial appearance through appeal, unless the defendant waives that right. The appointment can still change if the court later finds the person is able to pay all or part of the cost. [12][8]

Does a court-appointed lawyer in Florida cost anything?

Florida's rule does not describe appointed counsel as cost-free in every situation. Before appointing a public defender, the court must tell the accused that a lien for counsel's services may be imposed as provided by law. A lien is a legal claim for payment. A partially indigent person may also be directed to pay the portion of the costs they can manage without substantial hardship. [10]

Can a lawyer for someone who cannot pay get investigators or experts in federal court?

The federal statute addresses this directly. Counsel for a person who cannot afford investigative, expert or other services needed for adequate representation may ask the court for them in an ex parte application. An ex parte application is a request the court considers without the prosecution taking part. [5]

Can an appointed federal lawyer accept money from the person or their family?

Only on the court's terms. The federal statute says that, except as the court authorizes or directs, an appointed attorney or the organization that provided the attorney may not request or accept any payment, or any promise of payment, for representing a defendant. [4]