Getting to Know Court-Appointed Attorneys
A court-appointed lawyer is an attorney who has been appointed to represent a party in a case when that party cannot afford to pay for legal counsel. The right to be represented by an attorney is protected at the federal, state and local levels. It applies to all criminal cases in federal and state courts, and to civil cases in state courts. However, at the federal level, it does not apply to civil cases that are filed in federal district court.
Court-appointed lawyers are not identical to public defenders, although the terms are often used interchangeably. While court-appointed lawyers can be public defenders , they may also be attorneys from private firms that are appointed by the courts. Additionally, unlike public defenders, court-appointed lawyers typically do not have the same set number of cases that they must handle during a given time period. This enables them to dedicate more time to each case they accept.
As most people are aware, a privately hired attorney charges a fee for his or her services. Public defenders charge no fee. Court-appointed lawyers may charge a nominal fee for the services they provide. This fee will be extremely low, and could consist simply of part of the fee that would have otherwise been paid by the defendant if he or she had been paying for a private lawyer.
Skills of Court-Appointed Attorneys
Most commonly, when courts need to appoint lawyers to represent individuals or companies in litigation who cannot afford to pay a lawyer, they rely on members of the local bar in the area in which the litigation is taking place. By local rule, in federal and state courts the court appoints lawyers from the panel or panels of lawyers who are willing, and have applied to be, appointed by courts on such occasions. In most cases, the courts rely on recommendations from other judges or from other lawyers. To remain on, or be placed on, such panels, lawyers are required to be admitted to practice before the United States District Courts and Courts of Appeal, the state supreme courts, and such lower courts as the American Bar Association may from time to time require. Lawyers seeking placement on such panels are usually required to have a minimum number of years of experience, and to have previously handled a minimum number of civil or criminal cases, respectively, depending upon whether the appointments involve civil litigation or criminal defense.
Because a court will likely need to work with a court-appointed lawyer imposed upon it in the context of a dispute, it is in all of the parties’ interests to ensure that the court is initially satisfied with the qualifications and experience of the court-appointed lawyer who is proposed. The party being defended should at least be satisfied that the lawyer has sufficient experience, skill, commitment, and resources to mount an effective defense. The party or parties asserting claims should demand the same in the event that they are to bear the burden of litigating that aspect of the case.
Why Use Court-Appointed Attorneys?
One of the main advantages of using a court-appointed lawyer is the cost. The cost of hiring a lawyer is out of reach for many, if not most, people that are accused of a crime. A court-appointed lawyer eliminates that cost and allows everyone accused of a crime to have legal representation even if they do not have sufficient money to hire a criminal defense lawyer. Most of the time, people do not have money to hire a lawyer because of the financial consequences that occur when they are charged with a crime.
In addition to the financial benefits for defendants, the system of court-appointed representation would likely increase the availability of legal representation, and make it less expensive for municipalities. Municipalities spend millions of dollars every year to provide representation for indigent defendants. With the advent and proliferation of plea bargains, the current system of providing court-appointed lawyers and paying them hourly is the most costly breakup of any aspect of the criminal justice system. As an example of the high costs of providing court-appointed lawyers, the Atlanta Judicial Circuit spent $8,374,990.00 in 2011 in private court-appointed representation. The private representation costs taxpayers $164.16 per hour. If the 2011 Atlanta Judicial Circuit costs are an accurate representation of the costs of court-appointed representation across the state of Georgia or the rest of the country, how can you argue against considering a radical overhaul of the current system? If the state was required to pay a flat fee to a defendant’s lawyer, the lawyer could be paid regardless of the outcome of the case. Instead, if the lawyer works on the case as many hours as it takes and bills at an hourly rate of $164.16, either the lawyer is going to work an excessive number of hours for every case or taxpayers will be footing the bill for lawyers who are willing to work for a low hourly rate.
Limitations Facing Court-Appointed Attorneys
Despite the numerous issues associated with the positions of court-appointed lawyers, courts are hesitant to hand out too much responsibility to other legal professionals because of the possible effects on their ability to assist clients if they are disqualified from a case. Judges are also wary of allocating powers to other legal team members because those new parties could potentially attempt to resolve issues better left in the hands of a judge alone. The issues surrounding the appointment of court-appointed lawyers, along with their effects, were recently explored in a national survey conducted by The ABA Journal. The survey revealed that many lawyers in this profession work long hours for little pay and face many of the same issues associated with attorneys who are appointed without any compensation. For example, a survey conducted by the National Center for State Courts revealed that 44 percent of trial lawyers reported a lack of support staff for investigations. Further, 70 percent of all respondents said that clinical psychologists and psychiatrists are readily available to properly assist their criminally accused clients. Without the resources they need to carry out their duties, these professionals may be unable to fully assist their clients. Many respondents cited excessive caseloads as a barrier to their ability to carry out their job duties, citing that the size of their caseloads was interfering with their ability to properly assist clients. It is also essential for medical and discovery needs to be met in a timely manner, or court-appointed lawyers may find it difficult to do their jobs effectively. Respondents noted that while they can request funds to seek outside assistance with expert witnesses and investigators, many judges do not grant them those requests. Others noted that they had to use their own funds to properly assist their clients or they were not able to do so at all. As these challenges build, the likelihood of appeals and jurisprudence is likely diminished as court-appointed lawyers struggle to meet the demands of their duties with limited resources.
Outcomes and Success Stories with Data and Anecdotes
Evidence of real-life success can help to measure the effectiveness of court-appointed lawyers. Here are some examples of recent cases where court-appointed lawyers achieved real results for defendants.
One example:
In Michigan, a court-appointed juvenile defense attorney successfully got a 15-year-old boy with AHDH an individualized education program to cope with his special needs. The child was bullied at school, and his parents sought a solution through due process. That is, given the bullying, there was the possibility of criminal charges if the child got into a fight. His parents sought a due process hearing and court-appointed attorney represented the child. The attorney got the client the individualized education program that he needed, in what seemed a clear example of a successful outcome.
Another example:
In 2011, the California Supreme Court granted review in an interesting case which involved allegations that the trial judge erred by appointing a public defender to represent a defendant who suffered from a mental disorder . The defendant claimed that the public defender had failed to investigate a possible insanity defense. The trial judge refused to appoint a private lawyer, and meanwhile, the defendant was convicted of first-degree murder. Thereafter, the California Supreme Court agreed to appoint a private lawyer to represent the defendant. By granting the Petition for Review, the state supreme court seemingly was potentially taking a role in giving the defendant some measure of justice.
Still another example:
The California Supreme Court granted review in 2011 in another case about the ineffectiveness of counsel. In this case, the defendant was sentenced to death by a trial judge who actually wrote the opinion denying the appeal himself. The state supreme court overturned the death sentence, finding that the trial judge should have appointed a lawyer to represent the defendant.
Private versus Court-Appointed Attorneys
When comparing court-appointed lawyers to private attorneys, it’s important to consider the differences in case management skills, case outcomes, and client satisfaction. A court-appointed attorney is typically chosen for you if one is needed to represent you in your situation. In criminal cases, the court will either appoint a public defender or a private attorney who charges a criminal defense fee, but both options are generally free of charge to the defendant with payment coming from taxpayers or collected from a successful outcome.
A private attorney is hired to represent you only if you can afford to pay them. When concerned about the ability of attorneys to provide quality services, many people think that hiring a lawyer might get you better results. However, at the trial court level, studies have shown few differences between appointed and retained counsel with respect to case outcomes, which lawyers represented the winning side, and client satisfaction. A review of 240 trials found no difference in either the case outcomes or satisfaction ratings depending on whether the attorney had been court-appointed or retained. While the research does show a difference in how the cases were handled, that difference was statistically negligible. In criminal cases, the data indicated that public defenders got better verdicts in 68 percent of cases than private attorneys. In civil cases, retained attorneys were more likely to win in 64 percent of cases.
Although cases handled by public defenders and private attorneys are statistically equivalent, the experiences of clients and their families are not the same. Some studies have indicated that defendants with assigned counsel receive 50 percent less client contact than defendants with retained counsel, while other reports have shown that assigned counsel spend more time with clients but also have fewer resources and subpoena power, making it more difficult for them to litigate pretrial issues. There is also evidence that in lawsuits, clients who proceed pro se fare worse than those who are represented by counsel with a similar adoption rate of 43% for represented plaintiffs and 23% for pro se litigants.
Clients may be more satisfied by the services they are receiving when they can choose their own attorney versus having one appointed for them. Clients who make an informed decision regarding their choice of legal counsel are able to communicate higher levels of satisfaction than those with less information on the subject. In addition, clients who work on designing case strategies with their attorneys are more likely to feel satisfied with the services being provided. They have a better understanding of the processes involved in their case, can discuss how issues may affect the outcome, and are more likely to have realistic goals in that regard.
Final Verdict – Are Court-Appointed Attorneys Any Good?
The question of whether court-appointed lawyers are effective is complicated. We have seen that in some situations they are as good or better than privately paid lawyers. At the same time, we have seen that they can be particular victims of ineffectiveness especially in the death penalty context, on the one hand, and the poorest of the poor on the other. And this problem is exacerbated by the great variety of public defender offices and by the fact that many public defender offices would not consent to representation in a case where public defender was clearly going to be important – a complex criminal case involving multiple defendants.
Still, many public defender offices perform very well and are lucky enough to have funding support from their state legislatures or county commissions. The important question for the public how to make sure this continues, how to make sure that the right to free counsel continues to have the quality that our state and federal courts demand in our most important cases even for the poorest of the poor. With laws on the books guaranteeing representation , the courts have little choice.
One solution is to provide the needed resources. Money for investigators, for defense experts, all of these things can make a difference. In other cases, it is not enough and the danger is that the state must withdraw the case. Or have the court supply the necessary assistance, as happened on two occasions in Ohio. The first occasion was Brown v. Gentry, where a court appointed a law firm to represent a defendant when the public defender had 350, 375 cases, which made it impossible to provide effective assistance. In the second case it was Mr. Morrison who was found to be ineffective, and the state Supreme Court removed him from the case and appointed counsel from outside the county in which the original trial was held.
In the end, it is clear that we are finding ways to ensure that defendants get effective assistance of counsel through courts taking it upon themselves to trim back the workload of public defenders or allowing them the ability to have assistance from the private bar. The question is whether in the future these approaches will increase or decrease in the future.
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