Getting a Free Public Defender in Criminal Cases

Most defendants in criminal cases are represented by court-appointed attorneys who are paid by the government. These lawyers often work for a public defender office, though sometimes they have their own law practice and take court-appointed cases. This article explains who these attorneys are, who can receive their services, and the type of services you can expect from them.

How Do I Get a Free Court-Appointed Lawyer?

Most defendants in criminal cases can't afford to pay for an attorney (somewhere in the range of more than 80%), and the state can't legally prosecute such people unless they provide them with one.

To establish the right to a lawyer at the government's expense, defendants must show that they are "indigent" which is a fancy way of saying poor (which in this context means too poor to afford an attorney). The steps the defendant usually must take are to:

• ask the court to appoint a lawyer, and
• provide information under oath (in a questionnaire or by oral responses to the judge's questions) about their income and resources.

Usually, the defendant doesn't have to be the first one to bring up the issue. Typically, judges ask defendants at their first court appearance if they need a free attorney. Often, lawyers who get appointed to represent indigent defendants are already in court, waiting to be appointed on new cases.

Who is Eligible for a Free Attorney? How Poor is Too Poor?

It's impossible to say with certainty who will qualify for a court-appointed lawyer. Each state (or even county) has its own rules about who qualifies as indigent for the purpose of getting a free lawyer. For example, Florida defines "indigent" as a "person who is unable to pay for the services of an attorney, including the costs of investigation, without substantial hardship to the person or the person's family." (Fla. R. Crim. P. 3.111 (2023).) Some states, like Texas, have laws that list the factors courts should consider when deciding indigence, such as the defendant's income, assets, property owned, outstanding financial obligations, necessary expenses, the number and ages of dependents, and spousal income that's available to the defendant. (Tex. Crim. Pro. Code, Art. 26.04 (2023).)

The seriousness of a charge is also likely to affect a judge's decision on whether a defendant is eligible for a free lawyer. For example, a judge might decide that an employed person charged with shoplifting has enough money to hire a private defense attorney because the cost will likely be relatively low. But the judge could decide that the same person is indigent and qualifies for a court-appointed lawyer if they're charged with a complex and serious case like first-degree murder or criminal fraud.

If I Don't Get a Free Lawyer, Can I Get One at a Reduced Rate?

In many states, yes, if you don't qualify for free legal services you might qualify for representation at a reduced cost. In these states, the judge might appoint a lawyer to represent someone who exceeds the indigency guidelines but can't afford the full cost of a private lawyer. (See, for example, N.H. Rev. Stat. § 604-A:2-d; Fla. R. Crim. P. 3.111.) Then, when the case is over, the judge orders the defendant to reimburse the state or county for a portion of the costs of representation (and the state pays the rest). Typically, the reimbursement rate will be much lower than the standard hourly fees charged by private defense attorneys in that community.

Could I Still Be Eligible for Free Legal Services If I Have Wealthy Relatives?

Yes. Defendants are not legally required to ask relatives for money to hire an attorney. Judges determine indigency according to the income and property of the defendant. Adult defendants who are indigent remain eligible for court-appointed lawyers even if they have parents or other relatives who could afford to pay for a private attorney. But as noted above, some states will consider a spouse's income if the defendant has access to it.

Will Anyone Check Up on the Information I Provide in My Application?

It's possible. To protect the limited funds available for court-appointed lawyers, judges sometimes examine the accuracy of defendants' financial eligibility questionnaires. Because these documents must be filled out under oath, defendants who make false claims can be prosecuted for perjury. But such prosecutions are extremely rare. More likely, the consequence will be that the court will revoke the appointment of the lawyer and require the defendant to reimburse the government for legal services already rendered.

Is a Public Defender the Same as a Court-Appointed Attorney?

Yes. Whether they're called "public defenders" "court-appointed attorneys," or "private attorneys," anyone representing a defendant in criminal court must be a lawyer.

To make sure that everyone accused of a crime has an attorney to represent them, many states have set up public defender offices. Typically, each local office has a chief public defender and a number of assistant (or deputy) public defenders. They're all fully licensed lawyers whose sole job is to represent indigent defendants in criminal cases. Because they typically appear in the same courts on a daily basis, public defenders can gain a lot of experience in a short period of time. And many public defenders stay in that job their entire careers.

The public defender is part of the same criminal legal community that includes the judge, prosecutor, police, and court personnel. As a result, defendants sometimes fear that a public defender will pull punches in order to stay friendly with judges and prosecutors. However, most private attorneys—not just public defenders—also have regular contact with judges and prosecutors. All defense attorneys, whether private or government-paid, can maintain cordial relationships with judges and prosecutors while vigorously representing their clients. In fact, those relationships are often key to negotiating a good plea bargain when the defendant and their attorney agree that is the best course of action.

Some public defender offices assign the same public defender to a defendant's case from beginning to end. In other public defense offices, the public defenders are specialized. One public defender may handle arraignments, while another handles settlement conferences, and yet another works on trials. Usually, the more experienced attorneys handle the complicated phases, such as the trial. Under this method, a defendant could be represented by a number of public defenders as a case moves from beginning to end. This approach can make some defendants feel lost in the shuffle, especially if there isn't close communication between the different public defenders as the case moves from one phase to the next.

What Is the Difference Between Panel Attorneys and Public Defenders?

Panel attorneys are private lawyers who agree to devote part or all of their practice to representing indigent defendants at government expense. Panel attorneys handle most of the criminal cases in states that have no public defender offices. When the judge has to appoint an attorney for a defendant, the judge appoints the panel attorney whose turn it is to be in the judge's courtroom. Usually, the same panel attorney continues to represent a defendant until the case concludes.

Even in places where there are public defender offices, panel attorneys represent some of the indigent defendants. For example, in cases involving more than one defendant, the public defender's office can normally represent only one of them. Representing more than one defendant in the same case is usually a conflict of interest (codefendants could be pointing the finger at each other, for example). So, in codefendant cases, a panel attorney is usually appointed to represent the other defendant.

And in very large counties with a lot of cases, there might be a second, separate public defender office just to represent codefendants or step in when there's some other conflict of interest. For example, Los Angeles has an "Alternate Public Defender" office. In a multi-defendant trial in that county, someone will be represented by the public defender, another by the alternate defender, and any others by panel attorneys.

When Are You Not Entitled to a Court-Appointed Lawyer?

Indigent defendants are entitled to free legal representation only if there is an actual risk of a jail or prison sentence. (Alabama v. Shelton, 535 U.S. 654 (2002).) For example, someone charged with a minor traffic offense that carries only a fine or license suspension wouldn't have a constitutional right to free legal services.

Do Any Nonprofit Groups Offer Free Legal Assistance in Criminal Cases?

Indigent people can sometimes get free legal assistance in civil cases from various civil rights organizations. For instance, an indigent person who wants to sue a city for stopping her from handing out political leaflets might seek help from the ACLU.

But such assistance is rarely available to criminal defendants—in part because a system of government-appointed attorneys is already in place. But defendants shouldn't completely dismiss the possibility that a nonprofit group could help. For instance, a woman charged with assault who claims that she was defending herself after years of physical abuse might seek legal help from a women's advocacy group.

This article contains excerpts from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.