What If I Can’t Afford an Attorney?

Defendants facing possible jail time are entitled to a court-appointed lawyer if they can't afford one.

By , Attorney · UC Law San Francisco

If you've been accused of a crime and can't afford to hire an attorney, don't fret. The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the "assistance of counsel." Lawmakers and courts use the terms counsel, lawyer, and attorney interchangeably, and you've undoubtedly heard the term public defender. Public defenders are court-appointed attorneys (more on that below).

In a series of decisions in the 1960s and 1970s, the U.S. Supreme Court ruled that all criminal defendants facing the threat of incarceration (jail or prison) have a right to be represented by an attorney. Defendants who can't afford to hire an attorney have the right to a government-appointed attorney to represent them at public (taxpayer) expense.

This article provides an overview of the ins and outs of court-appointed criminal defense attorneys: Who gets one? How do courts appoint them? And can defendants choose (or fire) their court-appointed lawyers?

Who Gets a Court-Appointed Attorney?

Not everyone who goes to court is entitled to a free lawyer. Individuals and businesses who sue each other in civil court for damages (money) don't get court-appointed attorneys. Some low-income parties in civil cases (like evictions and public benefit disputes) get free counsel through legal aid and pro bono representation, but the government isn't obligated to provide it. People hauled into court for minor traffic infractions (like speeding tickets) don't get free lawyers either.

The government does, however, have a constitutional duty to appoint attorneys for people (adults and juveniles) charged with misdemeanor and felony crimes if they are:

  • legally indigent (see below), and
  • facing a potential jail or prison sentence.

How Do I Get a Court-Appointed Attorney?

In a typical case, courts appoint lawyers for eligible defendants at their first court appearance, usually an arraignment. Defendants who want court-appointed counsel must:

  • ask the court to appoint a lawyer, and
  • provide information under oath about their income, assets, and expenses.

Courts frequently use questionnaires (like this federal financial affidavit) to determine whether a defendant financially qualifies for a court-appointed attorney.

Each jurisdiction has its own rules about who qualifies as indigent. For example, federal law simply requires the court to appoint counsel whenever a defendant is "financially unable to obtain counsel." (18 U.S.C. § 3006A(b).) Florida defines "indigent" as a "person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to the person or the person's family." (Fla. R. Crim. P. 3.111.)

Courts might also consider the complexity of the case when deciding whether a defendant is eligible for court-appointed counsel. For example, a judge might find that a nurse who earns a high hourly wage can afford to hire a lawyer in a simple drug possession case, but not in a complex and serious drug trafficking case.

Defendants have the burden of convincing the court that they can't afford to hire an attorney. Courts can investigate the accuracy of defendants' financial eligibility questionnaires. Consequences for providing false information range from the defendant having to reimburse the government for the cost of counsel to facing perjury charges for making materially false claims under oath.

Can Defendants Choose Their Own Court-Appointed Attorneys?

Defendants who qualify for court-appointed counsel don't get to choose an attorney and have the government pay for it. Instead, courts appoint:

  • the public defender's office (or sometimes a nonprofit community defender organization), or
  • a private attorney who takes indigent defense cases on a contract basis.

Most states have public defender offices. All public defenders are fully licensed lawyers who get paid by the government to fulfill the government's Sixth Amendment duty to provide assistance of counsel.

In states that don't have public defender offices, courts appoint private attorneys who contract (agree) to represent indigent defendants at government expense. Each jurisdiction that employs contract attorneys (also called "panel attorneys") has its own system of appointing and compensating attorneys.

Even in jurisdictions that have public defender offices, courts sometimes have to appoint panel attorneys when the public defender's office can't take a case due to a "conflict of interest." A conflict of interest isn't a personal rejection of a defendant. Conflicts arise when an attorney's ability to zealously represent a defendant could be impaired by their past or present ethical duties to another client (such as a co-defendant). In these cases, judges appoint the public defender to represent one defendant and a panel attorney for the other(s).

Will I Have to Pay Court-Appointed Attorney Fees?

In most states, "free" lawyers aren't exactly "free" and often come with some costs for defendants. For example, many jurisdictions require defendants to pay a registration fee (like $50) at the beginning of a case to get a court-appointed attorney. At the end of a case, defendants might be required to reimburse the government for part or all of the cost of court-appointed counsel if the court finds that a defendant has the financial resources to do so.

Critics of these fees say they discourage some defendants from exercising their right to a lawyer and frustrate court-appointed attorneys' ability to build trust with clients. For instance, a defendant who fears having to reimburse the government at the end of the case might choose to enter a guilty plea rather than go to trial. Some states, including California, have eliminated public defender fees and other criminal fees for these reasons.

What If I Don't Like My Court-Appointed Attorney?

Some defendants worry that the adage, "You get what you pay for," is true of free lawyers. Others worry that court-appointed attorneys are more loyal to the government that signs their paycheck than to their indigent clients. This distrust (rarely justified), compounded by the stress of facing criminal charges, can lead to conflicts between defendants and their court-appointed attorneys.

Defendants can almost always hire a lawyer to replace court-appointed counsel. The court will likely give the new attorney time to get up to speed. But convincing a judge to fire a court-appointed attorney and assign a new one is much more difficult. Judges will not grant such a request based on a personality conflict or general frustration with the system. Defendants typically must prove:

  • communication with their court-appointed attorney has completely broken down, or
  • inadequate or ineffective assistance of counsel (for example, the attorney has failed to investigate or raise appropriate legal motions).

Instead of seeking judicial intervention, defendants might get better results by talking to their court-appointed counsel first and then, if the problem persists, by contacting the attorney's supervisor. In rare cases, the supervisor might assign a different public defender without involving the court.

Talk to a Lawyer

If you're under criminal investigation or charged with a crime, don't make any decisions about your case without talking to a lawyer. If you don't think you can afford to pay for a criminal defense lawyer, you should ask the court to appoint one for you. You will need to provide information about your income, assets, and expenses. If you qualify, the court will appoint a public defender or panel attorney for you. Court-appointed attorneys are on your side and can help you get the best possible outcome in your case.

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