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Are You Entitled to a Court-Appointed Attorney?

If you have been charged with a serious criminal offense and lack the resources to hire legal representation, you may be entitled to a court-appointed attorney. The right to an attorney in criminal proceedings is enshrined within the Sixth Amendment to the U.S. Constitution. However, it was not until the 1963 Supreme Court case of Gideon v. Wainwright that the law established the right to free legal representation for criminal defendants who are unable to afford a lawyer and face the possibility of incarceration.

Defendants who meet the criteria are assigned either full-time public defenders or lawyers appointed by the court and paid by the hour. In either case, these attorneys typically handle an enormous caseload and have limited resources for each client.

See Getting Free or Low-Cost Legal Help to explore additional options, even if you do not qualify for a court-appointed lawyer.

Criteria for a Court-Appointed Attorney

The justices in Gideon unanimously held that "in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." However, the Court later clarified this ruling, making it apply to cases where the defendant is charged with either a felony or a misdemeanor which could result in imprisonment from a conviction. This rule also applies to juvenile delinquency proceedings.

There are some limited exceptions to the rule, including:

            - defendants who are mentally ill or developmentally disabled;

            - children; and

            - in some cases involving child custody or child protection.

To determine whether you qualify based on income level, you may have to gather financial documents and prove to the judge that you lack the funds for a private lawyer. However, some courts may take you at your word (for example, homeless individuals lacking such documentation). Counties may determine eligibility for a public defender in a number of different ways, but your ability to afford a lawyer typically is based on your income and expenses. Some judges may ask you to get estimates from as many as three private attorneys before approving the assignment of a public defender.

See How to Obtain a Court-Appointed Defense Lawyer for more information.

Working with Court-Appointed Counsel

Public defenders and private lawyers appointed by the court typically have very large caseloads, so they may not have the same amount of time to spend on your case that a privately paid attorney would. However, it also should be noted that since public defenders work on so many cases, they typically know the prosecuting attorneys and judges quite well, and can use this to the advantage of their clients.

As with private attorneys, public defenders are legally obligated to zealously defend their clients' interests. Also, despite the fact that public defenders and court-appointed lawyers are paid by the same entity that pays the prosecutors and judges (the government), they work for you.

You may be represented by the same defender throughout your entire case ("vertical representation") or you may have different defenders handling different phases of your case ("horizontal representation"). While vertical representation provides continuity and familiarity, horizontal representation often involves the use of the most senior-level defenders for the more serious phases of a case.

See FindLaw's Public Defenders by State and State Legal Aid Resources pages for links to various legal services available to low-income individuals. Also, some private criminal defense attorneys offer free initial consultations and can help you get started with your defense, even if you are eligible for a public defender or court-appointed attorney.

Next Steps
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