All about Court Appointed Lawyers
If you have just begun the process of litigation, or have recently found yourself in need of legal assistance, you may very well end up with a court appointed lawyer. In divorce proceedings this typically occurs when the parties can.t afford to hire a lawyer. This can also happen in guardianship proceedings on the court.s decision that it is in the best interest of the person being guarded. The court must also appoint you a lawyer if you are a criminal defendant and cannot afford a private attorney. The process by which these lawyers are assigned is very random. Many times they have no current relationship with the judge. In Monroe County, for example, lawyers are chosen from a computer generated random list of lawyers who have applied to be on the panel for that specific area of practice. That list is provided to the court for their selection. All practicing attorneys in Monroe County are eligible to be on this list. In Orleans County the attorneys are assigned in a manner decided by the court at the time of the equity, criminal or guardianship calendaring meeting. The assigned attorney is not paid by the litigants, so there is no retainer required and you do not need to worry about how much is spent on your case. This is one of the most difficult things about a court appointed attorney. He/she can spend as much or as little time on your case as they feel necessary. They are paid a set fee per hour for time spent (which is capped at $75 per hour in Monroe County). Most times the court appoints attorneys to the panel specifically because they are very knowledgeable in that area . A court appointed attorney may have the same level of experience as a high priced attorney, costing you far less. Your court appointed lawyer only has a small amount of time to devote to your matter. They may spend a few hours the very first time they see the case, but they must follow the law, and make sure that all of your rights are protected. The courts understand that the lawyer cannot possibly know all of the details of your life within a few visits, so do not be surprised if they miss some information. Be honest with your court appointed lawyer, because this will help him or her help you. They need to know everything that you want done on your behalf so that if possible, they can take care of it. If they find out some significant detail after you’ve already told them everything, it is extremely difficult for them to go back and correct whatever was brought to their attention. In addition, the court appointed attorney will not be on any other cases. Most lawyers have more than one court appearance per scheduled hearing date. An attorney will get notice of the next court date the same day as you do. The court appointed lawyer is going to work for your interests, as they do not represent the other party. They will fight if needed so this can take some time. Sometimes you will be put off for a while because the facts are very complicated and they need time to figure out what to do. Court appointed lawyers have a lot of experience, and they are typically familiar with the judge and court’s mannerisms which helps them help you.
Qualifications and Experience
Requirements vary from state to state, but most often, court appointed lawyers are individuals in good standing with the state bar association where the proceeding is being heard. Each state’s bar association has its own requirements for members, but the general requirements for admission into the practice of law in each state include: completion of law school with a Juris Doctor degree, admission to practice by passing the state bar exam, and demonstrating good moral character.
Almost all states require court appointed lawyers to have additional experience representing individuals before courts and in particular, before the court in which they will hear appeals. Most of these attorneys are private practitioners, although some states do appoint as counsel staff attorneys for a court or public defenders. Certain states also have local appointed lists of attorneys who have met minimum experience requirements, such as having represented defendants at trial and in other appeals. A small number of states—like New York—provide an automatic right to counsel on appeal, and each district appoints its own qualified attorneys to the individual cases. One state even requires its indigent defense counsel to be members of an organization that provides additional training and resources. California also appears to have extensive training and educational requirements for court appointed counsel for appeals.
Although there are not many empirical studies out there that compare the quality of court appointed lawyers to private advocacy, this author was able to find an overly broad Canadian article that compared the two. The article concluded that essential qualities of good advance notice and timely delivery of the assignment of an appellate case did influence quality—preferably at least five working days in advance of the deadline. The knowledge and experience for those lawyers on the private roster of appellate lawyers were found to be the most advantageous to help ensure quality representation for indigent clients.
Benefits of Court Appointed Lawyers
When a Judge appoints your lawyer, there are several advantages. First, the Court Appointed Lawyer has experience. Court Appointed Lawyers spend their days in the Courtroom. Ideally, they have experience in the specific type of case that your case is in the Court’s capacity to deal with. They should be familiar with the local Court procedures and Rules. They have experience with the Judges in the Court. They know the Court personnel who assist the Court.
Court Appointed Lawyers are not working on a contingent basis. They are obligated to represent your best interests no matter how long the case takes or how difficult it is to resolve. They do not look at taking cases on a contingent basis as a source of income. They take the case to do the right thing; they take the case to help people who lost their way. They are not in it for the money, so you do not need to worry about them walking away from handling the case for you for financial reasons.
Challenges Often Encountered
Common Challenges Faced by Court Appointed Lawyers
One of the biggest gripes that people have with court appointed lawyers is that they are always busy and can never spend enough time on their case to really develop a solid defense strategy. They also are hamstrung by their limited case loads, which in some jurisdictions can be as many as 40-50 open files at any given time. They also lack the resources that private attorneys have. While there are certainly exceptions to this rule, the general consensus among lawyers is that public defense attorneys simply do not have the money or staff needed to explore alternative strategies like private attorneys do.
Many courts are absolutely swamped with public defense hearings and trials. In some areas, public defenders have to divide their time between a courthouse where they handle arraignments and other low level matters, and another court house that deals with serious felony cases. Some public defenders spend so much time engaging in plea negotiations and other court appearances that they only have moments to work on important legal research, brief writing, and trial preparation. They are often forced to balance their time between multiple court appearances in different courthouses, meet with their client, and research major constitutional issues simultaneously.
Ironically, though, there are a few things that make public defense attorneys better at handling matters for their clients. First, they are very accustomed to trial work. Since a public defender goes to trial every day, they are mindful of the rules of evidence, and constitutional law that relates to criminal proceedings. A private lawyer who isn’t familiar with these issues may not remember the intricacies involved with, for example, whether the defendant should waive the jury versus have the case decided by a judge. To public defense lawyers, these issues are second nature. Also, many public defenders have been practicing for years. They start trying criminal cases before they even get to law school. So they will often have a level of experience that far exceeds that of a recently graduated private lawyer.
Finally, evaluation of court appointed lawyers is often politicized. If you are unhappy with your lawyer, you should speak with the judge about your dissatisfaction. If the judge believes that your complaints are valid, he or she may transfer your case to a different defender. Of course, it would be better if such a transfer were done discretely, without alerting the public defender’s office that they have incurred the ire of one of their clients. The reason for transferring the case secretly is because the public defender’s office is often politicized; and these transfers can strain working relationships between judges and the public defender’s office.
Ultimately, the point of this discussion is to make you more aware of issues that arise in the court room every day. There are no perfect criminal defense lawyers; whether the lawyer is public or private. No one can know every single issue, or learn every rule of law that is applicable to your case. If you are unhappy with your lawyer – whether they are public or private – speak up. Your voice might just be the difference between winning and losing your case.
Contrasting with Private Counsel
When I finally hired my own private attorney, I could compare him to the court appointed attorneys I had had before him. In the beginning, I thought the court appointed attorney was alright. He fought for me on some of the smaller issues, and I think he was respectful of my rights in general. He was not bad with regards to the criminal charges; however, he would tend to overestimate the evidence he had against me, and underestimate the evidence I had in my favour.
Conversely, the private attorney actually explained things to me, which made me nervous to some degree because he told me some things that made me feel like I had no hope. However, he explained my situation to me in a manner that clarified my mindset considerably. The main problem was that the court appointed attorney didn’t seem to care about what happened to me once I was charged, whereas the private attorney really impressed upon me that I was facing serious jail time if convicted , and that he would do his best to prevent that from happening, but that he could only do so much.
However, I will say that the court appointed attorney did have his strong points. My private lawyer came up against problems with the police at the time of my arrest, and this cost us valuable time in the beginning, as the police refused to release key documents. My private lawyer had to go and get a judge to order the release of those documents. On the other hand, the court appointed lawyer seemed to carefully sit on the fence. Nothing significant had yet occurred and he didn’t seem like he would interfere with the "system" until things got serious.
So overall, the private lawyer had more access to all of the information and could explain the pieces of my case to me, whereas the court appointed lawyer seemed to be content with following the system.
Client Experiences and Case Results
Client experiences with the lawyers provided through the court’s roster of lawyers vary widely with some clients saying they had a very fine experience (but maybe not as good as if they had paid for a lawyer on their own) and others saying that their experiences included lawyers that appeared disinterested in their cases and did not listen to them. The role of the court appointed lawyer is different than the role of a lawyer hired by a client. Traditionally, the lawyer hired by a client, sometimes referred to as a "retained" lawyer, is hired by the client and is paid to represent the client’s position. The court appointed lawyer is, at least theoretically, not an advocate for his or her client but is rather there to ensure that the process is fair and the proper rules are followed. In practice, at least from the client’s perspective, the duties of the court appointed lawyer may vary with the complexity of the issues involved. Often, the more elaborate the presentation of the issues, the more the court appointed lawyer is involved in the representation. The less complex the case, typically the less the lawyer participates as the advocate of the client’s position.
If the areas of disagreement among the parties are limited, it is common for clients to feel that the court appointed lawyer was not fully attentive to the issues in the case. If the areas of disagreement are substantial, the clients tell us that the court appointed lawyer actively works to advance the client’s interests. For example, we have heard clients say that they felt the court appointed lawyer reviewed trial balances and financial information and was very hands on during the exchange of financial information. We also have had clients tell us that they felt their court appointed lawyer did nothing during the litigation to advance their positions and, in fact, did nothing to advance the proceedings at all.
The time commitment of the court appointed lawyer can vary significantly among cases. We have had clients tell us that their lawyer attended lengthy depositions in which thousands of documents were reviewed and presented to the court. We also have had clients tell us that their court appointed lawyer appeared at the hearing and either did not address the issues or did not prepare any written submission or presentation to the judge at all. Sometimes, the judge tells the lawyer what is desired and asks the lawyer to prepare something related to that issue. Other times, the parties have spent a great deal of time developing the facts on the issues, the lawyer will ask to review the materials to ensure that the lawyer is then prepared to address those issues in court. Our anecdotal experience is that the more the parties, under the guidance of their regular lawyers are able to get to a narrow set of issues for the court to decide, the more the court appointed lawyer becomes involved in the process. There is no question that the more substantive effort provided by the parties’ lawyers, the less is required of the court appointed lawyer in providing factual analysis for the judge.
Although our anecdotal information would suggest that the involvement of the court appointed lawyer increases with the more complex and high dollar issues or problems in the divorce, we cannot say that statistically, the outcome of the case varies with the extent of the issues being dealt with. In one recent case of significant complexity, the court appointed lawyer attended the motions, wrote the memorandum and resolution for the judge and charged for that time. In another case that was far more simple, the court appointed lawyer did very little during the litigation.
In the end, the court has the discretion to deny fees requested from the marital estate, order the parties to pay their own fees or apportion the fees between the parties. So, even if the court appointed lawyer does far more work than the regular lawyers, there is still the possibility that some portion of the fee might be denied. One court, in a very high dollar complex case, refused to grant the full amount of the request for attorney’s fees by the court appointed lawyer. In that case the court said: "While [the court appointed lawyer] did excellent work and made a very important contribution to the resolution of this matter for all parties concerned, the court is unwilling to reduce the distributive award and increase the maintenance award paid by the Husband for the purpose of financing [the court appointed lawyer’s] fee in full. While the court is requiring the Husband to pay his own fees, it is requiring him to pay a portion of [the court appointed lawyer’s] fees. The court finds that it would be inequitable for the court appointed lawyer to be required to finance the litigation of the parties, and the court will not require (as a percentage of the total fee awarded . . . .% of the fee awarded be reimbursed from the distributive award. With the court appointed lawyers who have been questioned, not one was willing to take the position that because of any failure by the court, the court appointed lawyer should have his or her fees paid by the clients. In short, the court appointed lawyers, while their work may be extensive, remain in the role of an impartial officer of the court.
Refining the System
While court appointed lawyers may face an uphill battle when it comes to ensuring a livable wage, there are many groups fighting to improve the system from a macro-level. In 2006, the American Council of Chief Defenders (ACCD) was able to get the U.S. Department of Justice to make a grant of $1.6 million to be used for the development of model guidelines to provide indigent defense and implement them nationwide. Back in 2005, the National Legal Aid & Defender Association released a report on improving the effectiveness of indigent defense with the support of the US Department of Justice. The report made specific recommendations for large-scale policy changes. Recommendations included the establishment of a national commission dedicated to improving the process.
Funding for indigent defense has been a growing concern for all of its advocates. The Conference of Chief Justices created Guidelines for the Effective Provision of Defense Services (Guidelines) in 2002, which provide recommendations for law firm-style public defender offices and private bar and contract systems. The Office of Justice Programs’ Bureau of Justice Assistance and the U . S. Department of Justice have identified insufficient funding as a major problem.
Nationally, the U.S. Department of Justice and the Bureau of Justice Assistance funded various initiatives during fiscal years 2002 through 2004 to assist states and localities in assessing their state indigent defense systems and undertaking reform efforts. In 2005, the Bureau of Justice Assistance began to replicate that process on a larger scale, to include funding of pilot state assessments and the development of model systemic assessment, resource allocation, workload study, and case weighting and time-motion analysis tools.
As funding continues to improve and more guidelines continue to be established, court appointed lawyers at the very least will have more support in making their case for why they should be compensated in the same way as private attorneys. Without both parties involved in the legal proceedings having the same quality of representation, there is the risk of reducing the quality of justice for all and reinforcing the idea that those with money are afforded more rights than those without.