Whether criminal defendants are appointed counsel or they hire their own lawyers depends primarily upon their financial ability to pay. It is generally assumed that the poor get less competent lawyers with fewer resources than those defendants with the means to pay. This stereotype is often real. However, there are many reasons why it is not always true. This article explains the differences between retained and appointed lawyers.
A key difference between appointed and retained counsel in criminal cases is that only defendants who pay their attorneys have a right to choose them. The choice of a retained lawyer is protected by the Sixth Amendment to the US Constitution. See United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). Denial of a defendant’s chosen retained counsel is fundamental error, requiring no showing of harm for reversal. Id. at 149–51. The exceptions to that rule are actual conflicts of interest, counsel’s refusal to be retained, or when the lawyer may not legally practice in the jurisdiction. Wheat v. United States, 486 U.S. 153, 159 (1988). Judges also have latitude to deny last-minute substitutions of retained counsel that delay trials. Gonzalez-Lopez, 548 U.S. at 152.
Alternatively, no particular appointed counsel is guaranteed to defendants. The Supreme Court rejected a defendant’s right to a “meaningful attorney-client relationship” in Morris v. Slappy, 461 U.S. 1, 13–14 (1983). In that case, the defendant’s hospitalized public defender was replaced with another one from the same office only six days before trial. Based on that ruling, many courts of appeal have upheld the denial of appointment of a requested lawyer, even when the lawyer had been representing the defendant for a significant time. See, e.g., United States v. Parker, 469 F.3d 57, 58 (2d Cir. 2006).
The idea of choice among appointed counsel certainly has merit. The United Nations’ International Covenant on Civil and Political Rights supports the implementation of client choice of counsel in a criminal justice system. It also has been tried successfully before. Scotland employs a system in which clients can choose between a fully funded public defender or private counsel. The real worry is not the general concept of choice, but how it is applied. A court appointment system that is underfunded and overworked offers no good choices, regardless how those appointments are decided.
Some judges will grant a defendant’s request for a particular appointed lawyer out of convenience or in an attempt to pacify them. There is no prohibition of the practice. However, some feel an accused person does not deserve the luxury of choosing their attorney at government expense. Two former members of the Supreme Court indicated that view is unfair. See Morris, 461 U.S. at 22 (Brennan, J., concurring) (“[there] can be no equal justice where the kind of trial a man gets depends on the amount of money he has”). Ironically, many jurisdictions require defendants to pay a fee for receiving appointed counsel or require reimbursement for attorney costs once a case is disposed. Yet, regardless of those payments, the defendants get no input into who represents them.
Besides philosophical opposition, the practice is generally avoided because such a system is more difficult to implement. See Gonzalez-Lopez, 548 U.S. at 155 (Alito, J., dissenting) (“[T]he right to be represented by counsel of choice can be limited by mundane case-management considerations.”). For instance, the procedure would need to balance the benefit of an expeditious appointment of counsel with the desire to give defendants time to make an informed choice. Slowing the former can delay the progress of the case. Rushing the latter can make the choice a mere facade.
In a large jurisdiction, with hundreds of appointments a day, making a system of choice run smoothly could be complicated. However, it is not beyond possibility that a procedure could be automated so that indigence may be presumed based upon available financial information and approved lawyers would then be listed by matching the charged offenses to counsel deemed competent to handle their seriousness and complexity. Attorney choices could be made from that list. In other words, the solution is probably algorithmic.
In 2017, the Texas Indigent Defense Commission funded a study by the Justice Management Institute about allowing defendants to choose their appointed counsel. M. Elaine Nugent-Borakove & Franklin Cruz, The Power of Choice: The Implications of a System Where Indigent Defendants Choose Their Own Counsel (Mar. 2017). The experiment occurred in Comal County, near San Antonio, Texas.
The survey had some shortcomings. It lasted only a year in a jurisdiction of less than 1500 criminal appointments annually. The county had no institutional public defender, so the only choice for defendants was among private attorneys who took court appointments. The basis to choose was merely a list of the attorneys and their contact information. The result was that the attorneys who had positive word-of-mouth reputations filled up their calendars with requests and the other defendants got the remaining lawyers. Therefore, while the conclusion suggested some slight improvement in the outcomes and relationships between clients of the “chosen” lawyers, that result might be attributed to the unavailability of the better appointed attorneys to defendants who merely accepted the judge’s selected lawyer to represent them.
While the choice of retained counsel may be constitutionally protected, it is not necessarily an easy decision. Unless someone (or, in many cases, their family) has ties to the criminal legal system, objective information about attorney quality is not particularly accessible to the average person. A visit to a state bar website is likely only to display whether a lawyer is currently licensed and if they have a publicly available disciplinary history. If they advertise or host a website, the bar places some restrictions on what they may claim, but puffing one’s reputation and ability is generally tolerated.
Hiring a lawyer is most fraught when the case is very serious or complicated. Capital cases cost up to millions of dollars to properly defend. The most qualified capital lawyers work at government expense and are appointed by the court. Even if a private lawyer were willing to be retained in a capital case for little payment, they also would need to invest their own time and money just to meet the most basic demands of such a case. Absent a millionaire client, it would typically be irresponsible to be hired in a capital case.
Similarly, cases in federal court are often in better hands with assistant federal public defenders than lawyers who only occasionally practice there. The laws and rules are different than local state practices. Much depends on sentencing guidelines that are complex and arcane to those who are not fluent in them. There are many good private federal criminal defense lawyers, mostly in metropolitan areas, but they can be expensive even for defendants who are not poor.
Another choice a defendant has is whether to represent oneself. Such an arrangement has traditionally been disparaged. A common saying is that a defendant who is his own lawyer has a fool for a client. Additionally, judges and prosecutors dislike facing pro se defendants, who typically do not know the rules and thus may not follow them.
However, self-representation is constitutionally protected, albeit with some procedural barriers. Defendants seeking to represent themselves must face questioning by a judge to make sure the choice is both intelligent and voluntary. Faretta v. California, 402 U.S. 806 (1975). If they are competent to proceed in their case, then they are also generally competent to decide whether to waive counsel. Godinez v. Moran, 509 U.S. 389 (1993). However, the right to refuse counsel does not apply to direct appeals and such a waiver may occur only at a court’s discretion. Martinez v. Ct. of App. of Cal., Fourth App. Dist., 528 U.S. 152, 163 (2000) (“The requirement of representation by trained counsel implies no disrespect for the individual inasmuch as it tends to benefit the appellant as well as the court.”).
Most jurisdictions do not recognize hybrid counsel, in which both defendant and counsel are advocates. See United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981). Kentucky has a state constitutional right to hybrid counsel. See Major v. Commonwealth, 275 S.W.3d 706, 718 (Ky. 2009), corrected (Mar. 10, 2009).
One solution at trial is called “stand-by counsel.” See McKaskle v. Wiggins, 465 U.S. 168, 176 (1984). An appointed lawyer sits with the defendant and can whisper advice, but only if that assistance is requested by the defendant. Defendants who go pro se cannot later argue they received ineffective assistance of counsel because it is deemed to have been waived. Id. at 177, n.8.
Sometimes lawyers will offer free advice or “ghost write” a pleading for a pro se defendant, but this can create attorney-client relationships with attendant ethical duties for lawyers. See, e.g., DeFrances v. Bedell, 446 S.E.2d 906 (W. Va. 1994). Both stand-by counsel and the restriction on pro se direct appeals indicate that judges would prefer to deal with appointed lawyers chosen by the court rather than unrepresented defendants.
There are also junctures in criminal proceedings at which courts have found no constitutional or statutory rights to counsel exist and therefore attorneys are not appointed. Such defendants either pay for a lawyer or get none, unless attorneys intercede without an appointment. Some public defender offices have programs to advise clients prior to formal charges in order to address these gaps in appointment authority.
The right to counsel first attaches at the initiation of adversary proceedings. Rothgery v. Gillespie Cnty., Tex., 554 U.S. 191 (2008). It applies at all “critical stages” of trial. Marshall v. Rodgers, 569 U.S. 58, 61 (2013). Although a wealthy person might hire a lawyer if there is even a possibility of a criminal investigation, the poor often wait in custody for representation until after probable cause to arrest them has been determined and bail has already been set. Only one federal court has said an initial bail hearing is a critical stage of trial at which there is a constitutional right to a lawyer. Booth v. Galveston Cnty., 2019 WL 4305457 (S.D. Tex. Sept. 11, 2019).
It also varies by jurisdiction when and where a right to counsel is honored. New York gives defendants the right to appear and testify to a grand jury. N.Y. Crim. Proc. Law § 190.50 (McKinney). Therefore, a right to counsel exists when they so testify. People v. Kirk, 275 A.D.2d 983 (2000). If defendants cannot afford lawyers to advise them at the grand jury, then they are appointed. See People v. Corona, 567 N.Y.S.2d 353, 354 (Sup. Ct. 1991). Most other jurisdictions allow neither the right to testify at the grand jury nor an accompanying right to counsel.
The federal constitutional right to counsel disappears once a case has been disposed in the trial court, except when there has been a conviction and the defendant seeks to appeal as a matter of right. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). There is no constitutional right to counsel for discretionary appeals or post-conviction writs of habeas corpus. Appointment in habeas cases is discretionary with the courts. Typically, if post-conviction appointments are made, there is also a procedure for attorney compensation. See, e.g., 18 U.S.C. §3006A(a)(2)(B).
If defendants are acquitted or their cases dismissed, no lawyers are appointed even if the law allows them to expunge the prior proceedings from their records. Only those with means can hire lawyers for such essential procedures unless pro bono services are available. See James M. Anderson et al., The Effects of Holistic Defense on Criminal Justice Outcomes, 132 Harv. L. Rev. 819, 821 (2019). Those seeking clemency by pardon or commutation by the president or a governor also have no right to appointed counsel. Sometimes, appointed counsel consider it their duty to seek expunctions or clemency, and occasionally courts will compensate them, but that is the exception rather than the rule.
Speaking at an American Bar Association Summit on Indigent Defense in 2013, Supreme Court Justice Elena Kagan said that criminal defendants do not have a right to a “Cadillac lawyer,” but they do deserve a “Ford Taurus defense.” The line was not completely original as there has been a history of comparing lawyer quality to various automobiles. However, this was probably the first time the Ford Taurus was used as the metaphor: a car that was described by one reviewer as having an “unresponsive transmission.” A version of that car was purchased by many law enforcement agencies as patrol vehicles. Since a similar connection to the police would compromise the effectiveness of a defense attorney, the championing of the Taurus defense was an even less apt aspiration.
Despite setting a low bar for the quality of counsel, Justice Kagan’s analogy is a fairly accurate portrayal of what is legally permitted. The Supreme Court held that even if a criminal defense counsel’s representation was deficient, it still must be shown that the defendant was actually prejudiced by that performance. Strickland v. Washington, 466 U.S. 668, 691–96 (1984). Therefore, such famously inadequate cars as the Edsel, Pinto, or Yugo are acceptable comparisons for minimum attorney caliber as long as they do not literally injure their passengers.
It is important to note that whether a defendant has been prejudiced by counsel’s performance is a retrospective analysis, often raised in post-conviction writs of habeas corpus years later. That means trial judges can chance appointing less-than-stellar counsel by relying on the sports maxim of “no harm, no foul.” In jurisdictions lacking sufficient qualified counsel, unfortunately, the entire process of appointments might come to a halt if such risks are not taken.
Beyond the action or inaction by individual lawyers, Strickland’s greatest deficiency may be failing to account for systemic failures, such as a jurisdiction’s lack of funding. The primary case creating the right to appointed counsel, Gideon v. Wainwright, 372 U.S. 335 (1963), has been criticized by many legal commentators as an unfunded mandate upon local governments. Although there is case law finding that overloading and underfunding public defenders can violate the Sixth Amendment’s right to effective assistance of counsel, those remedies involve systemic change, not overturning individual convictions. See, e.g., Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122, 1127 (W.D. Wash. 2013) (“The point here is that the system is broken to such an extent that confidential attorney/client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned.”).
Another issue to review among the various forms of counsel is malpractice liability. As a matter of federal law, there is little difference between appointed and retained lawyers. Neither have any form of immunity from lawsuits. See Ferri v. Ackerman, 444 U.S. 193, 205 (1979) (“appointed defense counsel is akin to that of private counsel and unlike that of a prosecutor, judge …”). States vary and some will grant qualified immunity to public defenders, dismissing most cases by summary judgment. See Laughlin v. Perry, 604 S.W.3d 621, 630 (Mo. 2020). However, even in states and federal courts that do not accord such immunity, the burden for defendants is high. Typically, they need to show they would have been exonerated in their criminal cases absent the attorneys’ deficiencies. See J. Vincent Aprile II, Exonerating Criminal Defense Attorneys from Civil Malpractice, 34 Crim. Just., Spring 2019, at 42.
Both retained and appointed lawyers can have problems getting access to necessary resources. Retained lawyers can attempt to give the same quality representation to all clients, but this is tempered by the clients’ ability to pay. Besides paying lawyers for their time, clients must foot the bill for any additional costs like investigation, experts, even copying and binding briefs. Private lawyers also have overhead that individual public defenders do not pay for, including rent, services, and employees.
If clients cannot pay retained lawyers enough to cover those items, those lawyers must choose between paying themselves less or omitting needed resources in their cases. In rare situations, courts may pay for an essential item like a transcript or a psychiatric examination even when the defendant hired the lawyer, but otherwise case expenses are worked out between lawyer and client. Insufficient funds inevitably lead to weaker representation despite the lawyers’ best intentions.
Therefore, retained but underpaid lawyers may sometimes have less access to resources than even overloaded appointed attorneys. Paying just enough to retain attorneys without sufficient experience or resources can put defendants in worse positions than those who have lawyers appointed to them. Choice of counsel may give clients a sense of control, but it does not necessarily mean they will be better represented.
Appointed lawyers have different issues with funding than those that are hired. Expert costs are one such comparison. A fully funded public defender office can budget for expert assistance based on its projected number of cases and its history of using experts and their costs. If the office is underfunded, or its lawyers must petition the court for funds, that reduces their ability to plan ahead or pool funds.
Private appointed counsel must make those requests individually to judges presiding over their cases. This adds an additional level of scrutiny by judges, who may be parsimonious or will second-guess the need for such help. All jurisdictions have some statutory authority about how to obtain case-related funding from the court for the defense. See, e.g., 18 U.S.C.A. § 3006A(e). Constitutionally, the main authority about defense expenses is Ake v. Oklahoma, 470 U.S. 68, 78–79 (1985). It was directed specifically at the right to a psychiatrist to assist in an insanity defense, not defense expenses generally.
One federal appeals court said that regarding nonpsychiatric experts, “[a] fair reading of Ake would lead the judge to balance the private and public interests at stake with respect to this expert.” Bergman v. Howard, 54 F.4th 950, 958–59 (6th Cir. 2022), cert. denied, 143 S. Ct. 2445 (2023). In other words, it is largely in the discretion of the trial court, based upon local statutory authority, whether defendants get court-appointed experts, investigators, or other resources, beyond appointed psychiatrists supporting an insanity defense, as in Ake.
Therefore, an appointed lawyer will need to convince a judge that a requested expert meets that balancing test. A similarly situated retained lawyer must instead have a solvent client. Both lawyers will be required to show the testimony is admissible under the rules of evidence.
There are many assumptions made about the quality of retained versus court-appointed criminal defense attorneys. They are not always true. Having both wealth and good advice when contemplating hiring a lawyer is ideal. More often, clients have both limited funds and scant information. They may have only enough money for an inexperienced lawyer and nothing to pay for investigation and expert assistance. However, they do get one thing that clients who are appointed counsel do not—the sense they chose their lawyers and that they work for them. It would be best if all criminal defendants had a say in who represents them and an assurance it will be competent counsel with access to all necessary resources.
