The Right to Counsel

When Charged with a Criminal Offense

The Sixth Amendment to the United States Constitution

Lei-Chala I Wilson, Esq.

Law Offices of Lei-Chala I. Wilson, Chula Vista, CA (San Diego County)

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The Assistance of Counsel Clause of the Sixth Amendment provides “that in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense”. It was applied to the states through the Due Process Clause of the 14th Amendment in 1791.

The assistance of counsel clause includes 5 distinct rights: the right of counsel of choice, the right to appointed counsel, the right to conflict-free counsel, the effective assistance of counsel, and the right to represent oneself.

Essentially, you have a right to an attorney of your choice when charged with a criminal offense. If you are unable to afford an attorney (private counsel), then the court will appoint an attorney to represent you. You also have a right to represent yourself unless the court finds you are incompetent or unable to be sufficiently versed in the law to waive the right to counsel.  Usually not a good choice, but not be addressed in this article.

The United States Constitution sets the minimum requirements that states must meet.  However, states such as California, have gone beyond the minimum standards and have gave more rights to citizens than the constitution requires in criminal prosecutions and other areas of the law.

What is the difference between Private Counsel, Court Appointed and Public Defenders?

Private Counsel

You can hire a private counsel/attorney of your choice. Understand that their services are not free unless they would agree to take your case pro bono. Normally, private criminal defense attorneys work under a retainer agreement before they are formally representing you and can represent you in court on the record in court Although you can agree to an hourly rate, most private counsel do a “flat fee” to take on your case and paid before the taking your case. Some private counsel may agree to a payment plan. Criminal defense attorneys, unlike most notably in personal injury cases, and other practice areas, are prohibited from doing cases on a contingency fee basis at the present time. However, the practice of law is changing- especially since we are in a pandemic and the advancement of ALSP – Alternative Legal Service Providers.

Your private counsel may have previously been a prior deputy public defender, prosecutor or an attorney who practices only in handling criminal cases or additionally handles civil matters.

Advantage: You may get more attention (hand holding and able to reach after business hours) with a private attorney because of their availability depending on their level of practice and cases they are currently handling.

Disadvantage: They are not free, can be expensive depending on the seriousness of your case and whether it is a misdemeanor or felony, whether it is a case that can be settled or ultimately proceed to trial. The private counsel may or may not have as much experience in handling criminal cases depending on their legal background. Some attorneys may have entered the practice of criminal defense without prior experience handling criminal case, such as right after graduating from law school after being licensed by their state bar.

Public Defender

The Public Defender offices owes their existence to the 1963 US Supreme seminal case Gideon v. Wainwright, (372 US 335 (1963)). In an unanimous decision, the Supreme Court established that the Fourteenth Amendment creates a right for the criminally accused who are unable to pay or afford their own attorney have the right to have the state appoint an attorney on their behalf when charged with a criminal offense where Life or Liberty is in jeopardy.

The public defender can be appointed by the court to represent you. Your attorney will be a deputy public defender or court appointed.

In other states they may not use the designation of the Public Defender. For example, in New York City it is the Legal Aid Society Offices, which is equivalent to deputy public defenders in California, who are assigned cases for those unable to afford as attorney.

Deputy public defenders (DPD) only handle criminal cases once appointed by a judge at the arraignment (when you are advised of your formal charges). They are in court almost daily but know the deputy district attorneys and judges and how the system works. DPD are not allowed to handle private cases while employed as a DPD which is under the jurisdiction of the county. They are supervised and regularly trained with legal education.

There are two other offices that you may get appointed to when you are unable to afford private attorney. There is the Alternate Public Defender (APD) and Office of Assigned Counsel (OAC) also sometimes called a panel attorney. Other counties may have a different designation for multiple offices.  The other offices are used usually when there are multiple defendants in a case or if the Public Defender or Alternate Public Defender declares a conflict of interest. For example, the conflict of interest can arise when a victim or witness in the case is a current or previous client of either office. There is a myriad of other reasons that one of the offices may have a conflict of interest and unable to represent you.

Those in the OAC are in private practice and may take exclusively cases from the panel after appointment by the court, have their own private practice where they take both criminal cases and civil matters. The judge appoints the office but not the actual attorney who handles each case. That responsibility is up to the individual office with the supervisor who assigns the cases based on legal experience, availability and the attorney’s case load.

Advantage: Depending on your income you may have to reimburse the county for legal fees which is nominal compared to hiring a private attorney. The cost is fixed by the court depending on whether the case is a misdemeanor or felony, nonviolent, a serious or violent felony. The court will also consider waiving those fees based on your ability to pay after filing a financial declaration at the conclusion of the case or after a recommendation of the probation department who has interviewed the client/defendant at the time of sentencing if a probation report was ordered by the court.

Disadvantage: Deputy public defenders are usually in court a lot so do not expect to call and always get over to them. You can always call their office and ask for the supervising attorney if you have any pressing matters or concerns. In any event, your case it still being handled. You do not have the right to choose which deputy defender you want – it will depend on the complexity of the case and who is available at the time you are assigned one. On the other hand, deputy public defenders don’t get to choose their clients. They represent all defendants once assigned by the court.

Court Appointed

In comparison, every deputy public defender is court appointed, but not every court appointed attorney is a deputy public attorney. Some court appointed attorneys may be on a panel that the court chooses from when the public defender is not able to take a case due to multiple defendants or a conflict of interest.

Advantage: The costs for a court appointed attorney is minimal in comparison to hiring a private attorney. if you are unable to afford a private attorney. Like the Public Defender the costs are set by the court.

Disadvantage: You may not know what their skill level and they be handling civil cases as well. But they normally have been vetted to handle cases depending on their criminal law experience. Some may have been prior deputy public defenders and deputy district attorneys who are now in private practice.

Caveat

The above discussion is simplistic and based on my experience in California, San Diego, as a Deputy Public Defender for 24 years and now in private practice. California has 58 counties, and each county system may be different as to how one is represented when they are assigned a Public Defender or Court Appointed Attorney.

In California, at the arraignment (which is when you are formally advised of the charges that have been filed by the prosecuting agency) there are deputy public defenders assigned to the courts to advise you. You can usually continue your arraignment to come back with a private attorney to handle your case or keep the public defender and substitute a private attorney in later.

You should also consider that we have 50 states and not all states adhere to the above. All states do not have a public defender system and may rely on court appointed attorney who may or may not have the requisite experience or skill set to handle your case. And there is also the issue of whether the criminal justice system is adequately funded, and clients may be represented by someone who has never handled criminal cases.

Legal Disclaimer- No Legal Advice Intended

This article is not a solicitation for legal services. The above article does not represent legal advice to those who read this and ii is only for informational purposes. I am not giving out legal advice but just giving a simple primer on how the system works due to my experiences. The law is always evolving and this  information in this article may have changed by the time you read it so it may not reflect the most current legal developments. No reliance should be taken in reliance on the above information. And stated above there are various jurisdictions that handle criminal defense matters differently. Please consult an attorney for any advice you may need.