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Criminal Defense Lawyer FAQ

Here's what you need to know about criminal defense attorneys: whether you need one, how to get one, and how much you'll have to pay.

Are lawyers available for defendants who can't afford to pay for one?

The U.S. Constitution provides that you are entitled representation by an attorney if the state is trying to deprive you of your liberty. This means that a court may be required to appoint a lawyer to represent you for free or for a fee you can afford if the crime you are charged with carries a jail sentence.

Because most criminal defendants are unable to afford their own attorneys, many states have public defender's offices. Public defenders (P.D.s) are fully licensed lawyers whose sole job is to represent poor defendants in criminal cases. Because they appear daily in the same courts, P.D.s gain a lot of experience in a short period of time. And because they work daily with the same cast of characters, they learn the personalities (and prejudices) of the judges, prosecutors, and local law enforcement officers important information to know when assessing a case and conducting a trial.

In areas that don't have a public defender's office, the local government will often contract with private law firms to take cases for indigent defendants. Or, the courts will maintain a list of attorneys and appoint them on a rotating basis to represent people who can't afford to hire their own lawyers.

How can I get a court to appoint a lawyer for me?

Normally, if you want a court to appoint a lawyer for you at government expense, you must:

• ask the court to appoint a lawyer, and
• provide details about your financial situation.

Typically, your first opportunity to ask the court to appoint a lawyer for you will be at your first court appearance, normally called your arraignment or bail hearing. The judge will probably ask you whether you are represented by a lawyer. If you're not, the judge will then ask whether you want to apply for court-appointed counsel. If you say yes, some courts will appoint a lawyer right on the spot and finish your arraignment. Other courts will delay your case and appoint a lawyer only after reviewing and approving your economic circumstances.

Each state (or even county) makes its own rules as to who qualifies for a free lawyer. However, as a general rule, if you are judged to be indigent, and there is actual risk of a jail or prison sentence, the court must appoint free legal counsel.

If you don't qualify for free help but can't afford the full cost of a private lawyer, you may still obtain the services of a court-appointed attorney. Most states provide for "partial indigency," which means that, at the conclusion of the case, the judge will require you to reimburse the state or county for a portion of the costs of representation.

Do I need a lawyer at my arraignment?

In most criminal courts the arraignment is where you first appear before a judge and enter a plea of guilty or not guilty to the offense charged. Assuming you enter a plea of not guilty, which almost every defendant does at this early stage, the following steps also happen at the arraignment:

• the judge sets a date for the next procedural event in your case
• the judge considers any bail requests that you or the prosecutor make
• the judge appoints a lawyer for you, if appropriate, and
• the judge may ask you to "waive time" that is, give up your right to have the trial or other statutory proceedings occur within specified periods of time.

Most people can handle this proceeding without a lawyer. However, if you can get the court to appoint a lawyer for you without postponing the arraignment, or you are able to arrange for private representation before your arraignment, it's always better to have a lawyer. If you want to consult with a lawyer before your arraignment, or get representation, you can turn to Nolo's trusted Lawyer Directory to find a criminal defense attorney near you.

How can I find a private defense lawyer?

Recently arrested people should usually talk to a lawyer as soon as possible. Often, the most urgent priority is getting a lawyer to arrange a defendant's release and provide some information about what's to come in the days ahead.

If you have been represented by a criminal defense lawyer in the past, that is usually the lawyer to call assuming you were satisfied with his or her services. If you have no previous experience with criminal defense lawyers, you can look to the following sources for a referral:

• Lawyers you know. Most lawyers do civil (noncriminal) work, such as divorces, drafting wills, filing bankruptcies, or representing people hurt in accidents. If you know any attorneys that you trust, ask them to recommend a criminal defense lawyer. (Some lawyers who do civil work can also represent clients in criminal matters, at least for the limited purpose of arranging for release from jail following an arrest.)
• Family members or friends. Someone close to you may know of a criminal defense lawyer or may have time to look for one.
• Nolo's Lawyer Directory. Nolo offers a unique Lawyer Directory that provides a comprehensive profile for each attorney with information that will help you select the right attorney. The profiles tell you about the lawyer's experience, education, and fees. Nolo has confirmed that every listed attorney has a valid license and is in good standing with his or her bar association. Every attorney has taken a pledge to communicate regularly with you, provide an estimate of the time and cost involved, and provide you with a clear, fair, written agreement that spells out how they will handle your legal matter and how you will be charged.
• Referral services. Lawyer referral services are another source of information, but there is a wide variation in the quality of these types of services. Some lawyer referral services carefully screen attorneys and list only those attorneys with particular qualifications and a certain amount of past experience, while other services will list any attorney in good standing with the state bar who maintains liability insurance. Before you choose a lawyer referral service, ask what its qualifications are for including an attorney and how carefully lawyers are screened.
• Courthouses. You can visit a local courthouse and sit through a few criminal hearings. If a particular lawyer impresses you, ask for her card after the hearing is over, and then call for an appointment.

What is a private lawyer likely to cost?

It's impossible to give a definitive answer. Attorneys set their own fees, which vary according to a number of factors:

• The complexity of a case. Most attorneys charge more for felonies than for misdemeanors because felonies carry greater penalties and are likely to involve more work for the attorney.
• The attorney's experience. Generally, less-experienced attorneys set lower fees than their more-experienced colleagues.
• Geography. Just as gasoline and butter cost more in some parts of the country than others, so do lawyers.

A defendant charged with a misdemeanor should not be surprised by a legal fee in the neighborhood of $3,000-$5,000; an attorney may want $15,000-$25,000 in a felony case.

Most criminal defense attorneys want all or a substantial portion of the fee paid up front. Contingency fees (where the lawyer gets paid only if he wins the case) are not allowed in criminal cases. To find a criminal defense attorney near you, check out Nolo's trusted Lawyer Directory.

Should I represent myself in a criminal case?

The most obvious rule is that the less severe the charged crime, the more sensible it is to represent yourself. Defendants charged with minor traffic offenses should rarely hire an attorney, while defendants charged with serious felonies should rarely be without one.

The most critical piece of information in making a decision about self-representation is what the likely punishment will be if convicted. It is almost always wise to be represented by an attorney when jail time is possible. And remember, convictions for even seemingly minor offenses can carry hidden “downstream” costs, such as more severe punishment for a second conviction, increased insurance rates, loss or suspension of a professional license, and deportation of non-citizens. (To find a criminal defense attorney near you, check out Nolo's trusted Lawyer Directory.)

For more information, see Does Self-Representation in a Criminal Case Ever Make Sense?

Can I change lawyers if I'm unhappy with the one representing me?

Judges rarely grant a defendant's request for change of a public defender or other court-appointed lawyer. Disagreements between government-paid lawyers and defendants over strategic decisions are common and rarely are cause for a change of counsel. However, if in a serious case a schism between a lawyer and a defendant is so severe that a professional relationship is impossible, a judge may grant a defendant's request for new counsel. Incompetence of counsel is another possible basis of a change of counsel, but one that rarely arises.

On the other hand, defendants who hire their own attorneys have the right to fire them at any time, without court approval. A defendant doesn't have to show "good cause" or justify the firing. After firing a lawyer, a defendant can hire another lawyer or perhaps even represent herself. Of course, changing lawyers will probably be costly. In addition to paying the new lawyer, the defendant will have to pay the original lawyer whatever portion of the fee the original lawyer has earned.

Your right to change lawyers is limited by the prosecutor's right to keep cases moving on schedule. If you want to change attorneys on the eve of trial, for example, your new attorney is likely to agree to represent you only if the trial is delayed so the new attorney can prepare. The prosecutor may oppose the delay, possibly because witnesses won't be available to testify later on. In these circumstances, the judge is likely to deny your request to change lawyers.

For More Information

For answers to your questions about every part of a criminal case, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo). If you are looking for a criminal defense attorney near you, check out Nolo's trusted Lawyer Directory.