Criminal Defense: Public Defender Or Private Criminal Defense Attorney?

Charged with a crime but can’t afford to hire a “real lawyer?” Afraid the “public pretender” will sell you out? Countless criminal defendants face this dilemma every day.

So pervasive is the distrust of public defenders that defendants routinely max out their credit cards, take out second mortgages, and empty their retirement funds just to hire a private criminal defense attorney. Should you do the same? It all depends on who you plan to hire.

Paying a private defense attorney is no guarantee of quality representation. Any warm body with a law degree can hang out a shingle and call himself a criminal defense attorney. In fact, many of those who can’t get a job at the public defender do just that. Your private attorney could turn out to be a bottom feeder, with poor academic credentials and little or no criminal defense experience. With a private attorney, you get your choice of lawyers, but will you choose wisely?

Public defenders are criminal defense specialists. They practice criminal law every day, and gain experience quickly due to heavy caseloads and a sink or swim mentality. They are surrounded by colleagues and supervisors whom they can learn from and consult with. Private attorneys, by contrast, generally have no supervision or quality control. Moreover, to survive financially, many private attorneys have little choice but to accept any client that walks in the door. One day your attorney is an immigration lawyer; the next he’s a divorce lawyer. For you, he’s all about criminal defense. Lawyers who do a little bit of everything are usually not particularly good at anything.

Public defenders develop an intimate knowledge of the particular court in which they practice. While private attorneys practice in many different courts, public defenders generally stay in the same court all day every day. They know the judges. They know the prosecutors. They become courthouse insiders who are able to predict how the judges will rule in your case and who know exactly what to say to a prosecutor to get the best deal for you.

Finally, public defenders typically have extensive trial experience. More cases lead to more trials. In addition, unlike those who hire private counsel, it costs indigent defendants nothing to take their cases to trial. As a result, public defenders go to trial far more often than private criminal defense attorneys. That experience helps in plea negotiations and may be critical if your case actually goes to trial

Despite all the institutional advantages of the public defender, there remains a risk that your particular public defender will be what is not so affectionately known as a “dump truck.” It is these lawyers who give public defenders a bad name. They may be overwhelmed by high caseloads, burnt out from too many years in the trenches, or perhaps they simply lack the make-up necessary for criminal defense work. Whatever the reason, these lawyers do little more than help prosecutors obtain guilty pleas. What’s worse, it is almost impossible to fire your public defender and get a new one.

A private criminal defense attorney will almost always be able to devote more time to your case and give you more personal attention than a public defender can. In the end, however, it is the quality of the attorney rather the cost of the representation that matters. Almost without exception, the best private attorneys are former public defenders. There is simply no substitute for that training and experience. Before you spend money you don’t have hiring a private attorney, consider giving the public defender a chance. Not only could you do a lot worse if you choose the wrong private attorney, but your public defender may well be a future star of the private criminal defense bar.