Criminal lawyers in the US

I’ve been working in an Irish criminal law office for a couple years, and it’s made me curious about the US system and the distinction between “public defenders” and private criminal lawyers.

Here, we don’t have public defenders as such. If a defendant can’t afford their own lawyer, the court will assign their case to a solicitor on the Legal Aid panel. These solicitors are all privately employed; they get paid in Legal Aid cases by filing a claim with the State. Though they have private clients too, the large majority of their work (and income) comes from Legal Aid, because most of the people who are prosecuted for criminal offences are from the lower end of the income scale.

As far as I know, all the major criminal defence lawyers in Ireland are on the Legal Aid panel. It simply wouldn’t be economical to only take private clients - there aren’t enough of them to earn a big lawyer’s salary from. So if you’re a defendant with a big salary, when you “go private” you’re going to go to the same lawyers that the poor defendants go to - anyone else isn’t going to have the expertise that they have, because they’ll be doing criminal defence on the side rather than as the main focus of their practice.

So what I’m wondering is how it is in the US that the “good” criminal lawyers are the private ones, who (if I’m understanding the US system correctly) only have clients that can afford to pay for them. How is it that these lawyers get enough clients to develop the expertise they need to be better at criminal defence than the public defenders, who are in there all day, every day? Do wealthier people get prosecuted more in the US? Is the income threshold for a public defender so low that nearly everyone has to go private? Is it a self-reinforcing system where people think public defenders are so bad they pay to go private even if they can’t afford it and thereby give private lawyers more work? Or is there something else that I’m missing entirely?

Canada appears to have a similar system to Ireland - there’s a legal aid fund, and lawyers work for it. Some do it for social good, some do it because they need the business, etc. For particularly high profile cases, prominent lawyers may do it for free for the publicity they get.

I don’t know how different Ireland is, but perhaps you underestimate the number of privately paid lawyers handling criminal cases. There are a lot of cases where relatively prominent individuals find themselves entangled in the law and end up blowing all the family assets on a lawyer, plus going significantly into debt. Pus, a lot of younger offenders, the parents will foot the bill to ensure a good defense.

The problem is, lawyers cost money. Legal aid funds save money by reducing the number of hours they will pay for a case - so typically the lawyer on legal aid has insufficient time to prepare for the case, and must do extra for free or provide a less well prepared defense. In a lot of cases, private investigation by the lawyer’s office is not covered. Also, many civil actions - divorce, custody, etc. - the legal aid fund won’t cover.

Id depends how much of a lawyer’s caseload comes from Legal Aid cases - since it pays crap, the younger newer lawyers tend to be the ones who take the most legal aid cases and, needing the money, have more cases and less time to spend on each case. (IIRC the lawyers in some Canadian provinces have gone on “strike”, either refusing to take new cases or threatening to, due to the low pay rates.)

As I understood it, some places in the USA have taken this to the logical extreme. It’s easier to simply hire some lawyers for a very low pay, on salary rather than piecework, overload them with cases, than to beg the existing law community to spend part of their time for crap pay rates defending the poor. Once the defender is an employee, you can dump ever larger numbers of cases on him, and then accuse him of incompetence if he fails to keep up. Naturally, the people who sign up for the crappiest job, other than a few do-good community organizer types, are the worst lawyers unable to find jobs with higher pay and better career paths.

(There’s a L&O episode where they arrange for a defendant to get the crappiest lawyer in the public defender’s office. The guy is totally lost when it comes to court procedure for a murder case, never having tried anything more serious than a burglary.)

For starters, I don’t believe every jurisdiction in the US has a “public defender” or a contracted equivalent and even in those that do, a fair amount of cases are assigned to private attorneys who are then paid by the state. For example, in my area, the Legal Aid Society has a contract to provide “indigent defense” but they can only represent a single defendant on each case. They can’t represent the defendant if they previously represented the victim. In the past, they didn’t take homicide cases ( although I’m not sure if that’s still true). Those cases are generally assigned to private counsel. The income limit is not so low that nearly everyone has to go private, but it is low enough that a working defendant charged with assault, driving while intoxicated, possessing drugs , etc will probably have to go private (although it’s possible Legal Aid may represent those people if they take a plea at arraignment).

Plenty of defendants believe do believe that private lawyers are better,even though that’s often not true (and when it is , it’s often because the defendant is wealthy enough to pay for things that Legal Ad doesn’t have the resources to provide)

In my area, plenty of criminal lawyers do not earn that big a salary. Sure, some of the famous ones do but not nearly all of them. They do okay, but they don’t have offices in some big , expensive high rise like you see on TV. They have storefront offices a few blocks from the courthouse.

My area generally has public defenders under contract. It’s a part time gig, and these lawyers also maintain private practices. Those spots are hard to get in the extremely tight legal market here. People that hold them aren’t giving them up, and there’s a waiting list for future openings. However, non-contract lawyers can get appointed in situations where there are multiple defendants in a case.

I’m on the waiting list for a felony public defender spot in my home county. I just recently got appointed on some juvenile cases–which are heard in a different court. The pay isn’t great, but it’s money I would not otherwise be earning.

I also get some appointed work as a Guardian ad Litem in abuse/neglect cases from a neighboring county.

Well, the firm I work for is one of the leading criminal defence firms in Ireland, and what I have seen there isn’t reflected in what you’ve written. I suppose it could be all the other firms getting the private clients, though that strikes me as unlikely, and I certainly haven’t noticed it when I’ve been in the courtroom myself - Legal Aid pretty much seems to be keeping this entire sector of the profession afloat. It also isn’t the case here that it’s mostly the younger newer lawyers doing Legal Aid cases.

There was a walk-out here over cuts, though - here is an article about it. Note that it says the walk-out was supported by “all the major criminal law firms” in Dublin - because they all rely on Legal Aid.

That sounds a bit more restrictive than the scheme here, so that may well be one explanation.

There are some very good public defender agencies in the U.S., with experienced and professional attorneys. D.C., Alaska, and Seattle come to mind. Still, you are correct that some of the very best attorneys are private and do not generally do indigent defense. They very likely got their start that way, however. In addition, one reason they are “better,” is that they simply have more time to devote to any particular case. Even the best public defender agencies have large caseloads.

It is my opinion that in the US you’re better off with an “average” public defender than an “average” private defense attorney. In my area, most private defense attorneys don’t do a very good job, and most public defenders are quite good. There are, of course, numerous exceptions.

But you repeat yourself…

In my area, my impression is that for a given case, a private defence attorney probably has a somewhat better chance of actually getting a case dismissed at trial. However, that’s only part of an attorney’s job. The perhaps more important part is telling you how strong your case is and helping you decide whether it’s a good idea to go to trial or not in the first place. With the huge volume of cases the PD’s office has seen, they’re generally in a much better position to tell you how likely your case is to actually succeed in that particular court and what kind of plea offers, etc, you’re likely to get from that particular prosecutor. They’re sometimes accused of being too plea-happy, but for most people charged with the minor crimes the PD office handles in-house, pleading IS their best option. Many private attorneys are going to tend towards the other extreme, because that means more billable hours.

They are not necessarily better, but they do have the opportunity to devote more time to their cases. A lot of my friends are public defenders and most of them simply do not have the time to work all of their cases, and that inevitably leads to lots of guilty pleas just to get cases out of their workload (the dirty secret of the American justice system). A few of them have burned out and set up shop doing private criminal defense because it’s less hectic, but that comes with a pay cut (and they ultimately end up taking a number of indigent cases anyway, through state contracts).

Other private criminal defense attorneys used to be prosecutors. Lots of trial experience = good advertisement when you switch to doing private criminal defense work.

What’s the income limitation there? Does almost everyone except the actually wealthy qualify - if so, that’s probably a big part of the explanation.

It’s very similar around here. There is a public defender’s office that represents indigent criminals. However if there are multiple defendants or a previous representation of the victim, the state will appoint private attorneys in those cases.

The pay isn’t nearly what a private client would pay, but it helps supplement your income, and the work is steady.

Moderator Note

BrotherCadfael, professional jabs like this are against the rules in General Questions. No warning issued, but don’t do this again.

Colibri
General Questions Moderator

Things are different in different parts of the States.

Some places have Public Defenders Offices, where the defense attorneys are salaried government employees.

Other places use appointment lists, like what you’re describing.

The difference, I suspect, is that in the States, funding for indigent defense is a very low political priority, so it get very little funding.

Where I live, there’s an appointment list, like what you’re describing. But lawyers are paid on a per-case basis, rather than hourly. So, for example, if he’s appointed on a misdemeanor DWI a lawyer might get paid $200. A paid lawyer, on the other hand, may charge $3000 for the same case.

If a lawyer has business expenses, like an office, for example, or a receptionist or a telephone, or any kind of advertising or marketing, it doesn’t make economic sense to take appointments, unless you plan to spend less than a couple of hours on them.

So appointed lawyers have a perhaps deserved reputation for not spending a lot of time on appointed cases.

Public Defenders, on the other hand, are salaried, but their caseloads may be overwhelming. I wasn’t able to find a quick stat on the national average number of cases per PD, but I saw references to caseloads in the hundreds. Obviously, if you have several hundred cases at any given time, you’re not going to be able to remember everybody’s name, much less the details of all their cases.

According this article, the average PD has about 50% more work than he can do in a given year.

There’s always money for police, prosecutors, and jails, but - in the US - funding for indigent defense just isn’t there.

IAA Canadian L, who does a lot of work under Legal Aid, and I’ll set the record straight as far as Canadian Legal Aid goes.

First of all, there is no “Canadian Legal Aid.” It is handled at the provincial level, so it is more correct to say, Legal Aid Alberta," or “Legal Aid Ontario.”

Legal Aid does limit hours spent on a matter, but extensions to the hours can be granted. Just ask, and if you have a good enough reason (e.g. going to trial), an extension will be forthcoming.

There is plenty of time to prepare for a matter; and if there isn’t, I just have to ask the other side for more time. Such will be granted most of the time, under professional ethics. The only times I have not been granted an extension is when the other side is self-represented, and figure they can get a default. No problem; I just go into court and ask the judge. If I have a good enough reason, the judge grants an extension.

Private investigation? Never had to do it, and don’t know why I’d need to.

Legal Aid covers divorce and custody. In fact, those, plus criminal matters, are Legal Aid’s bread-and-butter. If you want to sue the mechanic who screwed up your car, Legal Aid won’t help; but if your freedom is at stake (criminal) or if your kids are going to be taken away (family), Legal Aid will help you.

Nonsense. Some long-established practitioners take Legal Aid work–not all, but some; and some younger lawyers never touch a Legal Aid file. Some of all stripes may do it for a bit, or do it for longer, or do it piecemeal; and some do nothing but and still manage to make a living at it.

The pay is crap? Compared to what? Flipping burgers? Doing M&A on Bay Street? Being a hotshot computer programmer? All is relative. As far as I’m concerned, Legal Aid pays just fine. Sure, it would be nice if it was more, but I will say this: it pays a damn sight more than any job I ever had before becoming a lawyer. So I’m happy with it. (Actually, it pays about the same on an hourly basis as a hotshot computer programmer.)

And I will require a cite for the lawyers going on strike owing to Legal Aid’s low pay rates. Be aware that no Canadian lawyer in any province is forced to take Legal Aid matters. You sign up for it, and you know exactly what you’re getting into, pay-wise. If you don’t like it, you quit Legal Aid, or you just don’t sign up.

I’ve been intimately involved with two cases - both complex - from start to finish - and plenty more on not as detailed a level.

On the state level - the PD in question simply did not have time to spend on any real cases. He handled 350 the year prior and took 10 cases to trial. He won half of those. Keep in mind that the state/Feds have enormous leverage. It is almost always “let’s make a deal”. I’m not sure how much work was put in on the case - there was lots of pressure on the PD, but he appeared to do very little. I’m talking maybe four phone calls with the defendant - who wrote numerous letters - and the prosecution had about 40 witnesses show up the day of trial - and the PDs lack of effort made it implausible & too risky for anything other than a plea deal. I would guess he spent maybe 5-10 hours MAX on the case. This was probably in the top 10% of cases in terms of complexity - and only cause the defendant was basically planning on going to trial until the other two defendants caved on the day of trial.

On a federal case - it was completely different. Ok - it was me - and I REALLY didn’t do it. It was also an extremely complicated case. He actually met me when I was first bright in before the court (and initial conditions were set). I had numerous in person meetings and telephone calls. He actually came to my apartment - with an investigator (like a PI, but only worked for their office I think). He also got a technical person (computer forensics) as well as hired a polygrapher. I had hours long telephone conversations and he spent I have no doubt at least 100 hours on the case. He remembered even the smallest details and was the sharpest lawyer I had ever met. He often would explain his rational behind moves he was making - and I was impressed. We went on a ride with the PI guy to various locations in multiple counties so he could get a feel for everything. He had flows charts and stuff. Even bought me breakfast one time. He told me his case load - and had some great stories - I am not sure the exact number he told me - I think it was either 60 or 45 a year.

He kept me updated all the time and some really weird things happened. His brother happened to be a writer for a magazine I won’t mention. He was in a certain place - and actually overheard some of the agents involved talking about my case (it was a very unique set of facts). There was other stuff like that - like - well let’s just say someone who worked for the other side - shall we say - sent me something by mistake (have to be vague here, but imagine something was supposed to go to a lab - and they mailed it to me by mistake). It was kind of like that. We didn’t do anything unethical - and something else happened that rendered that problem moot. He ended up convincing them of their mistake - they dropped the case - with prejudice - and gave me back every single thing they had seized.

Anyway - my codefendant was unfortunate - in that I got to the Public Defenders office first. He was appointed an attorney, but I think they wouldn’t give him a PD cause it was a conflict or something. So he was on a list of volunteers (who still got paid, but not much). He was awful. No home visits, long phone calls, flow charts. He knew virtually nothing about the case and was only trying to get a deal. Codefendant was probably technically guilty of something - and ended up pleading guilty, but the case was so ridiculous - that while he was facing the possibility of 75 years - he got 45 hours of community service (or close to it - don’t remember the exact number, but think it was ~ 45).

If I was ever arrested - or knew someone who was - in the Federal System - I walk run to the Public Defenders office. I could tell that they are dedicated public servants - and give a shit and try their best AND have resources to do so. I can’t think of any case off hand I wouldn’t use them for - except maybe complicated securities fraud - or massive, massive drug king pin stuff (and I might still use them for that). I would even pay for them to represent me.

On the state level - I do know quality public defenders and have had lunch with a couple while watching cases. I remember one I’d run into - maybe saw her a dozen times in court. She’d tell me stories how shed use her own money to get defendants a dress shirt to court to cover up their tattoos in court. I saw her represent this one guy in a jury trial - they had him on video, fingerprints, eyewitnesses, and an almost confession (don’t remember - but it was bad). As you can imagine the state wasn’t really willing to cut him much of a deal (I found out later) - so he thought what the hell - might as well take a chance of getting off - vs guaranteed 14 years vs maximum 15 years (I think it was numbers like that).

After I saw/heard the States opening statement - I thought - holy shit - what the hell is she going to do. She basically got up there and did her best to kind of say - hey - yeah they got lots of stuff, but they don’t KNOW it’s him and it won’t meet the test for reasonable doubt. Something like that.

I made some smart ass comment about her having gotten pretty unlucky with that one - and we joked about it. She really did care about the role of a zealous defense in an adversarial system. She unfortunately didn’t have the resources or time to give everyone as much time as she needed. She moved to a different county and I think I only ran into once after that. She said it was great as before she had no time - and was representing people accused with rape and murder that needed time - and now she had more time - and was getting cases like fishing without a license (I think she was working felonies only before - and then was doing both at the new place, but not sure).

Anyway - I have no doubt she could do a good job, but wouldn’t have the time in the first county, but would in the second. I still think she’d be stuck on resources. I’d find out what the average case load is - if you are dealing with hundreds of felony cases a year - you need a private attorney if you are going to try and plead not guilty - go to trial.

As someone else mentioned - the one thing the Public Defenders have that works in their favor is experience on what is a good deal. But many private attorneys can call and get this info from a friend who works in the Public Defenders office. I got the impression from the Federal Public Defender - that they often answered questions of this nature from private attorneys - especially ones court appointed - as federal cases are relatively rare - so even most private Criminal Attorneys aren’t doing many federal cases.

If the case is straight forward - and you aren’t looking at much time - you might be better off with a public defender. But I would not use (if I had a choice) an attorney taking 300+ felony cases a year in the state system, but it would depend on the county.

I have sat and watched in court - and I’ve been more impressed with the private attorneys at the state level. I also saw some awful ones as well. I’m guessing they weren’t specializing in criminal law, but they got hired cause it is a friend of the defendants uncle or something.

In other words - I think you get a sort of minimum level of competence with the state public defenders (in many cases).

If you ever need to know - you can learn a lot from just sitting in court observing that jurisdiction. Of course if you REALLY need to know - you might not be able to :slight_smile:

Oops - I kinda droned on.

TLDR - in the federal system - very few attorneys are going to be specialized enough to have the experience to match a federal public defender

At the state level - it is going to vary dramatically based on case load - and how much they allocate on resources. In my area - it’s an extremely small amount of cases taken to trial - so the Public Defenders aren’t necessarily going to have a lot of experience with actual jury trials. I tend to think people are more likely to hire a private attorney when they want to go to trial (yeah I know this is based on income, but relatives pay and stuff).

So I’m guessing - with no real proof - that a private criminal attorney takes a greater percentage of cases to trial than a public defender. This may be cause if Aunt Judy doesn’t think Bobbie is being offered a good deal by the state - she will hire him an attorney (who will have either told aunt Judy & Bobby ahead of time - hey I think it’s a good deal you should take it OR I can do better).

There actually isn’t an income limitation per se - the judge makes the decision with a large amount of discretion, taking into account your income and the seriousness of the consequences of conviction, along with any other extenuating circumstances. For most offences they will tend to err on the side of granting rather than not granting it (road traffic offences being the major exception). It isn’t granted on a “billable hours” basis, but for court appearances, prison visits and expenses.

I suppose it also makes a difference that the workload is spread out a lot more than it seems to be in places that primarily use public defenders, and that for serious charges the Legal Aid Board will fund two lawyers (a barrister as well as a solicitor). The legal education system, which means that all the law firms have very low-paid trainees to do the solicitors’ donkey work for them, probably also helps.

Anyway it’s been really interesting to read how these things actually work in the US (and Canada) - thanks everyone :slight_smile:

yes, I know a lot of items - legal aid, health care, drivers licenses, liquor laws, etc. - are provincial not federal in Canada, but in a forum like this I generalize to “…in Canada.” Quite often the broad situation is the same in most provinces, except maybe Quebec. Apologies for the oversimplification. Unless it’s radically different across the country, I assume that for example, government services in Bavaria, Lower Silesia or Sicily are somewhat similar to other areas of their respective countries too. The USA seems to be the major exception in many regards with non-federal jurisdictions and this board seems somewhat America-centered.

A quick google about Legal Aid - I know I heard about some situations in the news-

http://lawstudents.ca/forums/topic/27706-legal-aid-workers-strike-in-bc/
… to protest underfunding.

So Legal Aid may be fine by some lawyers’ standards, but it also seems some of their colleagues disagree. This seems no different than doctors compensation under Candian (provincial) medicare, which has seen recurring disagreement over rates escalate into various boycotts or “strikes” over the years. If there’s a way to go cheap by cutting payouts, governments everywhere (federal and provincial and state) will try it until the people affected complain loud enough.

More about the Ontario Legal Aid boycott:

To be fair, that was 2009 - I assume the government has seen the light?

It was more a homage to Mark Twain, but, you’re right – I didn’t check the forum before posting.

Those colleagues are under no obligation to take Legal Aid files. As I said, no lawyer is forced to take Legal Aid files; thus the argument that “they’re working for much less than they should be” is hokum. If a lawyer agrees to act under Legal Aid, they know exactly what they’re getting into under Legal Aid’s tariff. In no province is a lawyer obligated to take Legal Aid cases. A law firm’s policies may differ, but no lawyer will be disbarred if he or she does not take Legal Aid cases.

It’s quasi-government, if you prefer to look at things that way. The provincial Law Societies are independent of government, but they also fund Legal Aid.

I’m not in Ontario, so what the Globe and Mail says about Ontario’s Legal Aid doesn’t affect me. And lawstudents.ca is more a place for law students at Canadian universities to bitch about courses and professors.

The matter of R. v. Whelan illustrates a good point: that a judge can order more than the Legal Aid tariff mandates. But that’s a trial, which always requires a lot of time in preparation, and the lawyer representing Whelan can request additional funding from Legal Aid; which is almost always granted if a matter goes to trial. Similarly, the judge can order additional funds paid to Whelan’s lawyer. All he or she need do is ask.

Heck, for that matter, I could make an application to the court to order you to stand on your head and spit quarters every morning. If I have a good case, supported by affidavit, and you have no defense, guess what happens? You stand on your head and spit quarters every morning, by court order.

MD2000, have you ever practiced law in a province of Canada? Serious question, yes or no?

If you answer “No,” perhaps you ought to refrain from answering Canadian legal questions.