FYI - Private Attorney vs. Public Defender - The Real Difference
Misconceptions- Public Defender
There are many misconceptions about the legal system that ought to be cleared up. One of the most pervasive and invidious is the common belief that lawyers from the various Offices of the Public Defender are "not real attorneys," or are "Public Pretenders." I would like to take this opportunity to dispell this misconception, and help my audience understand what they are getting when they hire a private attorney versus accepting a public defender, for those that are eligible for a public defender, but may also be able to hire a private lawyer.
The primary difference between Public Defenders and private criminal defense attorneys is the caseload. Public Defenders, in general, are very overwhelmed and have very high caseloads, sometimes approaching 200-300 cases per year. Such high caseloads are not within their control. County budgets fluctuate from year to year, and so do rosters. From my observations, an excellent public defender's office like the one in San Francisco or Alameda Counties are typically unable to reduce caseloads to a level on par with the private defense bar.
The benefit of a public defender is apparent. When a case can and should resolve quickly and efficiently, i.e., shoplifting cases, traffic cases, typical dope possession cases, etc., the public defender usually has connections with county support organizations, treatment programs, counseling, etc., that are usually farther removed from the private attorney's practice. Their experience with volumes of similar cases usually means that the least painful means of resolving a case will be available to you. Additionally, most public defenders are excellent trial attorneys, at least the ones that are experienced with trials. I have seen public defender trial deputies achieve spectacular results in very tough cases. You don't always get what you pay for.
The drawback to being represented by a public defender is that you do not generally get the attention that a good private attorney can give you. Due to budgetary concerns you will also not have access to all the investigators and experts to which a private attorney can connect you. Additionally, due to their limited time, there is the chance that some stones will not be turned.
Misconceptions - Private Attorney & The Retainer Agreement
The primary benefit of your relationship with a private defense attorney is the retainer agreement. A true retainer agreement will reserve 100% of the attorneys time to devote to your case, which is why retainer agreements are so expensive. A truly professional criminal defense attorney must balance the needs of his or her life with his or her professional obligation to each client. The private attorney is in a position to contract with a client at a price which can both maintain the lawyer's office at a professional standard, and allow the attorney to hire experts, investigators and other support professionals to shed light on a case that would otherwise not emit.
The flip-side of this relationship is an understanding that the private criminal defense lawyer should turn away cases, where taking on cases would cause the attorney to violate his or her duty under the retainer agreement (the duty to be totally available for the case and client). It means that that the defense attorney cannot be greedy and become overloaded. It also means that the client had better hold up his or her end of the bargain and post the monies required to handle the case from beginning to end. Thusly, professional integrity is assured.
In this day and age of price wars and capitalism, many criminal defense attorneys compete in the marketplace based on price. As such, some attorneys promise to resolve a case quickly and cheaply, sometimes for a few hundred dollars. Then, to make ends meet, the low priced private attorney is forced to increase his or her caseload, sometimes beyond a level that is ethically responsible.
Additionally, potential clients believe that attorneys are fungible like a market comodity, such that one attorney can get the result of another. Or perhaps, due to inexperience and lack of access to information, potential clients are not willing to risk significant money on an attorney without trying him out first or without referrals. In any event, the true retainer agreement, they way it was originally used, is becoming a thing of the past. In this case, it's not for the better. Attorneys are spreading themselves thinner, and clients are not receiving better representation than they would from the public defender.
The moral of the story is that if a person is accused and charged with a crime, and if he or she has assets, he or she should put of those assets toward the retainer agreement. By doing so, he or she has effectively reserved the lawyers time, skills and energy toward the successful resolution of the case. By pitting the attorney against other low-price attorneys, the client is reducing the value of his or her life, and, at the same time, losing mind-power and talent. If the client is unable to support the true retainer agreement, then the attorney should counsel the client on the lower cost options of resolving the case, and be specific in agreement about what will and will not be done on behalf of the client. Additionally, the client should not poo-poo about having to sell assets to retain the attorney. Remember, being charged with a criminal case is not like having to go the dentist or the dermatologist. It's more like having to undergo life saving surgery, and our society does not offer criminal defense insurance. Otherwise, the client should be counseled to seek out the Office of the Public Defender.
There are many misconceptions about the legal system that ought to be cleared up. One of the most pervasive and invidious is the common belief that lawyers from the various Offices of the Public Defender are "not real attorneys," or are "Public Pretenders." I would like to take this opportunity to dispell this misconception, and help my audience understand what they are getting when they hire a private attorney versus accepting a public defender, for those that are eligible for a public defender, but may also be able to hire a private lawyer.
The primary difference between Public Defenders and private criminal defense attorneys is the caseload. Public Defenders, in general, are very overwhelmed and have very high caseloads, sometimes approaching 200-300 cases per year. Such high caseloads are not within their control. County budgets fluctuate from year to year, and so do rosters. From my observations, an excellent public defender's office like the one in San Francisco or Alameda Counties are typically unable to reduce caseloads to a level on par with the private defense bar.
The benefit of a public defender is apparent. When a case can and should resolve quickly and efficiently, i.e., shoplifting cases, traffic cases, typical dope possession cases, etc., the public defender usually has connections with county support organizations, treatment programs, counseling, etc., that are usually farther removed from the private attorney's practice. Their experience with volumes of similar cases usually means that the least painful means of resolving a case will be available to you. Additionally, most public defenders are excellent trial attorneys, at least the ones that are experienced with trials. I have seen public defender trial deputies achieve spectacular results in very tough cases. You don't always get what you pay for.
The drawback to being represented by a public defender is that you do not generally get the attention that a good private attorney can give you. Due to budgetary concerns you will also not have access to all the investigators and experts to which a private attorney can connect you. Additionally, due to their limited time, there is the chance that some stones will not be turned.
Misconceptions - Private Attorney & The Retainer Agreement
The primary benefit of your relationship with a private defense attorney is the retainer agreement. A true retainer agreement will reserve 100% of the attorneys time to devote to your case, which is why retainer agreements are so expensive. A truly professional criminal defense attorney must balance the needs of his or her life with his or her professional obligation to each client. The private attorney is in a position to contract with a client at a price which can both maintain the lawyer's office at a professional standard, and allow the attorney to hire experts, investigators and other support professionals to shed light on a case that would otherwise not emit.
The flip-side of this relationship is an understanding that the private criminal defense lawyer should turn away cases, where taking on cases would cause the attorney to violate his or her duty under the retainer agreement (the duty to be totally available for the case and client). It means that that the defense attorney cannot be greedy and become overloaded. It also means that the client had better hold up his or her end of the bargain and post the monies required to handle the case from beginning to end. Thusly, professional integrity is assured.
In this day and age of price wars and capitalism, many criminal defense attorneys compete in the marketplace based on price. As such, some attorneys promise to resolve a case quickly and cheaply, sometimes for a few hundred dollars. Then, to make ends meet, the low priced private attorney is forced to increase his or her caseload, sometimes beyond a level that is ethically responsible.
Additionally, potential clients believe that attorneys are fungible like a market comodity, such that one attorney can get the result of another. Or perhaps, due to inexperience and lack of access to information, potential clients are not willing to risk significant money on an attorney without trying him out first or without referrals. In any event, the true retainer agreement, they way it was originally used, is becoming a thing of the past. In this case, it's not for the better. Attorneys are spreading themselves thinner, and clients are not receiving better representation than they would from the public defender.
The moral of the story is that if a person is accused and charged with a crime, and if he or she has assets, he or she should put of those assets toward the retainer agreement. By doing so, he or she has effectively reserved the lawyers time, skills and energy toward the successful resolution of the case. By pitting the attorney against other low-price attorneys, the client is reducing the value of his or her life, and, at the same time, losing mind-power and talent. If the client is unable to support the true retainer agreement, then the attorney should counsel the client on the lower cost options of resolving the case, and be specific in agreement about what will and will not be done on behalf of the client. Additionally, the client should not poo-poo about having to sell assets to retain the attorney. Remember, being charged with a criminal case is not like having to go the dentist or the dermatologist. It's more like having to undergo life saving surgery, and our society does not offer criminal defense insurance. Otherwise, the client should be counseled to seek out the Office of the Public Defender.