On the Effectiveness of Public Defenders, Court-Appointed Lawyers, and Privately Retained Counsel

by Jamison Koehler on April 29, 2010


Clients often don’t seem to understand the difference between public defenders, court-appointed lawyers, and privately retained counsel.  Who is your current lawyer, you ask the potential  client.  I don’t know, he says.  I think he is a PD.  Well, does he work for the PD’s office?  Or is he a lawyer on his own who was appointed by the court to represent you?  He has an office on D Street. Okay then, he is court-appointed.

A couple of days ago, a client asked me to enter my appearance in a case in which he was already represented by court-appointed counsel. I also made some calls this week to a public defender’s office in Pennsylvania on behalf of a woman who was thinking about retaining my services on behalf of her brother. Having recently worked as a public defender, it was interesting to be on this end of the interaction.  And, I have to say, I had mixed feelings in both cases about entering my appearance.

If a potential client who is currently represented by the Public Defender Service in D.C. or the Defender Association of Philadelphia calls me, I tell the client, yeah, I’d be glad to take your money if you want to hire me, but I would stick with the lawyer you have if I were you.  The PD offices in both cities only hire capable and committed people.  These people receive a tremendous amount of support.  And, if a bad lawyer should happen to slip through the rigorous vetting process, they have people to monitor the situation and fire the lawyer before any real harm can be committed. The system, for the most part, works.

This is not always true when it comes to court-appointed counsel. Yes, some of the best criminal defense lawyers I know in both D.C. and Philadelphia continue to accept court-appointments. I remember sitting in a Philadelphia courtroom, watching the status listing for a case in which Barbara McDermott had been appointed. McDermott is a first-rate lawyer. The defendant wanted to hire another lawyer – who was also there in the room – but hadn’t gotten all his money together yet to do so.   So McDermott was asking the judge for a continuance on his behalf.  None of us had ever seen this other attorney before. While well-dressed, he looked like he was right out of law school and didn’t seem to know what he was doing.

A couple of other PDs and I sat there with our mouths open when the defendant asked the judge to substitute this guy for McDermott.  So did the judge.  “Sir,” the judge said to the defendant.  “Are you sure you want to do this?  You have Ms. McDermott’s services for free.  And I call assure you that Ms. McDermott is a fine lawyer who will represent you very capably.”

That was an understatement.  But no.  The defendant insisted on the new lawyer, and eventually the judge relented and granted the continuance.  It was painful to watch.

But not all court-appointed lawyers are Barbara McDermott.  Many of them are right out of law school accepting court appointments until they can transition into purely private work. Except for minimal oversight by judges and the bar, there is no vetting of these lawyers. And an ineffective court-appointed lawyer can create an enormous mess for many clients before it finally comes to anyone’s attention.

So, again, I had mixed feelings about accepting these two cases.  In the first case, the defendant listed a number of ways in which he believed his court-appointed lawyer had failed him.  Even taking some of what he said with a grain of salt, I agreed with him.  I accepted the case.

In the second case, the case involving a public defender’s office in Central Pennsylvania, I called the public defender assigned to the case. He was initially wary when I first told him why I was calling. But he relaxed immediately when I told him I was a former public defender. He knew that I understood the drill. We talked through the case, and it quickly became apparent to me that he was on the top of the case and knew exactly what he was doing.

I called the woman back and told her that I thought her public defender was doing a good job.  If she didn’t agree, I was sure there are many fine lawyers in her area that could handle the case for her.  But it would be too expensive for her to have me travel up to Pennsylvania for every court hearing.  Besides, I wasn’t interested in taking the case.

Public defenders don’t always return your call the same afternoon.  And, to be fair, not all PD offices are great. I interned for one day during law school at a PD’s office in one of the surrounding counties outside of Philadelphia before quitting.  I was appalled by what I saw.  I also had a colleague who told me he had worked at two other public defenders before coming to Philadelphia.  This must have given you a leg-up on the other new lawyers in your class, I told him.  No, he said.  In fact, he had to get rid of some bad habits he had acquired elsewhere.

But when it comes to commitment, experience, and trial skills, the big city PDs are pretty hard to beat.  And they don’t cost you a thing.  If I were ever charged with a serious crime in Philadelphia, I would want a member from the Special Defense Unit there to represent me.

Theoretically at least, the marketplace should take care of the privately retained lawyers who aren’t up to the task. Lawyers who can’t handle client relations and who can’t get results won’t get referrals. They’ll quickly go out of business without any interference from the bar.

As for the court-appointed lawyers, with only minimal oversight by the judges, this is, as far as I can tell, a crapshoot.  You might get a rising star.  You might get a Barbara McDermott.  You could also get a lemon.

More like this:

Why I Like D.C.’s Public Defender Service

Firing Andrew Crespo

8 Comments on “On the Effectiveness of Public Defenders, Court-Appointed Lawyers, and Privately Retained Counsel

  1. The D.C. courts have recently overhauled the whole CJA list in D.C. You don’t think that these changes have fixed the problems with court-appointed attorneys you refer to? Aren’t you being kind of unfair to court-appointed counsel in D.C.?

  2. John T: Again, some of the best criminal defense attorneys that I know in DC still accept court appointments. I also know that a primary purpose of the recent reorganization of the system was to weed out some of the underperforming lawyers. At the same time, witnessing the performance of at least one court-appointed attorney there the other day, I couldn’t help wondering who had been left off the list.

  3. This subject always bothers me. It often seems that many “blawggers” are talking out of both sides of their mouth.

    “PDs are some of the hardest workers out there and many are excellent attorneys.”
    Compared to
    “PD offices are often overworked and unable to devote enough time to each individual case.”
    (I’m not attributing these quotes to you, Jamison, but I’ve heard them too many times from too many sources to ignore.)

    I work in Graphic Design by profession. And I’m pretty good at it, too. But if you give me an assignment with an unreasonable deadline, you won’t get a chance to see how good I can be. That’s the reality of my profession, along with every other profession out there.

    It almost seems that the takeaway is “PDs are great attorneys, but they’re so overworked that you’ll never be able to see how great they are.”

    If I’m sitting at the defendant’s table in shackles, I don’t care how good my defender COULD be, I care how good he/she WILL be. If the desire is to save face for the PDs out there, I can appreciate that. It’s unfortunate to see skilled attorneys given a bad rap because they’re overworked and not underskilled.

    But when it comes out in trial … the best attorney in the world won’t do well if he/she’s underprepared for a case because he/she’s overworked.

    Also: If you’re too poor to afford an attorney (and forensics expert!) and your court-appointed attorney has no experience with your type of trial, is there any recourse for having the judge select another attorney? (in Virginia, at least.)

  4. Welcome back, JW. I think you are about to overtake my sister and brother-in-law as my most loyal reader.

    As for your main point, I can only agree. I have tended to take the perspective of the overworked public defender when, as you suggest, I should really be looking at things through the eyes of the client whose fate lies in the hands of this overworked public defender. You’re absolutely right. An attorney’s potential doesn’t do the client a whole lot of good.

    As for your final point and question, you are usually stuck with the lawyer who has been appointed to you. You do have a constitutional right to the assistance of counsel but this doesn’t necessarily mean that the counsel is of one your own absolute choosing — unless, of course, you can afford to hire someone else.

  5. I’m honored. But actually, I think your posts over the past 2-3 weeks have gotten even better, and the last couple have been particularly comment worthy.

    Keep up the good work. I know I always appreciate the anecdotes about cases you had in the past. You’re a good story teller, I think. That probably makes you a good defense attorney as well. Not that a “story” has to be false, but when trying to convince a judge or jury, being able to transport the jury to another place and time and in a point-of-view that they find believable is crucial to victory.

    Of course, INAL. 😉

  6. The problems are real and still there. There is currently a CCAN appointed attorney who has assisted in stealing Social Security funds due her client and diverting them to her client’s mother; she has told her client she has court orders for his commitment which never existed; she has given false testimony and falsified documents. Yes, the problem is real and this system has a very long way to go to be corrected.

  7. If you’re overworked, how do you have time to blog? In 1997 I was arrested for DWI (DUI in most states), the officer said “I will make a deal with you, you don’t need to take the breathalyzer if you let us take your blood.” I think the officer knew I wasn’t drunk because later on I found out that the blood draw is a better indicator of alcohol intoxication. In this case I think the officer was being misleading (when I was attempting to walk the line, he wasn’t even looking, but gabbing with several of his cop buddies, however I think my court appointed attorney was much worse.

    The truth is I don’t drink, but I do have a record, the first thing the attorney told me was “If you have a record I won’t work for you”, so I responded by telling him some of things I had done. One thing, major thing, I forgot about, and on the way out I told his secretary and asked about it, he came out to his secretary and said “One more thing” His response was “It depends on whether or not I believe you and I believe you”

    On the day I was suppose to go to court, his office called me and told me not to go. So, I asked for something in writing to that effect, and the answer I got was that they’d give it to me tomorrow. I went to court anyway, I was on the roll that day and I checked to be sure when I went in. They gave me some information.

    The lawyer only talked to me twice, once in person when he was first appointed to be my attorney and after I faxed him a letter trying to give him more information about my whereabouts and what I had been doing the day I was arrested. What he did after the case was over (which I did not know) was call me up, and yell at me in the presence of my now late mother, for “lying” to him. I never lied to him, in fact if he had discovered something I forgot to tell him all he would of had to is mention what it was and ask about it and would of told him.

    I called every few days to see how the case was progressing, always got his secretary and the answer was always “I don’t know”. The case was dismissed but it’s still on my record but shouldn’t be. That was the lawyer’s decision.

    For me it was not about “getting off”, I did had have a record, and I did not do not drink alcohol of any kind. It was about defending myself against something I did not do not do.

    He was a well respected lawyer in the community in which this took place. All I wanted was information and I tried to provide it too. But somehow people like me are the reason lawyers don’t like to things pro bono.

    This was in a county (Williamson County, Texas) that has a no tolerance policy on alcohol until one of their (the Sheriff and those who work in his office) get caught doing the same thing. Then it’s a slap on the wrist (a lost job, but no criminal record, etc.)

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