Court-Appointed "Panel" Attorneys

When there's no public defender office, or the P.D. can't take the case, the court will appoint a lawyer who is on the indigent "panel."

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A "panel attorney" is a lawyer who signs-up with the court to handle indigent cases when the public defender's office cannot represent the client. In some counties, where there is no public defender office, all indigent defense work is handled by panel attorneys. Being a panel attorney is a good way to have a steady stream of work, and payment (from the courts) is reliable.

When Panel Attorneys Are Appointed

In counties that have public defender offices, panel attorneys are appointed when a judge decides that there's a "conflict of interest" that prevents representation by the P.D. In counties without P.D. offices, panel attorneys are appointed when the judge determines that the defendant meets the requirements for indigency.

A P.D. would not be allowed to represent a defendant because of a conflict of interest in the following situations:

When two defendants are charged with jointly committing a crime. Even if both are indigent, the public defender’s office cannot represent both because each defendant may try to point the finger at the other as being more to blame.

When the victim is a former public defender client. In this situation, the P.D. would have two conflicting duties: (1) to vigorously represent the current client’s interests, and (2) to not disclose any information learned from the ­previous client in confidence. To fulfill the duty of vigorous representation in the current case, the P.D. would have to use any information known about the victim that might put the victim’s testimony in doubt. Yet this could easily violate the duty owed by the P.D. to the previous client (the victim in the present case) to not use that informa­tion.

The same conflict arises when one of the prosecution's witnesses is a former public defender client.

In these situations, public ­defender offices sometimes try to avoid conflict of ­interest problems by following a “don’t peek” policy. Under this policy, a P.D. stays on a case by promising not to look in the P.D. office’s files to dig up nasty but confidential information against a former client. Judges have an economic incentive to accept such promises: It’s almost always cheaper to appoint a second P.D. than a private panel attorney. However, many counties won't practice "don't peek," realizing that it's one thing to keep the file shut, but another to expect people to keep memories at bay.

How Good is My Panel Attorney Likely to Be?

The competence of your panel attorney, like that of his public defender counterpart, will depend on how experienced he is, and how many other lawyers in his position are vying to be placed on the panel. In areas where many criminal defense lawyers are available for work, getting onto the panel is quite desirable, and courts can be very choosy about whom they select. On the other hand, in areas with a dearth of lawyers, the courts may have few choices and may end up with less experienced attorneys. Often, panels are made up of former public defenders who have left the government office to go into private practice.

Getting a Second Opinion

Defendants who think their court-appointed attorneys are not representing them adequately should consider checking the court-appointed lawyer’s advice with a private defense attorney. Even an indigent defendant may be able to pay for a short second opinion consultation with a private defense attorney. Or, a defendant may have friends who can check with an attorney who has represented them.

Defendants often talk to other defendants facing similar charges to find out if their attorneys have provided different advice. Be very careful if you do this: Remember that because each case is unique, advice for different defendants—even those charged with the same crime—may vary greatly and still be valid. Also remember that the conversation will not be confidential and can be disclosed to the prosecution. Many a defendant has been undone by the testimony of a jailhouse neighbor who was consulted for legal advice.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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