Understand what criminal defense lawyers do, who they represent, and how to find one or request a public defender.
The criminal justice process is complex and daunting. Learn more about criminal defense lawyers and how they work for defendants.
Questions on Criminal Defense Lawyers
- How can I find a private criminal defense lawyer?
- How much will a private criminal defense attorney cost?
- What happens if I can't afford or don't have a private criminal defense lawyer?
- How can I get a court to appoint a public defender for me?
- Should I represent myself in a criminal case?
- Who does the criminal defense attorney or public defender represent?
- Can my criminal defense lawyer go to my arraignment for me?
- Can I change criminal defense lawyers if I'm unhappy with the one representing me?
How can I find a private criminal defense lawyer?
Recently arrested people should usually talk to a lawyer as soon as possible. Often, the most urgent priority is getting a lawyer to arrange a defendant's release and provide some information about what's to come in the days ahead.
If you have been represented by a criminal defense lawyer in the past, that is usually the lawyer to call—assuming you were satisfied with their services. If you have no previous experience with criminal defense lawyers, you can look to the following sources for a referral:
- Lawyers you know. Most lawyers do civil (non-criminal) work, such as divorces, drafting wills, filing bankruptcies, or representing people hurt in accidents. If you know any attorneys that you trust, ask them to recommend a criminal defense lawyer. (Some lawyers who do civil work can also represent clients in criminal matters, at least for the limited purpose of arranging for release from jail following an arrest.)
- Family members or friends. Someone close to you may know of a criminal defense lawyer or may have time to look for one.
- Nolo's Lawyer Directory. Nolo offers a unique Lawyer Directory that provides a comprehensive profile for each attorney with information that will help you select the right attorney. The profiles tell you about the lawyer's experience, education, and fees. Nolo has confirmed that every listed attorney has a valid license and is in good standing with his or her bar association. Every attorney has taken a pledge to communicate regularly with you, provide an estimate of the time and cost involved, and provide you with a clear, fair, written agreement that spells out how they will handle your legal matter and how you will be charged.
- Referral services. Lawyer referral services are another source of information, but there is a wide variation in the quality of these types of services. Some lawyer referral services carefully screen attorneys and list only those attorneys with particular qualifications and a certain amount of past experience, while other services will list any attorney in good standing with the state bar who maintains liability insurance. Before you choose a lawyer referral service, ask what its qualifications are for including an attorney and how carefully lawyers are screened.
- Courthouses. You can visit a local courthouse and sit through a few criminal hearings. If a particular lawyer impresses you, ask for their card after the hearing is over, and then call for an appointment.
How much will a private criminal defense attorney cost?
It's impossible to give a definitive answer. Attorneys set their own fees, which vary according to a number of factors:
- The complexity of a case. Most attorneys charge more for felonies than for misdemeanors because felonies carry greater penalties and are likely to involve more work for the attorney.
- The attorney's experience. Generally, less-experienced attorneys set lower fees than their more-experienced colleagues.
- Geography. Just as gasoline and butter cost more in some parts of the country than others, so do lawyers.
A defendant charged with a misdemeanor should not be surprised by a legal fee in the neighborhood of $3,000-$5,000; an attorney may want $15,000-$25,000 in a felony case.
Most criminal defense attorneys want all or a substantial portion of the fee paid upfront. Contingency fees (where the lawyer gets paid only if they wins the case) are not allowed in criminal cases. To find a criminal defense attorney near you, check out Nolo's trusted Lawyer Directory.
What happens if I can't afford or don't have an attorney?
The U.S. Constitution provides that you are entitled to representation by an attorney if the state is trying to deprive you of your liberty. This means that a court may be required to appoint a lawyer to represent you for free—or a fee you can afford—if the crime you are charged with carries a jail sentence.
According to the federal constitution, a defendant has a right to an attorney before being punished by imprisonment. Some courts have held that the right to counsel applies not only wherever imprisonment is imposed, but wherever it may be imposed. States are free to provide a right to counsel in other circumstances, too, such as when the defendant could be sentenced to a fine of a certain amount. (Faretta v. California, 422 U.S. 806 (1975).)
Because most criminal defendants are unable to afford their own attorneys, many states have public defender's offices. Public defenders are fully licensed lawyers whose sole job is to represent poor defendants in criminal cases. Because they appear daily in the same courts, public defenders gain a lot of experience in a short period of time. And because they work daily with the same cast of characters, they learn the personalities (and prejudices) of the judges, prosecutors, and local law enforcement officers—important information to know when assessing a case and conducting a trial.
In areas that don't have a public defender's office, the local government will often contract with private law firms to take cases for indigent defendants. Or, the courts will maintain a list of attorneys and appoint them on a rotating basis to represent people who can't afford to hire their own lawyers.
How can I get a court to appoint a public defender for me?
Normally, if you want a court to appoint a public defense attorney for you at government expense, you must:
- ask the court to appoint a lawyer, and
- provide details about your financial situation.
Typically, your first opportunity to ask the court to appoint a lawyer for you will be at your first court appearance, normally called your arraignment or bail hearing. The judge will probably ask you whether you are represented by a lawyer. If you're not, the judge will then ask whether you want to apply for court-appointed counsel. If you say yes, some courts will appoint a lawyer right on the spot and finish your arraignment. Other courts will delay your case and appoint a lawyer only after reviewing and approving your financial circumstances.
Each state (or even county) makes its own rules as to who qualifies for a free lawyer. However, as a general rule, if the judge decides you're too poor to pay for an attorney and there is an actual risk of a jail or prison sentence, the court must appoint free legal counsel.
If you don't qualify for free help but can't afford the full cost of a private lawyer, you may still obtain the services of a court-appointed attorney. Most states provide for "partial indigency," which means that, at the conclusion of the case, the judge will require you to reimburse the state or county for a portion of the costs of representation.
Should I represent myself in a criminal case?
The most critical piece of information in making a decision about self-representation is what the likely punishment will be if convicted. It is almost always wise to be represented by an attorney when jail time is possible. And remember, convictions for even seemingly minor offenses can carry hidden "downstream " costs, such as more severe punishment for a second conviction, increased insurance rates, loss or suspension of a professional license, and deportation of non-citizens. (To find a criminal defense attorney near you, check out Nolo's trusted Lawyer Directory.)
For more information, see Does Self-Representation in a Criminal Case Ever Make Sense?
Who does the criminal defense attorney or public defender represent?
It doesn't matter if you have a private criminal defense attorney or a public defender: Your attorney represents you—the criminal defendant—and has an ethical duty to zealously defend you, guilty or not. Defense lawyers must keep their clients informed about case-related developments, keep certain communications confidential, and give advice to help their clients make informed decisions. Your attorney is in charge of making tactical decisions (such as making motions and deciding what witnesses to call). But, as the criminal defendant, you maintain decision-making authority over essential matters, such as:
- whether to plead guilty or not guilty
- whether to accept a plea bargain, and
- whether to give up their right to a jury trial.
The prosecutor (who might be called a state, city, district, or assistant U.S. attorney) represents the government and files the criminal charges against the defendant. The role of the prosecutor is to protect the public. But prosecutors also have ethical duties to see justice done and not pursue cases on a whim.
Can my criminal defense lawyer go to my arraignment for me?
In most criminal courts, the arraignment is where you first appear before a judge and enter a plea of guilty or not guilty to the offense charged. Assuming you enter a plea of not guilty (which almost every defendant does at this early stage), the following steps also happen at the arraignment:
- the judge sets a date for the next hearing in your case
- the judge considers any bail requests that you or the prosecutor make
- the judge appoints a lawyer for you, if appropriate, and
- the judge may ask you to "waive time"—that is, give up your right to have the trial or other statutory proceedings occur within specified periods of time.
Most people can, if necessary, handle this proceeding without an attorney. However, it's almost always better to have a lawyer, whether court-appointed or privately retained.
Can I change criminal defense lawyers if I'm unhappy with the one representing me?
Judges rarely grant a defendant's request for a change of a public defender or another court-appointed lawyer. Disagreements between government-paid lawyers and defendants over strategic decisions are common and rarely are cause for a change of counsel. However, if in a serious case a schism between a lawyer and a defendant is so severe that a professional relationship is impossible, a judge may grant a defendant's request for new counsel. Incompetence of counsel is another possible basis for a change of counsel, but one that rarely arises.
On the other hand, defendants who hire their own attorneys have the right to fire them at any time, without court approval (subject to a few exceptions). A defendant doesn't have to show "good cause" or justify the firing. After firing a lawyer, a defendant can hire another lawyer or perhaps even represent herself. Of course, changing lawyers will probably be costly. In addition to paying the new lawyer, the defendant will have to pay the original lawyer whatever portion of the fee the original lawyer has earned.
Your right to change lawyers is limited by the prosecutor's right to keep cases moving on schedule. If you want to change attorneys on the eve of trial, for example, your new attorney is likely to agree to represent you only if the trial is delayed so the new attorney can prepare. The prosecutor may oppose the delay, possibly because witnesses won't be available to testify later on. In these circumstances, the judge is likely to deny your request to change lawyers.
For More Information
For answers to your questions about every part of a criminal case, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo). If you are looking for a criminal defense attorney near you, check out Nolo's trusted Lawyer Directory.
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