Should you go with a public defender or a private attorney?

It’s kind of a ridiculous question. If you are charged with a crime and you can afford an attorney, you aren’t going to get a public defender unless you lie on your application or someone is willing to pay your attorney fees for you.

If you are charged with a crime and you can’t afford an attorney, the court will appoint a public defender to represent you.

That was easy, right?

So, why are there so many criminal defense blogs that are discussing the pros and cons of a public defender or private attorney?

It’s all about marketing.

Are criminal defense lawyers nationwide warning criminal defendants about the dangers of incompetent public defenders as a public service message? Why do they attack and demean public defenders?

Public defender clients will often switch to a private attorney as soon as they can find the resources – that’s how it should be, and public defenders are not complaining when their caseloads lighten a bit. In some cases, parents or other family members will eventually provide the funds a person needs to retain a criminal defense lawyer.

These clients are going to switch to a private attorney regardless of whether some attorneys are bashing public defenders online. The purpose of bashing public defenders is to, hopefully, get these clients’ attention when they make the decision to retain private counsel.

But, do attorneys really need to demean and insult public defenders to accomplish that goal?

What are Defense Lawyers Saying About Why You Should Choose a Public Defender or Private Attorney?

Criminal defense blogs and websites all over the country are going out of their way to tell you how terrible public defenders are. Some explain practical truths about the lack of funding for public defender offices and how that affects an attorney’s ability to defend their clients.

Others are simply unfair, untrue, and sometimes nonsensical. For example:

Public Defenders Try Too Many Cases

Whereas many private attorneys will say that public defenders plead all their clients and don’t try cases, The McClenahen Law Firm in Pennsylvania complains that public defenders try too many cases and that is bad for their clients…

He explains that “criminal defense attorneys always seemed to get better plea deals for their clients than public defenders.” His complaint is that public defenders consistently win at trial. This makes prosecutors mad, therefore public defenders don’t get good plea deals for the rest of their clients.

Ironically, he writes that he gets plea agreements now that he is in private practice, presumably because he doesn’t try cases anymore and he is careful not to make the prosecutors mad…

Now that I am in private practice, I get plea agreements, which I never would have gotten as a public defender. The simple reasons are that I am no longer in a constant state of war with police and prosecutors and I now represent a lot more clients with strong mitigating factors and far fewer aggravating factors related to both the facts of their cases and who they are as people.

So, would you hire this lawyer, who does not want to try cases or make prosecutors mad, so you can plead guilty, rather than use a public defender, who is willing to go to trial and fight for you?

Moving on…

Public Defenders “Swap Cases”

According to Malia Law in New York, “public defenders will not utilize all of their efforts on an individual case.”

Malia Law explains that public defenders will sell out some clients in exchange for better plea deals for other clients (please know that neither public defenders nor prosecutors do this – it’s BS straight out of television courtroom dramas). Malia Law says public defenders will say things like, “Oh, well, I’ll tell you what, I’ll plead guilty as charged in this case so you give me a deal on that case.”

Private attorneys, on the other hand, do not have this problem because “the private attorney is going to use all of his efforts, all of his best efforts on your case and your case alone.”

Malia Law goes on to explain that public defenders (who, by the way, do nothing but criminal defense work every single day) are “inexperienced in criminal defense work.” This is apparently because:

• They are “brand new out of law school;”
• “They’re just starting practicing;” and
• “They don’t really know what they are doing.”

As an aside, I personally know many seasoned criminal defense trial lawyers who are working in the trenches (public defender offices), who are not fresh out of law school and who I would rather have in my corner any day.

Public Defenders Have No Experience

The Liberty Bell Law Group in California explains that many lawyers, “who have no experience at all, go work as a public defender to gain experience.” They add that:

• You may end up being represented by a law student;
• Your public defender may be going to court for the very first time;
• Your “public defender would be more frightened than you in a criminal courtroom;” and
• Your public defender is “easily intimidated by a prosecutor with years of criminal law experience with trials and plea bargains and in the courtroom.”

They go on to explain, in stilted English that I hope was not written by an actual attorney, that:

There is an extreme amount of value had by an experienced criminal attorney, who has provided legal counsel to hundreds of criminal cases, that cannot be put into words or even attach a price tag to. After all, you shouldn’t put a price tag on your life.

Now I’m wondering how much value a potential client should place on their attorney’s ability to read and write the English language?

Your Public Defender Will Not Work on Your Case

The Law Office of Randy Collins in California wants you to know that your public defender is not going to work on your case, unlike a private attorney who will work diligently on your case:

In most cases, a public defender doesn’t start working on your case until the first time you meet in court. He or she will be juggling several different cases and only have time to speak with you briefly before moving on with your case.

On the other hand, a private attorney will begin working, investigating, evaluating evidence, and speaking with witnesses from the moment he gets involved with your case, which may be long before your first court date. This is a huge benefit in terms of preserving evidence and making sure you have every advantage possible.

They don’t have time to answer the phone, return calls, return emails, or answer your questions, unlike private attorneys who “will only take your case if they will have the time to be there for you every step of the way.”

Randy Collins says that you should consult with some private attorneys because “you just may find that are not as expensive as you think.” (There may be a pattern here with misspellings, improper grammar, and denigration of public defenders…)

Public Defenders are a Bureaucracy

The Law Office of Adam Bevelacqua in New York complains that “over 80% of defendants use public defenders because they do not know how to find an affordable lawyer that they can trust.”

It’s not because they are indigent. It’s because they are not intelligent enough to find a competent private attorney like Mr. Bevelacqua…

Also, public defenders are part of a bureaucracy. Whereas private attorneys spend their time working in the courts and representing clients, public defenders just, well, do bureaucracy stuff sitting in rows of cubicles trapped behind mountains of paperwork:

The public defenders offices run like any other government bureaucracy. Imagine a DMV with long lines of waiting people and rows of cubicles with lawyers trapped behind mountains of paperwork.

The best criminal lawyers spend most of their time working in the courts, counseling clients, checking evidence, investigating witnesses, and researching the law.

The suggestion that public defenders do not work in the courts, counsel their clients, check evidence, investigate witnesses, or research the law is an outright falsehood that, I hope, most people can recognize. It is shameful.

Public Defenders Don’t Work for You, They Work for the Court

The Law Offices of Christopher Marten in California want to blow the lid off the court-public defender conspiracy. They want you to know that “although public defenders are attorneys in their own right,” they:

• “Work for the court;”
• “Meeting with a public defender isn’t like meeting with a private attorney;”
• “Have little to no personal investment in your case;”
• Will inform you of your charges and the consequences you could face; but
• Will “work hard to get a criminal defendant to resolve the case before it reaches trial because it is often in the court’s interest to resolve the case before trial.”

Private attorneys, on the other hand, work for you and not the court.

They will “provide defense efforts if you want to fight your charges in trial or assist you with resolving the case before trial. You get to choose what route you want to take…” (note, once again, the grammar choices that clearly indicate this was most likely not written by an actual attorney – when is the last time you heard a lawyer say “I will provide defense efforts for you…”)

Public Defenders are Not Passionate About Their Clients

Greg Hill and Associates in California provides an initial disclaimer, “The purpose of this article is not to bash public defenders,” before going on to suggest that public defenders:

• Don’t answer the phone or return calls;
• Are not passionate about their clients; and
• Don’t take pride in their work.

Mr. Hill’s firm will give you peace of mind – that’s what everyone wants to hear, right?

What’s Wrong with Bashing Public Defenders to Get Clients?

It is unethical – and I mean it is a violation of the Rules of Professional Responsibility that govern lawyers’ conduct – to compare your services to the services of another attorney when the comparison cannot be substantiated.

Rule 7.1 of the SC Rules of Professional Conduct (most states’ rules are similar if not identical) states:

A lawyer shall not make false, misleading, or deceptive communications about the lawyer or the lawyer’s services. A communication violates this rule if it:

…(c) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated;

Apart from the ethics rules, it is a generally unethical advertising method that works well for used car salesmen, department stores, and other types of businesses. You trash-talk your competition to make yourself look better. Sounds shady, yes, but it is effective.

Of course, these lawyers think that their competition is the public defender’s office, which is kind of sad. They are competing for clients who likely have no money or resources…

Why else is it bad? Public defender clients, who have no other option for representation, are reading this crap and feeling abandoned and hopeless. Although there is some truth in many of the complaints, these attorneys are not advocating for an improved system or increased funding for indigent defense.

It amounts to misleading, often untruthful attacks on the abilities and character of thousands of hard-working public servants nationwide, many of whom care more about their clients than the attorneys who are attacking them.

It is misleading because it’s not even a matter of whether you choose a public defender or a private attorney – if you can afford private counsel, you must hire private counsel. If you cannot afford to hire an attorney, you will be appointed an attorney.

If you hire a private attorney, they might be incompetent.

If you are assigned a public defender, they also might be incompetent. Odds are, however, the public defender is going to have more knowledge about criminal law and criminal trial practice than many private attorneys, despite what unethical marketers are saying.

The truth is:

• Your public defender works for you, not the court. It doesn’t matter where the attorney’s paycheck comes from – the ethics rules ensure that an attorney’s duty of loyalty and confidentiality is always to their client.
• Many private attorneys, most likely including many of the ones bashing public defenders online, are less experienced in criminal defense practice than many public defenders;
• Many public defenders do not return phone calls. Just as many private attorneys do not return phone calls once they have your retainer in the bank.
• Most public defenders are motivated by passion for their clients and for criminal defense. Many private attorneys, including many who bash public defenders because they think it will bring them clients, are motivated by money.

Blame the Marketing Company?

My guess is that most of these attorneys are not writing their own content and they do not have attorneys writing it for them. Marketing companies are writing the content, based on search terms and key phrases that will bring the most relevant traffic to the attorney’s website.

There are no “marketer’s rules of professional responsibility” that I am aware of, and marketing companies don’t know what the ethics rules say unless the attorney tells them and monitors the content that is put on their website.

Do the attorneys review that content before it is published? Maybe, maybe not. They are responsible for it, however, as if they had written it themselves. Rule 7.2 of the SC Rules of Professional Responsibility is clear about this:

(b) A lawyer is responsible for the content of any advertisement or solicitation placed or disseminated by the lawyer and has a duty to review the advertisement or solicitation prior to its dissemination to reasonably ensure its compliance with the Rules of Professional Conduct…

Criminal Defense Lawyer in Charleston, SC

If you can afford to retain an attorney, your choice is not between public defender or private attorney.

Your choice is between private attorneys. Wherever you are, choose one who has experience trying criminal cases, who cares about their clients, and who does not go out of their way to “trash-talk” other attorneys to make themselves look good.

Charleston, SC criminal defense attorney Grant B. Smaldone represents clients who have been accused of crimes in the Eastern SC area. If you need our help, call now at (843) 808-2100 or send us a message to speak with an attorney today.