Private Attorney or Public Defender?

This is a common question that I’ve been asked many times over my career.

While media representations of public defenders are sometimes less than flattering, the truth is that many Offices of the Public Defender (OPDs) have excellent, dedicated, and talented attorneys.

Also, by working at an OPD, an attorney can focus exclusively on criminal defense, rather than split his attention between different areas of the law. For example, many private attorneys branch out into other areas such as personal injury and family law.

Public defenders also have enormous institutional knowledge about the local criminal justice system. In fact, a large public defender office, like the Allegheny County OPD, may have opportunities to participate in creating and influencing systemwide policy. The enormous volume of cases that a large OPD handles every year necessitates some degree of participation. Otherwise the system would become increasingly inefficient as various stake-holders create their vision of how the system should operate, which is not always consistent with the way it does operate in reality.

However, the large caseloads can be both a blessing and a curse. It is true that many assistant public defenders are overworked and underpaid. While most assistant public defenders are able to effectively manage their caseloads and maintain a work-life balance, it can still be a daunting and overwhelming challenge. Because of the relatively low pay, OPDs are often staffed with new and inexperienced attorneys. Many attorneys get their first legal job at OPDs. As a result, OPDs often dedicate significant resources and personnel to training new attorneys, and often provide extensive mentorship to newer attorneys before they are asked to handle more serious matters on their own.

Another advantage of proceeding with the OPD as your attorney is that it will pay to fund your defense. For example, if you need an expert witness, the OPD will hire the expert and pay his or her fee. However, this is a double-edged sword. The OPD might be limited in the resources that it can expend on any given case. Also, the OPD might require that experts agree to a cap on their fee, which could cause certain experts to choose not to work with the OPD. However, generally speaking, the OPD will hire the necessary experts to competently represent you.

So, why would anybody hire their own attorney? Well, the major reason why someone would hire his or her own attorney is because he or she might not qualify for the OPD, which only accepts cases based on income level or incarceration. In other words, you might make too much money to qualify for OPD representation. Another reason why someone might hire a private attorney is to get more accessibility to the lawyer. While many assistant public defenders are extremely dedicated, they are government employees, after all, who receive a paycheck for working set hours. Many of them go above and beyond what they are paid to do, but ultimately, it is not fair or equitable to force a public defender to work when he or she is not getting paid to do so. In Pennsylvania, public defenders can only represent you in the county where they are employed . So, if you want to talk to your attorney during the weekend, early in the morning, or late at night, or if you want your attorney to handle matters in different jurisdictions, such as Pennsylvania and federal court, or multiple counties, an assistant public defender might not be able to accommodate you.

Also, when you apply for representation by the OPD, you don’t get to choose your attorney. Your attorney will be assigned to you based on an internal assignment process. It is likely that you will be assigned the assistant public defender who already happens to be scheduled in the courtroom on the day when your case is scheduled. In all honesty, while many assistant public defenders are very good attorneys, some of them are not. If you get assigned an assistant public defender who does not have the experience or commitment to represent you effectively, you could be in for a big problem. If you hire your own attorney, you do not have to worry about getting assigned the “wrong” attorney.

One of the reasons why I created the Major Felony Unit at the Allegheny County OPD, was so that I could apply my discretion to the assignment of attorneys to serious cases. I would take into consideration many variables, including the attorneys’ caseloads, their experience level, and their preexisting schedules. My goal was to assign the best possible attorney to the case based on all the information that was available to me at the time.

Many private criminal defense attorneys started out as public defenders. So, by hiring a private attorney you are getting the benefit of whatever training and experience that the attorney received while working as a public defender. However, as you can imagine, there is a reason why many, if not most, attorneys eventually leave the OPD. As already mentioned, the two big reasons why attorneys leave the OPD is to have more manageable caseloads and to increase their income. So, generally speaking, if you hire a private attorney, you should expect to receive a level of experience and accessibility for your case that you might not get if you proceed with the OPD.

However, not every private attorney has the experience, skill or commitment that your case deserves and requires. Some private attorneys have little in-court experience. Some private attorneys who accept criminal cases do not specialize in criminal law, but rather, they specialize in other areas and do criminal law on the side. In some situations, you might hire a specific private attorney based on his reputation only to have him “represent” you in name only, with the actual legal work and court appearances handled by his partner or associate. Finally, when you hire a private attorney you must fully understand the scope of the representation. If you hire the attorney to represent you only for a specific hearing, such as the preliminary hearing, then do not expect him to continue representing you once that part of the case has concluded unless you reach a new agreement for the attorney to continue representing you.

The bottom line is you need to be very careful when you choose which attorney will represent you considering how much is at stake. If you are charged with a serious crime— or any crime for that matter that could cost you your freedom, reputation, and livelihood— you need to hire an attorney who has the experience, dedication, and ability to provide you with the most effective criminal legal defense possible. Remember also that while hiring an attorney might be expensive, the cost of a criminal conviction is even higher. I recall a judge who would jokingly advise defendants who were entering pleas to DUI offenses that it would have been cheaper to just hire the attorney to drive him home.

I served as an assistant public defender for over 15 years. During that time, I handled many criminal cases and learned a lot about the art and science of criminal legal defense. Over the years, many people, including friends and family members, would ask me if they should hire a private attorney or proceed with the public defender. My answer is usually something like this: if you can afford to hire a private attorney and fund your defense, you are probably better off hiring a private attorney— unless of course you are lucky enough to be assigned an attorney like me, in which case, you would be better off proceeding with the public defender.

So, why did I leave the Public Defender after 15 years to open my own practice… well, that’s a story for another blog.