Public Defender or Private Attorney: Which Should You Use?

An attorney speaks in court. — (Image credit: Getty Images)

“Mr. Beaver, should we hire a private attorney or insist that our son, ‘Tom,’ just ask for a public defender for his possession of a controlled substance charge? He was arrested with several other young men in a car that had illegal drugs in the passenger compartment.

“We own an automotive and commercial truck parts delivery service. Tom is 25, works as one of our drivers, and it is my hope that he will take over the business.

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“My wife says that he needs to deal with this on his own, and as he can’t afford a private attorney, to ask for a public defender, but he yelled, ‘Public defenders are second-rate lawyers!’

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“We succeeded in enabling him to have an entitled attitude, and this scares us. I know that you began your law career as a deputy district attorney, so, what’s your recommendation? Does it really make a difference if he uses a PD? Thanks, Terry.”

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I ran this often-asked question by Denver-based criminal defense attorney Peter Lloyd Weber. His law practice concentrates on drug transportation and distribution.

“Where a family is facing the dilemma between teaching their kid a lesson and saving money — or biting the bullet and hiring a private attorney — there is really no choice as the collateral consequences of a drug conviction are so great,” he says.

“It can result in his being unable to obtain certain kinds of employment, licenses, may impact his credit rating, make it impossible to join the military, dramatically increase auto and homeowners insurance rates — in short, nothing good comes from a drug conviction.

“Especially where Tom’s parents expect him to take over their delivery business, a drug record is the last thing in the world they should risk.”

A Parade of Defendants Pleading Guilty

I recall as a deputy D.A. the parade of defendants represented by the Public Defender’s office or appointed counsel who, in my opinion based on what I saw, were induced to take plea deals on potentially defensible cases. And it wasn’t because these lawyers were lazy or incompetent.

Rather, it had to do with the economics of time. In fact, many articles have been written — --going back years — sympathetic to what faces these dedicated attorneys who want to help their clients.

But when you are given a huge caseload and lack adequate time and resources, justice suffers.

Weber agrees.

“This does not mean that public defenders are bad lawyers, far from it,” he says, “But you’ve got to look at the reality of having a PD or appointed counsel as your defense attorney. It often comes down to getting what you pay for.

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“Public defenders are government employees and generally, across the country, are significantly underpaid. In fact, some are so badly paid they would qualify for a PD!

“So, it is a perfect storm of the millions of people who can’t afford to hire an attorney for their criminal defense, given a PDs or equally low-paid appointed counsel — all of them juggling massive caseloads.

“Often these lawyers meet with their clients a few minutes before entering a plea. The results are negotiated pleas in almost all of their cases, due primarily to their huge caseload.

“It is common for PDs to plead their clients to years in jail with little more than a brief conversation beforehand. They simply do not have the time, energy and attention necessary to formulate a legal defense that could have prevented or minimized the impact of a conviction,” He maintains.

Advantages of Privately Retained Counsel

There are many advantages in hiring your own lawyer, and a main one is that clients can expect adequate time to be devoted to the case in addition to support staff, including private investigators — typically retired from law enforcement — and technical experts who are able to challenge evidence against their client. These all cost money, but as Weber observes, “They level the playing field.”

On the nightly news, we see body cam police video. He asks, “Do you think that public defenders or appointed counsel have the time to watch what could be hours of video? Often they do not. A privately retained lawyer will take the time to examine all avenues that help the client.”

Flat Rate or Hourly?

“Stories of defense attorneys being paid thousands of dollars upfront and then just walking their client through a guilty plea are common and are so unfair,” he underscores.

“Don’t let fear interfere with your common sense about the cost of hiring a lawyer. We can only charge reasonable rates, and with that in mind, I recommend that clients strongly consider paying by the hour — on a time-based approach — instead of one large flat fee.”

And what does he like most about his job?

“What I do is more than a job; it is a calling. People phone me every day asking for help. I never charge for phone consultations. When someone contacts a criminal defense attorney, this could be one of the worst times in their lives, and they should be able to talk with a lawyer without worrying if they can pay for that time on the phone.”

Dennis Beaver Practices law in Bakersfield, Calif., and welcomes comments and questions from readers, which may be faxed to (661) 323-7993 or e-mailed to Lagombeaver1@Gmail.com. And be sure to visit www.dennisbeaver.com.

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Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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After attending Loyola University School of Law, H. Dennis Beaver joined California's Kern County District Attorney's Office, where he established a Consumer Fraud section. He is in the general practice of law and writes a syndicated newspaper column, You and the Law. Through his column, he offers readers in need of down-to-earth advice his help free of charge. "I know it sounds corny, but I just love to be able to use my education and experience to help, simply to help. When a reader contacts me, it is a gift."