Public Defender vs. Defense Attorney: What’s the Difference?


Imagine you are arrested and charged with a crime. Pick any crime. It could be DUI; it could be a forgery; it could be anything. You are now faced with the prospect of having to defend yourself in court. Will you be represented by a public defender or a private defense attorney? More importantly, do you know the difference?

Every criminal defendant has a legal right to representation. A small number of defendants choose to represent themselves, but most are represented by experienced defense attorneys. It is the defense attorney’s job to ensure that a defendant’s rights are respected and upheld. It is not to prove the defendant innocent.

A Question of Who Pays

There are a number of differences between public defenders and private defense attorneys. The most fundamental among them is who pays the attorney. The choice between a public defender and a private attorney is often made during a defendant’s arraignment.

At the arraignment, a defendant is normally asked if he or she has legal representation. A defendant unable to afford the services of a private defense attorney can ask the court to appoint a public defender. Such requests are granted to defendants with legitimate financial constraints.

As such, the main difference that distinguishes a public defender from a private attorney is the government paying the public defender. In fact, a public defender is a government employee in every respect.

Defendants with the financial resources to pay for their own defense hire private attorneys. Private attorneys are either self-employed or employed by private practices. They work for their clients. While this should make no difference in the eyes of the law, it makes a big difference in terms of practical application.

Attorney Caseloads Matter

The other big difference between public defenders and private attorneys is caseload. Unfortunately, most local municipalities and counties do not have enough public defenders on staff to adequately address standing caseloads. Nor do they have the resources to hire more public defenders. Thus, public defenders tend to have huge caseloads that prevent them from giving each case the attention it deserves.

Things are different with a private attorney, according to Utah defense attorney Anita Dickinson. She says that private attorneys control their own case volumes so that they never have more on the plate than they can handle. This gives them the freedom to give as much attention to each case as is necessary to adequately defend the client.

A 2014 report from the American Bar Association recommends that defense attorneys handle no more than 150 felony or 400 misdemeanor cases annually. And yet, the typical public defender can handle nearly 600 cases per year.

Defendants Deserve Confidence

Finally, criminal defendants deserve to be confident in the representation they receive. Yet another difference between public defenders and private defense attorneys is the confidence they inspire in their clients. This is not to say that public defenders do not serve their clients well. They do the best they can with the resources they have. But limited resources and time do not inspire much confidence.

Private attorneys rarely lack the necessary resources and time. If a law firm’s caseload swells to the point of being unmanageable, the firm simply brings on more attorneys. Likewise, attorneys in that firm are purposely limited to so many cases per year. They are able to give their clients the attention they deserve which, in turn, inspires confidence.

Public defenders are a necessity of our legal system. But when defendants can afford to, they should hire private defense attorneys instead. The public defender doesn’t need any more work.

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