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As attorneys in private practice, we’ve come to fully appreciate the powerful social stigma attached to public defenders. A fairly typical consultation for us goes something like this:
Client: I need to hire you. I can’t be represented by a public defender.
Us: Who is representing you?
Client: [fill in the name of public defender]
Us: She/He is a great attorney. I would hire them to represent me if I was in trouble.
Client: Yeah, but I can’t be represented by a public defender.
Us: You know that both of us were longtime public defenders right?
Client: But you’re not anymore, and I need a private lawyer.
This post probably doesn't help our business as private attorneys, but we want to set the record straight. The simple fact is that there is no better way to learn how to be a successful defense attorney than being a public defender. It’s an occupation that throws you straight into the deep end of the courtroom and forces you to learn how to swim. Public defenders get more cases and more trial experience than anyone else. Let us make our point very clear: Good public defenders are real lawyers. The realest lawyers. There are PDs who are better lawyers than almost any private attorney out there.
That being said, some of the rumors about PDs are true: they are underpaid, overworked, underappreciated, and under-resourced. They bust their asses day in and day out and get little to no respect. Their clients have no trouble telling them they're worthless and that a real attorney would “beat this case easy.” Even polite and educated society disrespect public defenders. Tell people at a dinner party that you’re a public defender, and you’re going to hear comments like, “You have to start somewhere.” “Maybe after a couple of years you can be a prosecutor,” etc. Despite some minimal lip service to the contrary, politicians also don’t value public defenders. In short, it’s politically unpopular for people in power to advocate for tax dollars to be used towards providing stellar representation for criminal defendants (especially poor ones who can’t/don’t vote). Securing tax dollars in the pursuit of being "tough on crime" is way more palatable.
As a sad consequence, a lot of high quality public defenders don’t stick around for the long term. And who can blame them? It takes an almost inhuman level of dedication to make a career out of something that society doesn’t value at a fraction of your market value. In our experience, the result is that most public defenders will fall into one of a few different categories:
One category is the true believers. These are the attorneys who have an undying passion to help the needy. They are highly qualified, believe in indigent defense, work extra hours, and value the impact they have on society. They respect the Constitution and show up to court ready to fight the good fight even if it means walking into a judicial buzzsaw. They believe that everyone deserves the best defense possible and, of course, they are ABSOLUTELY right.
Another category would be the eager to learn PD attorneys. They realize that there is no better way to become a great attorney than by being in court as much as possible and fighting whenever they can. They LOVE the good fight in the PD's office because it teaches them how to throw a nasty right hook (and how to take one too). They are ambitious, well-prepared, and consider themselves students of the game. Some attorneys in this category will fall in love with indigent defense and stick around. However, simple economics dictate that most leave to make more money in the private world once they've honed their skills.
The most unfortunate category is the comfort-zone lifers. This is the group that give PDs a bad name. This group sticks around for less than ideal reasons like: the job has good health benefits, they know it's damn near impossible to get fired from a state job... and so on and so on. These are the attorneys that you don't want on your case. They’ve stopped doing the job (if they ever did it) and have become part of the conviction machine. They feel no shame pleading clients on an assembly line and rationalize why they haven’t had a jury trial in 5 years. The awful truth is that they almost never get fired and bring home the same paycheck as the PDs who actually put in the hard work of trials and appeals.
So where does that leave a criminal defendant? If a family member or friend has the means to pony up for a private attorney, should they ditch the PD? The answer isn’t always black and white. Our abbreviated attempt at a pros/cons list of having a private attorney over a public defender would be this:
PROS (of hiring a private attorney over having a PD):
Good private attorneys will give you more personal attention. When we were PDs, we each typically carried caseloads of between 120-150 felony clients at any given time. A former public defender who we greatly admire compared being a PD to being a triage nurse. You have to make an assessment of which clients are in the direst need of your attention and the rest often get pushed to the back burner. Private attorneys, on the other hand, handle far fewer serious cases and are competing with other attorneys for your money. That means that successful private attorneys don't necessarily adhere to 9 to 5 hours and are more likely to make themselves available to address your concerns -- no matter how critical or trivial (after all, that's what you're paying them for).
You can choose your attorney. If you’re appointed a PD, you might get top-of-the-line representation but you also might get a schmuck. I doubt many in the PD world would dispute this point. Many are rock stars and some are duds. Of course, there are many in between. But the reality is, the court appoints you to the PD's office, the PD's office assigns an attorney, and you're stuck with who you've got. If you come to us or any other private defense attorney, you show up for a consultation, chat with us, and if you don't like us, you just hire someone else (or go with the PD's office if you qualify). Having the option of choosing an attorney you're comfortable with is an amazing luxury to have when your liberty is on the line.
Public defenders are overworked and overextended. Well at least the good ones are because they're always trying to fight for their clients -- all 120-150 of them. But no matter how great you are as an attorney, if you have more cases than you can handle, you're bound to slip up from time to time. In the PD world, cases and clients will, by necessity, become prioritized based on the PD's very finite resources of time and attention. The pay provided by the Commonwealth of Virginia (about $51,000 for an assistant PD with minimal opportunity for advancement) is a joke and leads to frequent turnover. Honestly, it's a pathetic shame that Virginia does not better prioritize the rights of indigent defendants.
CONS (of hiring a private attorney over a PD):
There are many great public defenders. If you get one of these studs, your case will likely be handled thoroughly and competently. These attorneys make time to ensure they're prepared when they appear in front of a judge. Doesn't necessarily mean they'll give you peace of mind by returning all of your calls but they WILL be ready to go on your court date.
Public defenders know their judges. Public defenders usually only practice in one city or county so that means they get to know all the idiosyncrasies and tendencies of the judges better than anyone else. Knowledge of these tendencies can be critical in a case. Some judges will take an argument like, "Hey judge, it was just some marijuana," with a smile and an approving nod while other judges will BURY YOU AND YOUR SUPPORT OF ILLEGAL ACTIVITIES (along with your reputation) UNDER THE COURTHOUSE. Being "in the know" about the judge can make all the difference. Truth is, we often ask the PDs for intel when we find ourselves in an unfamiliar jurisdiction.
Public defenders don't cost as much. If you win, you don't pay anything. If you lose, your court costs are still probably way less than what you'd pay a private attorney. There might be some truth to the old saying, "you get what you pay for," but for all the reasons in this post, you might luck out by being able to have your cake and eat it too if you go with the PD's office.
We have the utmost respect for the competent, well-prepared public defender. Anyone who says otherwise either hates poor people or hates the United States Constitution. The posting for the PD's job description is pretty much listed in the Sixth Amendment of the Bill of Rights. With that very full disclosure, we also know from decades of experience in the trenches that not all public defenders are created equal and that some clients are better served by private representation. If you're thinking about hiring a private attorney, give us a call. We're honest, and if you're best served by sticking with the PD, we have no interest in taking your money.
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