Michigan Criminal Law – Should I just go with a Court-Appointed Lawyer? – Part 1

One question that comes up from time to time within my Criminal Practice is “should I just go with a Court-Appointed Lawyer?” This is almost always preceded by an explanation that the questioner either has no money, or not a lot of it. This article will focus on that question, and will be broken into 2 parts.

Let’s narrow that focus, however, to the types of Criminal cases that I handle. Thus, we are not talking about what are called “Capital cases,” meaning those that carry a term of up to life imprisonment, and usually involve such crimes as Murder, Rape, Armed Robbery, and the like.

Checklist2.jpgInstead, we’ll focus on the rather garden-variety Misdemeanor case, or a light-to-medium severity Felony case. Typically, this will involve charges ranging from DUI, Suspended License and other Driving charges to things like Possession of Marijuana, Cocaine, Analogues, or other Drugs, up to Felony DUI matters. The idea here is that we are NOT talking about Murder, Rape or Armed Robbery type charges.

Let me begin by pointing out that when facing a Criminal charge, having a Lawyer is better than not having a Lawyer. The same thing goes for dealing with an injury. Better to have a Doctor than not.

At this point the reader is probably figuring that I’m going to begin an analysis of how and why Court-Appointed Lawyers are so inferior to those Practicing Privately. That’s not the case. Instead, I’m going to examine the realities of the paycheck, and how that affects the level of service someone can expect.

Before we begin our analysis, I should point out that, contrary to popular opinion, a person represented by a Court-Appointed Lawyer must repay the Court. They are NOT free.

There is always some rumbling every year within the Legal Community about the need to increase the payment for Court Appointed Lawyers. The truth is, the Fee schedules that most Court-Appointed Attorneys work under was always below market in terms of compensation, and it has either remained relatively unchanged in the last umpteen years, or, in some cases, has actually gone down. It is generally recognized that within the economic realities of today’s world, these Fees are bottom of the barrel. Compared to the Fees of a Private Lawyer (see my Fee Schedule), it seems like welfare.

This generally accounts for the notion that Court Appointed Lawyers are very often young, inexperienced “newbies” learning to “cut their teeth” in the real world. While that’s not completely true, at least within the parameters of the kinds of cases I handle, any veteran Lawyer making his or her living on the Court-Appointed rolls, is generally not perceived (whether correctly or not) as having the “stuff” to be successful.

This does not mean that a good Lawyer will necessarily cost a King’s ransom. It does, however, mean that a Private Attorney will be adequately compensated for his or her time. Let’s look at a common service, called an adjournment, and what a Court-Appointed Lawyer will make for it. In many cases, there is some strategic reason to Adjourn, or re-schedule a Court date once the Defense Lawyer has met with the Prosecutor in Court. Often, the Lawyer wants to drag the case out a bit to help push along a better deal for his or her Client.

Sometimes, the Lawyer knows that some upcoming event, or the resolution of some other case may have a positive impact on the current case. For a Private Lawyer (at least for me), those strategic moves and delays are covered within the Fee I have charged. I don’t even have to think something like “oh man, another trip here, and a whole morning, or half of one, out the window…and for how much?”

Okay, so for how much? Typically, Court Appointed Lawyers receive between $25 and $50 for showing up to Court and making a new date to come back. Instead of there being either an economic incentive, or at least a break-even remuneration for doing that, the amount of money involved for such an adjournment acts rather like a DISINCENTIVE for doing so. If we assume that, on the short end, going to Court, meeting with the Prosecutor, going before the Judge, getting a new date, and getting back to the Office takes a mere 2 hours, our Lawyer has earned $12.50 an hour, before taxes. If he or she ONLY has to pay rent and a phone bill, you can expect that to add up to about $800 a month, or $200 per week. At the rate of $25 per adjournment, doing one of those in the morning, and one in the afternoon will leave our Lawyer with exactly enough money to pay his or her overhead, before taxes. This means that beyond NOT having any money for food, housing, or gas, they’ll have to find some other source of income to pay their income taxes at the end of the year.

Some might even question the intelligence of anyone working that way.

In reality, that will only happen a few times to most Lawyers. This is not a matter of someone trying to make the quicker, faster buck, but rather a matter of economic survival. It very basically becomes a matter of the Lawyer paying for a better outcome to the Defendant’s case, rather than the other way around.

Let’s take this example a step further and talk about a real-world kind of case. Say a person has been charged with DWLS, or Driving While License Suspended. Their License was Suspended because of an unpaid Ticket, or a few unpaid Tickets. They have hired a Private Lawyer, and they both show up to Court for the DWLS charge. The Lawyer meets with the Prosecutor and tries to work out a deal dropping the DWLS charge down to a No Valid Operators License on Person (“No Ops“) charge. The DWLS carries Points on the Driver’s Record, a Mandatory Additional Suspension, and Driver Responsibility Fees of $500 for 2 consecutive years. That means they will spend about as much on those fees alone than they would to hire a Private Lawyer like me.

A No Ops, by the way, carries NONE of those consequences.

Let’s assume that the Defense Lawyer has negotiated his or her tail off in order to convince the Prosecutor to reduce the charge from DWLS to No Ops, and that the Prosecutor is willing to do so, but points out that the Defendant still hasn’t cleared up one or more of the outstanding Tickets that cause the License Suspension in the first place. In the real world, in any such case, if this deal can be had, it will always be required that the Defendant clear up any and all outstanding Suspensions (meaning the unpaid Ticket or Tickets that caused the Suspension) BEFORE the Prosecutor will agree to reduce the charge.

The solution to this problem is a negotiated adjournment to allow the Defendant to take care of (meaning pay) the outstanding Ticket or Tickets, and then come back and take advantage of the negotiated reduced charge deal. This means telling the Judge you’d like to re-schedule to another Court date in the future. I do it all the time, sometimes multiple times in a single case, because my Client may have several outstanding Tickets to take care of, and needs time to come up with all the money.

If you’re a Court Appointed Lawyer, and you’ll only get $25 for coming back, how much incentive do you think there is to do it? Do you think it might occur to the Lawyer that, rather than blow a whole morning or afternoon for $25 bucks, just move the case forward and get it over with? Do you really think anyone DOESN’T think that way?

In part 2 of this article, we’ll continue our examination of the question “should I just go with a Court Appointed Lawyer,” and examine some other considerations involved in that inquiry.