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Can You Trust Your Public Defender?

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By George Khoury, Esq. on June 19, 2019

If they can't afford a lawyer, the big question on most criminal defendants' minds will be whether they can trust their public defender.

Fortunately, for the most part, the answer to that question is yes. However, lawyers are still human, and most humans want to do as little work as possible for the most pay possible. If your public defender is not a salaried employee of the state, county, or other government entity, how that lawyer gets paid could create a significant issue.

Fixed Fees for Private Public Defenders

In states like Oregon, where there is currently a huge uproar about the broken public defender system, public defenders are just private attorneys who are paid a flat fee on a per-case basis. This system makes a negotiated plea bargain the most financially rewarding result for those private attorneys, as striking a plea deal takes a lot less time and effort than going to trial.

While attorneys are bound by ethical duties to essentially do right by their clients, when the financial incentive is placed on quick resolutions, rather than securing justice, it's easy to see how the public might not be so trusting. If you have a plea offer on the table, knowing if your attorney has a financial incentive to take your case to trial should be top of mind in considering their advice. To ease these concerns, you can and probably should ask them directly about how they get paid.

Typically, private defense attorneys are paid hourly, or in structured fixed-fee arrangements, which often include a requirement for clients to pay more if the case proceeds to trial. In these arrangements, attorneys are provided with a financial incentive to take a case to trial, which strengthens the recommendation of an attorney who is suggesting a client take a plea deal.

Private public defenders in different parts of the country are paid differently. So, if you're assigned one, knowing how your public defender gets paid is critical. Some states may even require you to pay for your public defender if you lose or take a plea bargain -- or regardless.

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