CJ 250 Lecture Notes - Lecture 9: Public Counsel, Pro Bono, A Confession
18 May 2018
School
Department
Course
Professor
Defense Attorneys
Introduction
● The defense attorney is often treated with scorn - why?
○ They often end up having the unenviable job of representing those on the wrong
side of the law
● Portrayal of defense lawyers in the media is often negative
● The defense lawyer advises, represents and acts for the defendant
The History of Criminal Defense
● The history of criminal defense can be traced back to ancient Rome
● By the 4th century advocates were essentially lawyers
○ The legal profession became more specialized, regulated, and stratified
● The profession disappeared after the Dark Ages, but the efforts of the church and state
led to its resurgence
● Growth of the Criminal Defense Bar
○ Criminal defense attorneys gained prominence around the 1730s
■ Few trained lawyers in American colonies at the time
■ Indigent defense was nonexistent
○ During the 19th century, most attorneys trained in apprenticeships
○ 1771, Blackstone’s Commentaries on the Laws of England provided a source for
the study of law and legal principles
● Growth of the Criminal Defense Bar
○ The number of lawyers grew after the American Revolution due to:
■ Increased formalization of law and the legal process created a demand
for professionals
■ The rather lax standards for becoming a lawyer
● Prompted the beginning of law schools
○ By the 1960s, concerns with civil rights, poverty and other social problems made
a legal career highly desirable
○ High profile Supreme Court cases also fueled growth in the legal profession
○ Law school admission became selective and schools introduced strict entrance
requirements
○ Criminal defense attorneys fall into two general categories
■ Privately-retained attorneys
■ Attorneys who represent indigent defendants
Types of Defense Attorneys
● Privately retained counsel
○ Retaining an attorney for criminal defense is expensive
■ Many attorneys take civil cases in exchange for a percentage of the
award if the plaintiff is successful - retainer
■ Legal fees in a felony case may exceed $25,000
■ The result is that many defendants cannot afford to hire their own
attorneys
○ Do you get what you pay for?
■ Is a privately-retained attorney more effective than a public defender who
represents an indigent defendant
● Research indicates wealthier offenders end up better off on the
whole than poor offenders
● But for the most part, public counsel and privately-retained
attorneys achieve the same results
● Guilty pleas, trial verdicts and case dismissals
○ Indigent defense systems
■ Three main indigent defense systems in operation in the United States
● Assigned counsel
● Contract model
● Public defender
■ Systems vary state by state
● One or more of the defense systems may be in operation and can
be organized at different levels of government
■ Who qualifies for these services?
● Most states rely on statutory definitions to determine indigent
status
■ Who foots the bill?
● Most indigent defense services are completely paid by the state
● Some states fund their programs at the county level
● The norm is for taxpayers to pay
■ Some authorities lament the state of the system (e.g. the American Bar
Association)
○ Assigned counsel
■ Selected to represent indigent clients in either
● Ad hoc assigned counsel system - judges choose a defense
attorney on a case by case basis
● Coordinated assigned counsel systems - rely on a coordinate to
choose the attorney
■ Most often used in rural areas
■ Counsel are paid according to set rates
○ Contract model - the state, county or other jurisdictional authority contracts with
private attorneys
■ Two main types of contracts for defense services:
● In a fixed-price contract the firm agrees to accept an unspecified
number of cases for a single, annual flat fee
● In a fixed-fee contract the defense firm contracts to provide
defense representation in a fixed number of cases for a fixed fee
per case
○ Public Defender
■ The first public defender program opened in LA in 1913
Document Summary
They often end up having the unenviable job of representing those on the wrong side of the law. Portrayal of defense lawyers in the media is often negative. The defense lawyer advises, represents and acts for the defendant. The history of criminal defense can be traced back to ancient rome. By the 4th century advocates were essentially lawyers. The legal profession became more specialized, regulated, and stratified. The profession disappeared after the dark ages, but the efforts of the church and state led to its resurgence. Criminal defense attorneys gained prominence around the 1730s. Few trained lawyers in american colonies at the time. During the 19th century, most attorneys trained in apprenticeships. 1771, blackstone"s commentaries on the laws of england provided a source for the study of law and legal principles. The number of lawyers grew after the american revolution due to: Increased formalization of law and the legal process created a demand for professionals.
