Federal public defender or private lawyer: how the choice works

A federal public defender is a full-time, salaried lawyer who represents people in federal criminal cases who can’t afford to hire one. After finding that a person is financially eligible, the court appoints a federal defender or a private lawyer from its Criminal Justice Act panel. A person who can pay may hire a private lawyer of their choice instead.

Who provides appointed lawyers in federal court?

The Criminal Justice Act, 18 U.S.C. § 3006A, requires every federal district court to have a plan for providing lawyers to people who are “financially unable to obtain adequate representation” (§ 3006A(a)). Each district’s plan, usually called its CJA plan, names who takes those cases. There are two sources of appointed lawyers:

• Federal defender organizations. A Federal Public Defender Organization is a federal office of full-time, salaried lawyers led by a Federal Public Defender, who is appointed by the court of appeals. Its lawyers may not take private cases. A Community Defender Organization is a nonprofit defense office named in the district’s plan (§ 3006A(g)(2)). According to the federal judiciary, defender organizations serve almost every federal district (uscourts.gov, Defender Services).
• CJA panel lawyers. Private lawyers approved by the court to take appointed cases, paid by the court at rates set under the Act (§ 3006A(b), (d)). In the few districts without a defender organization, panel lawyers take all appointed cases.

Each of our federal court guides names the district’s defender office.

How is a federal public defender appointed?

At the first court appearance, the judge must tell a person charged with a felony that they can hire a lawyer or ask for one to be appointed (Fed. R. Crim. P. 5(d)(1)(B)). The same hearing often decides release or detention before trial (see federal detention hearings and bond). Appointment then works like this:

1. Financial affidavit. The person fills out a sworn financial statement, the Form CJA 23, listing income, assets and expenses.
2. The judge decides. The magistrate judge or district judge appoints counsel “if satisfied after appropriate inquiry that the person is financially unable to obtain counsel” (§ 3006A(b)).
3. Partial payment is possible. If the court later finds the person can pay some or all of the cost, it may end the appointment or order that available funds be paid toward it (§ 3006A(c), (f)).
4. Through appeal. Appointed counsel represents the person at every stage, from the first appearance through appeal (§ 3006A(c)).

Do you have a right to a lawyer in federal court?

Yes. The Sixth Amendment gives everyone accused of a crime the right “to have the Assistance of Counsel for his defence” (U.S. Const. amend. VI). In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that this right is fundamental and that a person who can’t afford a lawyer must be given one. The Criminal Justice Act puts that right into practice in federal court.

Can you choose your own lawyer?

A person who can hire a lawyer has the right to choose who that lawyer is. In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the Supreme Court held that wrongly denying a defendant the lawyer he chose and paid for violates the Sixth Amendment, and the conviction must be reversed without any showing that the outcome would have been different.

The right has limits. It doesn’t let a person with appointed counsel pick which lawyer the court appoints, and judges keep control over who may appear and over the schedule. A person who starts with appointed counsel can hire a lawyer later; the new lawyer enters the case, usually with the court’s approval, and the appointment ends (§ 3006A(c)).

What are the practical differences?

Federal defenders and CJA panel lawyers handle federal criminal cases every day. The differences are mostly about how the lawyer is chosen and when:

• How the lawyer is chosen. Appointed counsel is assigned under the district’s plan. With a private lawyer, you decide whom to hire.
• Caseload. A defender office takes the cases the court assigns to it. A private firm decides how many cases it takes on.
• Timing. Appointment usually comes when a person is charged or first appears in court. Before charges, during an investigation, there is often no appointed lawyer yet, and whether one is available depends on the statute and the district’s CJA plan. A private lawyer can be hired at any point.
• Eligibility. Appointed counsel depends on the court’s finding that the person can’t afford a lawyer. Hiring a private lawyer does not.

For an overview of how federal cases work and what a defense lawyer does at each stage, see federal criminal defense. For the laws and penalties behind a specific charge, see our guides to federal charges.

Where does Criminal Center fit?

Criminal Center is a boutique federal criminal defense firm. We take on a limited number of cases at a time, so each one gets close, personal attention.

Book a consultation and tell us what happened.