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Public Defender Vs. Assigned Counsel – What Choice Do You Have?
- By: Michael T. Edwards, Esq.
- Published: December 31, 2019
If you’ve ever heard someone being read their Miranda Rights, you should be familiar with this phrase:
You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.
That might have left you wondering why someone would pay for an attorney when they could have one for free. The truth is, it’s not that simple. Court appointed attorneys are reserved for those in financial need. In order to receive a court appointed attorney, you must prove that you are unable to hire one yourself.
If you are able to do so, then you will be assigned an attorney. Depending on the state (and even county) you live in, a court appointed attorney could be a public defender or assigned counsel. What’s the difference? Let’s take a look.
What Is A Public Defender?
A public defender is a defense attorney that works for a government funded agency called a public defender’s office. Due to the nature of their position, they are often very experienced in the courtroom. Additionally, they have the same education and training as any other attorney.
However, they also tend to be heavily overworked, resulting in them splitting their attention between a vast number of cases at any given time. Combined with a salary that’s lower than most private attorneys, they can sometimes be limited in the energy they can put towards your case.
Also, due to a limit on funding, they might not be able to utilize additional resources such as private investigators to establish more evidence.
What Is Assigned Counsel?
Assigned counsel serves a very similar role to public defenders. These attorneys, however, work for a private practice, taking cases outside of what they are assigned by the court. While they charge their regular clients for legal assistance, assigned counsel work is performed for no-charge to the defendant.
Any attorney that is eligible for assigned counsel has gone through an application process, so you can trust that they are a capable and reputable attorney. However, the attorney you’re given is one that has been chosen by the court, not you.
Why Should You Choose Your Own Attorney?
Relying on a court appointed attorney can ultimately become a game of chance. It is the court’s decision who will represent you. You don’t get to choose between a list of public defenders and assigned counsel members. The decision is taken out of your hands. Whether it ends up being a public defender or assigned counsel, you may not like who you end up with.
If you have a problem with your appointed attorney, you can try to ask for a new one, but it’s up to the judge to determine the validity of your request.
Having a healthy relationship with your attorney that’s built on trust is critical to your court proceedings. You need to know that your attorney is there for you, and that they have your best interests at heart with every decision they make.
At Michael T. Edwards, we provide a range of legal services that you can trust in. Our process starts with a free legal consultation so you can make an informed decision without having to make a monetary commitment. We understand that every case is unique, and our staff is available as you need us.
Even if you don’t think you can afford an attorney, it’s worth having a meeting first to determine if that’s actually the case. It could make a big difference in the final verdict.
For an attorney in Springfield, Ohio , contact us today!
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Assigned Counsel Versus Public Defender Systems in Virginia - A Comparison of Relative Benefits
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The History of Public Defense in Kansas
Kansas has a long history of promising the right to counsel, but there is still much work to be done to make those promises a reality for people who are accused of committing crimes..
In addition to the Sixth Amendment of the United States Constitution, Section 10 of the Kansas Bill of Rights also guarantees criminal defendants the assistance of counsel. And dating back to the era of Kansas statehood, our statutes have further spelled out that right for indigent people, with Chapter 82, Section 160 of the General Statutes of 1868 providing that, “If any person, about to be arraigned upon an indictment or information for a felony, be without counsel to conduct his defense, and be unable to employ any, it shall be the duty of the court to assign him counsel....” But while the right was recognized early on, it was not until after the landmark Gideon v. Wainwright decision, in 1963, that anything resembling our modern public defender system existed.
The most current iteration of public defense in Kansas – the Board of Indigents’ Defense or “BIDS” – was created by statute in 1982. BIDS oversees both Kansas public defender offices and assigned counsel in areas of the state without public defender coverage.
But funding for public defense has continued to be an issue.
On the assigned counsel side, in Stephan v. Smith , a 1987 case, the Kansas Supreme Court overturned the mandatory appointment process for assigned counsel and ruled the state "has an obligation to pay appointed counsel such sums as will fairly compensate the attorney...at a fair rate which is not confiscatory, considering overhead and expenses." In essence, the Court ordered an end to the long-standing reliance on the goodwill of the bar for indigent defense and instructed the state to pay reasonable compensation to attorneys assigned to represent indigent people charged with crimes. BIDS has continued to advocate for assigned counsel to be fairly paid for their work.
Following the Smith decision, public defenders became more cost-effective than assigned counsel. Public defender offices also have other advantages, such as the ability to accrue institutional knowledge and advocate collectively. Consequently, BIDS has steadily opened more public defender offices throughout the state in order to provide a zealous defense for all Kansans charged with felonies.
But public defender offices have also had funding difficulties. In 2019, it was reported that one in four public defenders had resigned in the prior year primarily due to issues of high caseload and low pay. In response, BIDS Executive Director, Heather Cessna, created a three-phase plan to fix public defense in Kansas, and — as a result of that advocacy — in 2021, BIDS was allocated an additional 7.7 million dollars, a twenty-two percent increase and the highest year-to-year increase in BIDS history to that point. In 2022, that record was topped by an 8.6 million dollar increase in spending on public defense, which helped bring BIDS employee salaries closer to those of similarly situated prosecutors, helped raise the assigned counsel hourly rate, and will be used to address long-neglected infrastructure needs.
Even with these increases, though, there is still much work to be done. Each year BIDS leadership will continue to advocate for adequate salaries, staffing, and training so that our public defenders and staff can fulfill our mission to give our clients the zealous defense they deserve.
Scroll below to learn more about the history of each of our individual public defender offices.
The first two public defender offices were opened in Topeka and Junction City in 1972.
The Third Judicial Public Defender Office , in Topeka, represents people charged with felonies in Shawnee County.
The North Central Regional Public Defender Office , in Junction City, represents people charged with felonies in Riley, Geary, Marion, Clay, Dickinson, and Morris Counties.
Photo: From left to right, Jessica Glendenning, Deputy Public Defender, Cindy Sewell, former Chief Public Defender, Stacey Donovan, former Chief Public Defender, and Maban Wright, Chief Public Defender, gathered together for a photo at Sewell’s retirement celebration in November 2021.
The Salina Regional Public Defender Office was opened in 1973.
That office represents people charged with felonies in Saline County. It also handles conflict cases in Dickinson County, and cases where someone has been charged with a high level felony in Russell, Ellsworth, Mitchell, Cloud, Jewell, Republic, Ottawa, and McPherson Counties.
Photo: New Salina Chief Public Defender, Justin Bravi, stands with retiring Salina Chief Public Defender, Mark Dinkel, at Dinkel's retirement party in 2022.
The Sedgwick County Public Defender Office opened in Wichita. That office represents people charged with felonies in Sedgwick County.
Photo: Lead Assistant Public Defender, Jorge DeHoyos, hard at work in the Sedgwick County Public Defender Office in 2022.
The Appellate Defender Office , located in Topeka, was created to represent people with cases on appeal.
In response to the re-enactment of the death penalty in 1994, the Appellate Defender took on the additional responsibility of representing people in death penalty appeals in 1998, when the first such appeal was docketed in the Kansas Supreme Court.
Photo: A group of the original appellate defenders having lunch together, shortly after the office opened in 1986.
The Tenth Judicial District Public Defender Office opened in Olathe. That office represents people charged with felonies in Johnson County.
Photo: A celebratory cake from the Tenth Judicial District Office’s 25th Anniversary celebration in 2014.
The Western Regional Public Defender Office opened in Garden City. That office represents people charged with felonies in Western Kansas.
Photo: The attorneys and staff of the Western Regional Public Defender Office in late 2021.
The Office of Capital Coordinator was established in response to the 1994 legislature’s re-enactment of the death penalty. That office is now called the Death Penalty Defense Unit (DPDU) , and it continues to represent people charged with capital murder.
Photo: Capital Public Defender, Tim Frieden, counsels a client in a capital case.
Satellite public defender offices were created to represent people charged with felonies in Reno , Miami , and Seward Counties.
Photo: The Reno County Courthouse.
The Southeast Kansas Regional Public Defender Office opened in Chanute. Eventually expanding to include both a Chanute office and a satellite office in Independence , the Southeast Kansas public defender represents people charged with felonies in Allen, Neosho, Wilson, Woodson, and Greenwood Counties. The Chanute office also represents people charged with high level felonies in Coffey, Anderson, and Bourbon Counties.
Photo: The Southeast Kansas Regional Public Defender Office today.
The Northeast Kansas Conflicts Public Defender Office , located in Topeka, also opened in 1997. The Conflict Office represents people charged with high level felonies in Douglas, Jackson, Jefferson, Pottawatomie, Wabaunsee, Osage, and Lyon counties. The Conflicts Office also represents people in Shawnee County where the Topeka public defender has a conflict of interest that would bar them from representing a particular person.
Photo: The Northeast Kansas Conflicts Public Defender Office battle planning their dockets for the upcoming week in 2022.
The Reno County Public Defender Office was consolidated as a regional office. It represents people charged with felonies in Reno County, as well as people charged with higher level felonies in Rice, Barton, and Stafford counties. The Reno County office is also on call to represent people charged with higher level felonies in other counties in west-central Kansas.
Photo: The Reno County Public Defender Office today.
Because of the volume and scope of capital direct appeals — as well as the potential for conflicts of interest in cases where two or more people had been charged — the Capital Appeals and Conflicts Defender Office and the Capital Appellate Defender Office were established separately from the Appellate Defender to take over representation of people charged with capital murder in the Kansas appellate courts. Those offices are both located in Topeka.
Photo: Debra Wilson, Capital Appellate Defender, stands on the steps of the United States Supreme Court with co-counsel, Neal Katyal and Fred Liu, after the arguments in Kansas v. Carr in 2015.
The Sedgwick County Conflicts Office , located in Wichita, opened in 2009. The Conflict Office represents people charged with high level felonies in Sedgwick County. The Conflicts Office also represents people in Sedgwick County where the Sedgwick County Public Defender Office has a conflict of interest that would bar them from representing a particular person.
Photo: The Sedgwick County Conflicts Office today.
The Kansas Capital Habeas Defender Office was created to represent people charged with capital murder in their post-conviction proceedings.
Photo: Capital Habeas Defender Office attorneys, Jeff Dazey and Julia Spainhour, along with their DPDU counterpart Peter Conley, taking a break while attending a capital training in California in 2022.
After hearing public comment, the Board voted to open a public defender office in Douglas County. When that office will officially open is dependent on funding from the Kansas Legislature.
Photo: The old Douglas County Courthouse.
After hearing public comment, the Board voted to open a public defender office in Wyandotte County. When that office will officially open is dependent on funding from the Kansas Legislature.
Photo: The map of Kansas counties in the Kansas State Capitol Building.
After hearing public comment, the Board voted to open a public defender office in the 11th Judicial District (which includes Crawford, Cherokee, and Labette Counties in Southeast Kansas). When that office will officially open is dependent on funding from the Kansas Legislature.
Photo: The Crawford County Courthouse in Girard, Kansas.
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Working With Your Public Defender or Court-Appointed Attorney
The Sixth Amendment guarantees all defendants the right to the assistance of legal counsel in criminal cases. If a person cannot afford to hire an attorney, courts will appoint a lawyer at public expense, not only for felony cases but also for misdemeanors that can result in incarceration. This court-appointed attorney will usually be either a public defender or a panel attorney. Both have the same responsibilities—to zealously represent and defend their clients.
Court-Appointed Attorneys vs. Public Defenders: Are They the Same?
A public defender is simply one type of court-appointed counsel. The terms are used interchangeably a lot. (This article is no exception.) Both are fully licensed attorneys whose job is to represent criminal defendants. They are paid with public funds. The primary difference involves their working arrangements.
Appointments by the Court
Upon determining that a defendant is "indigent" (can't afford to hire legal counsel), the court must appoint one for the defendant. Defendants don't get to choose their appointed counsel. The court will typically appoint the local public defender ’s office or a local private attorney from an approved panel (sometimes called a court-appointed or panel attorney). The appointment varies depending on how the state or county provides indigent defense services.
Public Defenders Offices
If the court appoints the public defender’s office, that office will assign one of its attorneys to the case. Usually, the state runs and funds public defender offices throughout the state. Public defenders may work as full-time or part-time staff in their local office.
Panel Attorneys Assignments
If the court appoints a private attorney from its panel, it may assign a lawyer from a list of attorneys on duty that day for court appointments. These attorneys often have a private practice and apply to be a panel attorney who is paid on a case-by-case basis.
Are Public Defenders and Court-Appointed Attorneys Free?
It depends. Some jurisdictions try to recoup some of the public costs of court-appointed counsel by one or more of the following means:
- imposing upfront fees to apply for a public defender or court-appointed counsel—sometimes called a co-pay or an application, contribution, or registration fee
- requiring full or partial reimbursement or recoupment of costs after conviction, or
- requiring certain defendants who have some ability to pay to contribute toward the costs of court-appointed counsel (often called partial indigency).
These fees and costs are controversial, but many states still use them.
Are Court-Appointed Lawyers Good?
Yes. Court-appointed lawyers and public defenders are good at what they do, very good. Don’t assume that an appointed lawyer will be less capable than a private attorney you pay . Appointed counsel may perform as well as, or even better than, a private attorney for the following reasons.
Extensive Experience in Criminal Defense
Most public defenders are dedicated to criminal defense work and want to help their clients get the best result possible. Their offices may have investigators and researchers on staff—resources a private attorney may not have. Attorneys in a public defender’s office are often respected members of the criminal defense community with significant experience and skill.
Private attorneys who sit on an approved panel of criminal defense lawyers also have extensive experience. They must apply to the local court for membership on the panel and be approved by the judges. These attorneys typically have their own private practice with many clients who pay them for their services; as appointed counsel, they work for you for free (or close to free).
Ability to Ask for Investigative Funds
Appointed counsel have the ability to ask the court to pay for more than just their fees. If they believe that your defense requires an expert witness, like a fingerprint examiner or an accountant, they can apply to the court for funds to cover such expenses.
Frequently Appear in Court and Negotiate with Prosecutors
Public defenders and appointed private attorneys know the local judges and prosecutors. They've likely appeared before your judge and negotiated with your prosecutor on many prior occasions. This experience gives them insight that translates into good advice and proven strategies.
What Are the Responsibilities of Court-Appointed Attorneys?
Public defenders and panel attorneys have the same responsibilities and ethical duties as private criminal defense counsel. They must:
- zealously represent their client and defend their rights (guilty or not)
- investigate the case and develop a defense strategy
- provide legal and candid advice to their client
- maintain confidentiality of attorney-client communications, and
- communicate with and keep their client informed about plea offers , defense strategies, and important case developments.
All criminal defense attorneys must provide effective legal representation for their paying and non-paying clients.
One of the biggest challenges for public defenders and court-appointed attorneys is their caseload—how many cases they are juggling at one time. Because having legal counsel in criminal cases is a constitutional right, public defenders typically can’t turn down cases. Given that you’re just one of many clients, here are some tips on working effectively with your lawyer.
How to Work Effectively With Your Court-Appointed Attorney
Let’s look at how to get this new relationship started on the right foot. What can you do to help your public defender or court-appointed attorney evaluate the case and come up with the best legal strategy? What questions should you ask? What actions should you avoid?
First Priority: Getting Out of Jail
Your lawyer’s first priority will be to work with you to figure out whether you can post bail. Don't expect too much else in this initial meeting. Your appointed counsel will need as much information as you can provide regarding anyone who might be able to post bail or sign a bond to secure your release. Also provide your attorney with any community connections you have, such as steady employment, family in the area, or enrollment in classes. Based on this information, your attorney may be able to argue for release on your own recognizance (which is free).
Next Up: Preparing the Case
Remember that public defenders have a lot more experience in court than you do. They've been trained to identify the key legal issues and the facts most likely to matter to a judge and a jury. You can help your attorney in many ways, but there are just as many ways to damage your own defense. Here are some “dos” and “don’ts.”
Do start with trust. Begin your relationship with an assumption of trust. Some clients believe that appointed lawyers cannot be trusted because they are paid with public funds. It’s a mistake to automatically suspect your public defender as someone not fully on your side. Public defenders are normally passionate about the cause of criminal justice and would never betray their ethical obligations to clients.
Do follow your lawyer’s lead. Start off by letting your lawyer ask the questions. Many lawyers will begin with the police report, going over it and asking you to comment. Few lawyers will ask you an open-ended “What happened?”—not because they don’t want to hear from you, but because they are focused on defeating the prosecution’s case. Keeping the discussion centered on what the prosecution knows (and thinks it can prove at trial) is an efficient way to begin to craft a defense.
Do ask questions. You can certainly ask your lawyer any questions you have. Your defense counsel is obliged to explain the strategy for your case, and you should not be afraid to ask about this, either. But don't be surprised if what your attorney sees as important to your defense is different from what you think.
Do answer truthfully. Answer your lawyer’s questions honestly. In order to come up with the best defense to the charges, your lawyer must understand what arguments might work and what facts make other arguments impossible. For example, if your lawyer asks you about witnesses to an incident and you omit the name of a friend who was there, that friend could either be your corroborating witness or the prosecutor’s best witness against you. In either case, your public defender needs to know about this person.
Do consider all the options. Your lawyer is duty-bound to present all the ways in which your case might be resolved. In many situations, a plea bargain to lesser charges is an appropriate option. And sometimes, the prosecution offers reduced charges in exchange for cooperating with law enforcement. Even though you may be firmly opposed to either avenue, don’t get angry if your public defender raises them. You have the absolute right to go to trial and require the government to prove its case, even if your lawyer thinks a plea bargain would give you a better result. Whether to go to trial is your decision alone.
Don't investigate. Don’t try to investigate the case on your own. Public defenders have experience preparing cases for trial and often have professional investigators on staff. These professionals know how to interview witnesses and can testify at trial if needed. You should not call or write to anyone about the case unless your lawyer gives you clear instructions to do so.
Don't interview witnesses. If you talk to anyone else about the facts of your case, that person could become a witness against you—making your lawyer’s job even tougher. In addition, you do not want an awkward conversation to be seen as witness tampering by the prosecution. It’s normally much better to let the public defender contact potential witnesses.
Do leave it to the pros. Think twice about conducting your own legal research. If you want to read cases or statutes to understand the case, feel free to do so. But leave the heavy legal lifting to your counsel.
Do I Have to Keep My Court-Appointed Lawyer?
At any point during your case, if you come up with the funds (perhaps from family or friends) to hire a lawyer of your choosing, you have a right to change lawyers. However, doing so close to trial comes at a risk. Even if your new lawyer asks for a delay in order to prepare, the court does not have to grant that request.
If you're unhappy with appointed counsel but don’t have the means to hire a private attorney, you can request a different attorney. But, in general, this option should be a last resort when you cannot resolve your disagreements. Learn more in Before You Fire Your Court-Appointed Lawyer or Public Defender .
If, on the other hand, a conflict of interest arises that could compromise your lawyer’s ability to represent you, your appointed counsel has a duty to present this conflict to the judge. For example, if the prosecutor includes a former client of your lawyer on its potential witness list, your lawyer would be caught between their duty of loyalty to the former client and their duty to zealously represent you, which could include cross-examining the former client. Your lawyer would have to explain this conflict to the judge. In these circumstances, courts readily give new counsel additional time to prepare your case.
- Before You Fire Your Court-Appointed Lawyer
- Should I Use a Public Defender for My DUI?
- Working with a Public Defender or Court-Appointed Attorney
- Criminal Defense Lawyer: Criminal Sentencing Enhancements and Aggravating Factors
- Criminal Defense Lawyer: Effective (or Ineffective) Assistance of Counsel
- Public Defender: Before You Fire Your Court-Appointed Lawyer
- Public Defender: Delaying or Getting a Continuance in a Criminal Case
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assigned counsel , a lawyer or lawyers appointed by the state to provide representation for indigent persons. Assigned counsel generally are private lawyers designated by the courts to handle particular cases; in some countries, particularly the United States, public defenders permanently employed by the government perform this function.
The right to counsel varies considerably from country to country. Until the late 19th century, access to counsel was almost entirely predicated upon an individual’s ability to pay. If a person could afford a lawyer, he was entitled to one; if he was poor, he usually went unrepresented, except at times in capital cases. In the late 19th century, bar organizations and social-welfare groups banded together to supply legal aid to the indigent. By the mid-20th century, the governments of most European countries were participating in these programs in some fashion, in either their administration or funding or in both.
Most countries have recognized the right of the indigent to have counsel in criminal cases, particularly for the most serious types of offenses. Although Great Britain provided legal aid earlier (1949) than the United States, the United States was at the forefront in providing assigned counsel. Beginning in 1963 in Gideon v. Wainwright , the United States Supreme Court issued a series of decisions that upheld the rights of indigent persons accused of felonies to have counsel during trial and appeal and even during police interrogation. Although this right was not extended to cover misdemeanours, some jurisdictions and many public defender offices give coverage in such cases. Owing to an increase in prisoners on death row and a diminished emphasis on pro bono work in law firms, at the beginning of the 21st century, many prisoners sentenced to death in the United States lacked lawyers during the appeals process. For example, it was estimated that two-fifths of death-row inmates in Alabama were without counsel as statutory deadlines for filing appeals approached.
In civil-law countries and in England, the provision of assigned counsel has been more limited. For example, in France anyone accused of a crime beyond a minor misdemeanour must have counsel at the preliminary hearing and the trial, but this right has not been extended to cover police interrogation. Japan requires counsel only for cases in which punishment may exceed a three-year prison term. In Russia there must be a defense counsel in any case in which a public prosecutor participates or any case in which the accused is incapable of handling his defense.
Many countries do not remunerate lawyers assigned to defend the poor in criminal cases. In the United States the compensation is often considerably lower than what the attorney could receive from a private client. In consequence, although many public defenders and assigned attorneys are capable lawyers, they are often young and lacking in experience. In England, where the majority of lawyers volunteer to take cases involving indigent defendants, an accused person has a somewhat better chance of obtaining experienced counsel in a criminal proceeding.
In civil cases there is an even greater disparity between countries as far as rights to counsel and the resultant quality of counsel are concerned. In England state aid has been granted in divorce and certain kinds of litigation since 1949. Not until 1966 did the United States begin to deal with the problem of civil litigation, and then it did so only in a limited fashion. The poor were given the right to sue for divorce without paying filing fees and court costs; the right to counsel in such cases was also indicated. Although rights were not originally extended to other areas of civil litigation, legal aid is now provided for some eviction and bankruptcy cases.
In civil-law countries (e.g., France and Italy) the system of providing counsel for the indigent in civil cases is usually well organized but tends to employ young, inexperienced lawyers who usually serve without pay. In Germany , where the Federal Constitutional Court has upheld the right of the poor to counsel in civil actions, the compensation is adequate to be attractive to experienced attorneys. Lawyers are appointed by the court and paid by the government.
As the costs of providing counsel to poor defendants in criminal cases takes an increasingly heavy toll on public resources, many communities have turned to contract systems to provide a service that has traditionally been offered by ad hoc assigned counsel and public defenders. While contracting, like other forms of privatization, is popularly associated with cost reductions, there have been few rigorous studies that demonstrate the superior efficiency of any particular indigent defense program type including contracting. Moreover, the results of studies of program effectiveness or quality are contradictory and inconclusive. This article draws upon theories of privatization, first, to provide a framework for comparing contract programs with assigned counsel and public defender systems, and, second, to begin to stipulate the conditions under which contracting might prove an acceptable means of providing counsel to the poor.
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Assigned counsel serves a very similar role to public defenders. These attorneys, however, work for a private practice, taking cases outside of
Assigned counsels are always private lawyers selected to tackle specific cases. They are also known as court or state-appointed attorneys. These
The study found that the public defender systems do cost less per case than their assigned counsel counterparts, but the findings are mixed regarding the
The effective result is that the district court in each district may select either the public defender or the assigned counsel system. 1.4. ABA STANDARD.
Assigned counsel are asked to serve where our public defenders are unable to handle a case due to conflicts of interest or caseload. They are also employed in
Following the Smith decision, public defenders became more cost-effective than assigned counsel. Public defender offices also have other advantages
A public defender is simply one type of court-appointed counsel. The terms are used interchangeably a lot. (This article is no exception.) Both
A public defender is appointed to defendants who cannot afford to hire a private lawyer and who requests one to be appointed. Therefore, the defendant does
public defender, attorney permanently employed by a government to represent indigent persons accused of crimes. Public defenders, used primarily in the United
assigned counsel and public defenders. While contracting like other forms of privatization, is popularly associated with cost reductions, there have been