Criminal Law

What Is the Price for Your Right to Free Counsel?

"You have the right to an attorney. If you cannot afford an attorney, one will be provided for you." This well-known phrase has been uttered by many police officers, on the street and on the screen. But have the words lost their meaning? One district court in Georgia says "no" to accused people asking for free counsel - no matter their dire financial straits. What does this mean for citizens who find themselves arrested for a serious traffic violation or for a criminal offense?

Several criminal defendants recently filed a lawsuit against the State of Georgia and individuals within the state system for failing to provide them with free attorneys when charged with serious crimes and were unable to pay for an attorney on their own.

The lawsuit described a troubling scene where people accused of crimes appeared at court hearings bewildered by the workings of the courtroom, or sat in jail for months on end without any attorney being called to represent them. The State of Georgia and its agencies say their ability to provide attorneys has simply been exhausted.

The Constitutional Right to Free Counsel

Many people have heard of the landmark case of Miranda v. Arizona. In that case, the US Supreme Court declared that certain basic rights are sacred under the US Constitution, including the right to be represented by an attorney if you're arrested. This includes the right to free legal representation when you can't afford to hire an attorney on your own.

If you get a speeding ticket or a parking ticket, or get sued in small claims court, don't expect to get a free attorney. This right applies only if you're charged with a crime where you could be punished with jail time, and in limited other serious instances such when the termination of your parental rights is at stake. This right to counsel applies at the trial level and to appeal at the higher courts.

Eligibility for Free Counsel Not Clear Cut

How do you qualify for free counsel? A judge ultimately determines whether you're so economically challenged to have an attorney assigned at no cost. In some places, these attorneys are called "public defenders."

You must ask the judge to appoint an attorney for you, then, the judge asks a number of personal questions about your financial resources. Many pointed questions are asked, including your income per week and how, the value of your assets and if other people are supporting you.

Be prepared for this detailed questioning in an open public courtroom - except for termination of parental rights cases, which are closed to the public. Don't exaggerate or lie; harsh penalties result if it's found out you lied about your ability to pay. One judge even remarked on the designer purse being carried by a person who asked for a free attorney. Scrutiny of this kind will be ongoing throughout the case.

Help for Persons Denied Free Counsel

There are also other remedies in addition to suing the State and individuals within the state system for the failure to provide you with a free attorney.

If there are multiple people who have been victimized, another kind of relief is known as a "class action" suit, where one person sues on behalf of an identifiable category of people who seek redress. These cases can be brought in state or federal courts, depending on the type of claim and class.

Other means of getting free legal counsel may also be available. People who have been convicted and sent to jail without having been provided counsel can file a "habeas corpus petition" in federal court. You can then make a written request for the appointment of counsel for the proceeding.

Often, local attorneys who are licensed in the local federal district court are randomly selected to provide free representation for such petitioners. The federal court system has not, as yet, been hit with the financial troubles that some state court systems (such as Georgia) are experiencing.

Finally, many groups provide free legal representation to persons who can verify their financial hardship. Such groups include volunteers from local bar associations, legal clinics from nearby law schools, and public interest groups who assist persons with legal needs within their scope. Even if these groups do not specialize in the area for which you need counsel, they might be of assistance to help you make a proper and compelling request for free legal counsel.

Questions for Your Attorney

  • If I've been charged with a crime and need free counsel, does the court system also pay for costs related to the defense?
  • Can I receive money to pay for a lawyer of my choice if I already have a defense lawyer, but can't afford to pay fees?
  • What steps should I take to protect my rights if the court cites financial problems in denying my request for free counsel? Can the proceedings be put on hold?
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