If you aren’t satisfied with a free lawyer, what can you do?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****


Regarding free lawyers in criminal cases:

Numerous agencies and organizations speak out against inadequate legal representation for the poor.[i]  And there have certainly been lawsuits against individual public defenders as well as public defense systems for providing ineffective legal representation.[ii]  All of these sources and the legal rights they champion are either about reforming systems or else about the right to sue a court-provided lawyer after he has botched a case. They do not tell what someone can do if he is currently getting bad help from a free lawyer.

Although someone paying a lawyer could simply fire that lawyer and hire a different one, an indigent defendant might not be able to change lawyers. It is always possible to ask the court appointment system or the public defender’s office for a replacement lawyer. But they may not have spare lawyers available and they will have to be convinced that the inefficient disruption of reassigning a case is worthwhile.

To convince any legal service provider that something is worthwhile, it is wise to describe that thing in its legal context. So, when trying to convey that a different lawyer should be assigned to a case, an indigent client has to be able to convey to the head of the court appointed program or the head of the public defenders office that his legal rights are being compromised by the current lawyer and that the lawyer is not fulfilling his professional obligations.

It is not sufficient to simply make those claims; heads of legal offices are not easily convinced by anyone, certainly not by every complaining client. You have to be able to show how the lawyer is violating your legal rights.

If you think that your Sixth Amendment right to effective assistance of counsel[iii] has been compromised,

  1. explain what the lawyer is supposed to be doing: showing up for meetings, listening to your full story, collecting evidence on your behalf, figuring out how your actions differ from the crimes charged, comparing your situation to past cases, and generally contradicting the prosecutor’s claims in any legitimate way
  2. provide proof of the lawyer’s failure to fulfill these obligations: copies of helpful evidence that he has not used, descriptions (or recordings) of meetings and phone calls in which he has ignored you, a copy of the court’s docket sheet showing that deadlines were missed, affidavits from witnesses who are willing to testify but have not been contacted by the lawyer etc…

If you think that your right to due process has been compromised,

  1. demonstrate the characteristics of proper process: use copies of the defenders’ office’s brochures or Web pages to prove what they claim they’ll do for defendants; bring examples from the ACLU and the Southern Center for Human Rights cases and fact sheets to show what indigent defendants can reasonably expect from their lawyers;[iv] present the ABA’s Ten Principles of a Public Defense Delivery System as recognized standards.
  2. Provide proof that either the office’s standards or those principles identified by legal professional organizations like the ACLU and the ABA have not been applied in your case.

Only with clear direct standards and examples will you be able to convince your lawyer’s boss that in the middle of your case it is already evident that your legal counsel is not effective or adequate.

The Ten Principles of a Public Defense Delivery System
American Bar Association

  • 1. The Public defense function, including the selection, funding, and payment of defense counsel, is independent.
  • 2. Where the caseload is sufficiently high, the public defense delivery system consists of both a defender office and the active participation of the private bar.
  • 3. Clients are screened for eligibility, and defense counsel is assigned and notified of appointment as soon as feasible, after client’s arrest, detention, or request for counsel.
  • 4. Defense counsel is provided sufficient time and a confidential space with which to meet with the client.
  • 5. Defense counsel’s workload is controlled to permit the rendering of quality representation.
  • 6. Defense counsel’s ability, training, and experience match the complexity of the case.
  • 7. The same attorney continuously represents the client until completion of the case.
  • 8. There is parity between defense counsel and prosecution with respect to resources and defense counsel is included as an equal partner in the defense system.
  • 9. Defense counsel is provided with and required to attend continuing legal education.
  • 10. Defense counsel is supervised and systematically reviewed for quality and efficiency according to nationally and locally adopted standards.

If you are not satisfied with an attorney assigned by the legal aid office to help you in a civil case, what can you do?

The legal relationship between clients and legal aid offices is contractual, just like the relationship between paying clients and their private attorneys. And the attorneys who work in legal aid offices are supposed to have the same skills and desire to give their clients the best possible legal representation as the private-pay attorneys. If the lawyer is not providing adequate representation, a client’s best strategy would be to handle it like any other consumer complaint.

The legal aid office might have a formal process for filing complaints. If they don’t have a process, writing a letter is the best way to let them know that you want better service. The letter can be addressed to the lawyer on the case as well as the office supervisor. Like the complaint about inadequate criminal representation described above, this letter should identify exactly what actions have been unsatisfactory and what risks you predict if the lawyer is allowed to continue representing you in that way.

If the case is already over and you believe that you lost because of the lawyer’s incompetence or negligence, you can sue him for legal malpractice claiming ineffective assistance of counsel. In that case, it would be necessary to prove that the lawyer failed “to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances”[vi] and that you lost the case because of that failure. You can also file a professional ethics claim against a bad lawyer. Ethics claims are brought before the state attorney licensing office, not in court.[vii]

[i] The Southern Center for Human Rights has published many reports and articles about inadequate representation of criminal defendants http://www.schr.org/reports/index.htm; The American Bar Association published a comprehensive report after conducting hearings about court-provided criminal defense programs. The report is titled “Gideon’s Broken Promise.”

The American Civil Liberties Union (ACLU) has fought many important cases on behalf of poor people who did not get adequate criminal defense help from public defenders or court appointed lawyers.  The ACLU’s Web site has sample court documents, fact sheets, and news stories.[ii] Cases about ineffective public defenders include Gideon v. Wainwright, 372 U.S. 335 (1963); Miranda v. Clark, 319 F.3d. 465 (9th Cir. 2003); Powers v. Hamilton County Public Defenders Commission docket # 02 CV 00605 (S.D. Ohio 2005) (Brought by clients who were jailed after not being able to afford court costs.)  For broad policy concepts, see the American Bar Association’s page about indigent defense systems. http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/indigent_defense_systems_improvement.html

[iii] Cuyler v. Sullivan, 446 U.S. 335 (1980) and U.S. v. Cronic, 466 U.S. 648 (1984) are two cases that explain adequate and effective legal representation.

[iv] The ACLU no longer publishes a full site about indigent defense information, but your nearest chapter likely has lots of relevant fact sheets and legal pleadings. http://www.aclu.org/affiliates  The Southern Center for Human Rights’ indigent defense information is at http://www.schr.org/reports/index.htm.

[v] The ABA’s Ten Principles of a Public Defense Delivery System are available at http://www.americanbar.org/content/dam/aba/migrated/legalservices/downloads/sclaid/indigentdefense/tenprinciplesbooklet.pdf. The electronic document includes explanatory comments and references to related ABA professional standards.

[vi] 7A CJS Attorney and Client §327.

[vii] The American Bar Association’s Center for Professional Responsibility links to states’ legal ethics codes and attorney licensure offices. http://www.abanet.org/cpr/links.html

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