Assigned Counsel FAQ’s

You’ve likely heard these words on countless TV shows and movies, “If you cannot afford an attorney, one will be provided for you.”  It’s a part of the “Miranda Warnings” that law enforcement give before they are permitted to interrogate you to gather evidence for their case.  It likely isn’t something you paid much attention to, unless you need an attorney and can’t afford one.”

The right to counsel is a fundamental right under our constitution, and if you are unable to pay for your own lawyer, the Government will pay one to represent you.  In New York, there are generally three types of programs that will provide an attorney free of charge to an “indigent” defendant, which vary by county.  Nonetheless, most populated counties will provide an attorney from : (1)The Public Defender’s Office, (2) The Conflict Defender’s Office or, (3)The Assigned Counsel Program.

The first two (Public Defenders and Conflict Defenders) employ a staff of attorneys on salary.  In general, more congested urban courts will have an individual attorney from the Public Defender’s office assigned to each Court or each Judge within a Court.  The Assigned Counsel Program contracts with private lawyers and pays them based upon the time they spend on a case.  Currently, New York State pays $75.00 an hour to attorneys that agree to handle a felony case.  These attorneys submit an invoice to the Assigned Counsel Program when the case is completed.

If you have been arrested and you are unable to afford an attorney, this page may give you a better understanding of the Assigned Counsel Program and Assigned Attorneys in General.

What is assigned counsel?

When you are charged with an violation of the law, it means you are a defendant in a criminal action.  If you are charged with an offense is punishable by a sentence which includes incarceration, you have the right to have an attorney represent you.  If you cannot afford an attorney, the Court may appoint one that will be paid by the County to handle your case, under a program that is commonly referred to as the Assigned Counsel Program.  In Erie County, that program is actually called the “Aid to Indigent Prisoners Society, Inc.”.

Funding for the Assigned Counsel Program comes from County and State Government funds.  These funds are not controlled by the Court, but a separate agency which operates under laws and rules designed to ensure quality representation.  Currently, attorneys may bill as much as $4400 on a felony case.  In more complex matters, an attorney may apply for compensation in excess of that amount, but must substantiate his request in a sworn affidavit.

The Erie County Assigned Counsel Program also requires completion of an affidavit by the Client.  Here’s a blank copy of the form used: Assigned Counsel Affidavit. 

How do I get an attorney assigned?

At your first court appearance the Judge will advise you that you are entitled to an attorney, and ask if you intend to retain one.  If you indicate that you cannot afford an attorney, the judge will likely ask you a series of questions, including questions about your financial situation, to see if it is likely that you would qualify for the assigned counsel program.    The program is designed for people that are truly indigent and do not have disposable income, savings or assets that could be liquidated to retain a private lawyer.

Generally, if you are unemployed, do not own a home or vehicle, and have no assets of substantial value, you may qualify to have an attorney assigned to you.

If the judge thinks you will qualify for the program, he will send a notice to the Assigned Counsel Program asking them to provisionally assign an attorney to your case.  That attorney will contact you at or before your next court appearance to verify your eligibility for the program and get some initial information about your case.  If you do not hear from an attorney prior to your next court appearance, you may wish to contact the Assigned Counsel Program to find out who has been assigned to your case. You can also obtain the lawyer’s contact information from them as well.

Can I choose which attorney I get?

While the Assigned Counsel Program goes to great lengths to ensure quality representation for all of its clients, it does not allow clients to select their own attorney.  You can always ask them to consider assigning a particular attorney, but there are a number of factors that may prevent them from granting your wish.  Once you have been assigned an attorney, it is unlikely that you will be permitted to change to a different assigned attorney.  You may, at any point, retain a lawyer of your own if you are not satisfied with the work of your assigned attorney.

Isn’t it better to hire my own attorney?

First, its important to keep in mind that once an attorney is assigned to your case, he is your attorney, and has the same obligations to you as he would if you had retained him yourself.  While you are not responsible to pay for your assigned attorney’s services, your attorney will be compensated for his work.  In fact, in some instances, an Assigned Attorney may actually earn significantly more from an Assigned Client than he would if he were retained.  The Assigned Counsel Program pays attorneys on an hourly basis, at a rate of $60 or $75 an hour.  That hourly rate is well below market value for most skilled and experienced criminal defense attorneys, but most attorneys will accept assigned cases because they are assured of being paid for all of the time they spend on the case, and do not have to worry about collecting from the client after the case is closed.    Accepting assigned cases also provides more diverse cases and clients which may have additional value to the attorney.

The Assigned Counsel Program has stringent standards for attorneys that accept assigned cases, and require each attorney to attend numerous training programs before they are permitted to accept cases.   The program also reviews the attorneys in the program on a regular basis by requesting feedback from other attorneys, judges and clients.  That said, there is no guarantee that you will be satisfied with your attorney, mostly because you did not individually select him.  Communication is important, and if you are having a hard time communicating effectively with your assigned attorney, you may be more comfortable retaining a different one.  You may ask the Court to assign you a different attorney, but it is very unlikely that the Court will do that unless there is a serious issue.

As a practical matter, the Assigned Counsel Program has greater resources to provide services such as expert witnesses and private investigators and in most serious cases, you may be better off with an assigned counsel attorney than you would be if you borrowed money from friends and family to hire one.  In some cases, you may be doing more harm than good by hiring a lawyer yourself.  Hiring a lawyer at a bargain basement rate in stead of keeping an assigned attorney is a common mistake.  Quality legal representation takes time

If you are uncomfortable with your assigned attorney, it may be best to talk to the attorney about your concerns. You may be able to resolve any issues you have and make yourself more comfortable in the process. Like anything in life, there are good lawyers and bad lawyers, and it would be untruthful to say that all of the attorneys in the Assigned Counsel Program will obtain the best results in your case.  On the other hand, most of the area’s very best defense attorneys participate in the Assigned Counsel Program or the Criminal Justice Act Panel, and it would be a mistake to conclude that the attorney you are assigned is not a good attorney merely because he or she has been assigned.

It is a common misconception that Public Defenders and Assigned Attorneys are not as effective as retained attorney.  In fact, the fact that an attorney accepts assigned cases is no indication of the quality of their work.  There are a number of reasons why many attorneys take assigned cases, and each attorney likely has his or her own reasons.  I can only speak for myself.  I accept assigned counsel cases because I do not believe that a person’s wealth or financial status should effect his or her legal rights.   It is my belief that everyone should have access to the best representation.   While it may sound arrogant, it is my hope that by continuing to accept assigned clients, I am doing my part to provide high quality representation to people that would otherwise be unable to afford it.

Forms for Assigned Counsel Clients

Assigned Counsel Affidavit