It’s important to ask if your attorney takes court appointments

Most criminal defense attorneys operate a private practice that relies on government money to stay afloat. And that may lead to compromised representation.

So what exactly am I talking about? Let me explain.

Most of you looking for a lawyer for a criminal case think there are two kinds of defense attorneys: “appointed” attorneys that the government assigns to poor people that can’t afford a lawyer, and private attorneys who run a business representing criminal defendants. If you’re paying good money for an attorney, you’d just assume that your lawyer is a competent business person who will put real time into your case and limit the number of clients — a classic quality over quantity practice. But if you catch a case in many parts of Texas, including big suburban counties like Montgomery, your assumptions would be wrong.

In Montgomery County there is no Public Defender Office. Instead, felony court Judges literally have a “defense attorney draft” each year, selecting 11 attorneys that are assigned to their court. These attorneys are then fed tons of cases — potentially over a 100 felonies a year on average. The majority of Texas counties operate this way. Rather than pay for a public defender office, they contract with private attorneys to handle “court appointed” cases on a modest flat fee basis.

But these court-appointed attorneys also run a private practice. They hang a shingle and get clients just like any other lawyer on the courthouse square. So when you hire an attorney already on the appointment list, you’re fighting for face time with the dozens of appointed clients your lawyer has to deal with.

Why does this matter? Because the current level of felony appointments per lawyer in Montgomery and other counties far exceeds the 91 felony cases that defense attorneys believe they can competently handle per year, as evidenced in a recent survey reported in The Guidelines for Indigent Defense Caseloads published by the Texas Indigent Defense Commission. That’s right — lawyers themselves think they can only effectively handle 91 felony cases a year, but are often being appointed to more than 100 felonies per year (sometimes more than 140 a year!). And that figure of appointed cases doesn’t even include all the cases that the lawyer gets hired on, and doesn’t include misdemeanor cases. Don’t believe me? Check out the report yourself — specifically page 31, figure 8-4 (follow the link above).

Curious about your lawyer? You can search individual court-appointed case loads by going to the TIDC database. It’s a great resource.

Good representation is all about putting in the time. If you’re competing with dozens of court-appointed clients for your lawyer’s attention, something has to give.

I’m obviously biased here. My law partner and I made a decision years ago to not accept court appointments except in rare circumstances (in the past few years, Tracy was appointed to be a prosecutor on a misdemeanor case and I was appointed as counsel for a post-conviction writ of habeas corpus at the request of another lawyer ). We decided to walk away from the county money because we felt it was the only way to really build a criminal law practice that put the client first. Over the years we’ve never regretted the decision, nor have our clients!

If you want to read more about the problem with “hybrid” court appointment systems and how judges and District Attorney Offices actively fight the Legislature’s attempt to set up real Public Defender Offices, check out this well-researched article in Texas Monthly.