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Public Defender’s Duties

A Public Defender is a lawyer who is appointed by the court in criminal charges to represent persons unable to defend themselves for lack of finances. In Gideon v. Wainwright, (1963), the right to counsel —as per the Sixth Amendment of the United States Constitution — was held as a fundamental right. Below, Legal Experts answer questions related to legal rights to public defense and public defender duties.

Can I request for another public defender if the one representing me has not represented me properly?

The procedure for changing your public defender is to contact the public defender’s office and request to be assigned another public defender. However, you will have to prove that the public defender actions were such so as to make your request for replacement justifiable.

In case the public defender’s office refuses to assign another defender, you may request the judge to issue an order for a new public defender. If this too fails, you still have the option of appealing any guilty verdict under the grounds of "ineffective assistance of counsel" and request a new trial.

After I filed a motion for continuance, which the judge has not yet responded to, my public defender told me that she is filing a motion for withdrawal from representing me. Should I wait for the judge to respond or should I file another motion of continuance now that I need to find another public defender?

If your public defender withdraws representation at a time when you have filed a Motion for Continuance, you may file an Amended Motion to Continue. You may attach a copy of the attorney's Motion to Withdraw as an exhibit and request the judge that your Motion to Continue be reviewed in the light of these facts. Of course, you must first wait till your attorney files a Motion to Withdraw.

I missed attending court for a traffic case at the felony level for alleged evading arrest as my public defender did not advise me on the revised hearing dates. What protective measures can I pursue against the public defender?

You will need to immediately report to court and meet the judge to explain your situation. Since they did not make you sign a subpoena to appear on that day, you are in a favorable position. However, you will need to act immediately in order to make your position strong and possibly before the public defender reports you to the judge (though most likely they will only report that they forgot to get you the notice). By acting immediately, you will be able to impress upon the court that it was only a mistake and that you acted in a timely manner as soon as you found out about it.

Finally, it is your personal call as to whether you wish to continue using the services of the public defender.

If I am unable to afford an attorney or get a public defender as the case is less than two weeks old, will I have to defend the case myself? How do I file for a Motion of Continuance and who do I notify?

As a defendant, you have the legal right to representation by a Public Defender if you are unable to afford a private attorney. In your particular situation, since the case is less than two weeks old, you may file a request for a Public Defender along with your Motion for Continuance. In such cases, the court examines a person’s assets to determine whether or not he/she is capable of hiring the services of a private attorney.

The Motion for Continuance must be filed during the judge’s next “motion hour”, which is typically heard once every week. Contact the court clerk to find out when how far in advance you will need to file. On the day of the Motion, you may state your reasons for continuance.

You must send a copy of the Motion to the plaintiff’s attorney, who is usually the prosecutor. If the prosecutor agrees to your Motion, then you will only need to prepare an “agreed order for continuance” and submit it to the judge for approval.

Typically, Public Defenders are hired only for criminal cases. In civil cases, if the defendant is not able to afford a private attorney, he/she may seek help from Legal Aid or Legal Services. They represent both civil and criminal cases. Defendants may also contact the state bar to seek pro bono attorneys in their area. For more information on a Public Defender’s duties, Legal Experts are available to answer questions.
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