Public Defender or Private Attorney in California: How Should You Decide?

Q: Can I switch from a public defender to a private attorney in the middle of my case?

Yes. A defendant may retain private counsel at any time, and the new lawyer files a substitution of attorney with the court. The court will generally accept the substitution unless it is made on the eve of trial for the purpose of delay. Before switching, ask the private attorney candidly whether a change at this stage is likely to improve the outcome, because sometimes the honest answer is no.

Q: Can I get a different public defender if I do not like mine?

Only through a Marsden motion, and only for good cause. Under People v. Marsden (1970) 2 Cal.3d 118, the court must hear your reasons in a closed hearing and will replace appointed counsel if the lawyer is not providing adequate representation or the relationship has broken down so completely that effective representation is impossible. Disagreement about strategy or a plea recommendation is usually not enough. You may also represent yourself under Faretta v. California (1975) 422 U.S. 806, which is almost never a good idea in a criminal case.

Q: Do public defenders handle the DMV hearing after a DUI arrest?

Generally no. Public Defender offices in California typically limit their representation to the criminal case, and the DMV administrative per se hearing is a separate civil proceeding. The hearing must be requested within ten days of the arrest, so a defendant who intends to rely on appointed counsel for the criminal case should either request the hearing personally or retain private counsel for that limited purpose right away.

Q: Is a private attorney always better than a public defender?

No. Public defenders are experienced trial lawyers with deep knowledge of their courthouses, and many of the best criminal defense lawyers in Southern California began their careers in those offices. The advantages of private counsel are earlier involvement, lower caseloads, the ability to handle related proceedings, and your freedom to choose and change lawyers. Whether those advantages justify the cost depends on your case.

Q: What questions should I ask a criminal defense attorney before hiring one?

Ask about experience, plan, cost, and communication. How many cases with this charge has the lawyer handled at this courthouse? What are the realistic range of outcomes, and what would have to be true for the best one? What are the first three things the lawyer will do? What exactly does the fee cover, in writing, and what could cost more? How and how often will the lawyer update you? Clear answers are the sign of a lawyer who has done this before.

Daniel Gramling, Esq.

1 day ago

11 min read

Should You Use a Public Defender or Hire a Private Attorney in California?

The short answer: if you cannot afford a lawyer, the court will appoint one, and California's public defenders are experienced criminal trial lawyers who know their courthouses well. If you can afford private counsel, the real advantages are timing, selection, and attention: a private attorney can start before charges are filed, can handle related matters such as the DMV hearing in a DUI case, and carries a smaller caseload. Neither choice guarantees a result, and the right answer depends on the charge, the stage of the case, and your resources.

Why this question matters right now. People usually ask it in the days after an arrest in Riverside, San Bernardino, Los Angeles, or Santa Ana, when the first court date is weeks away and the police report has not been written. The decision affects what happens during that window, who you will speak with about the case, and how the first appearance at the Riverside Hall of Justice, the San Bernardino Justice Center, or the Clara Shortridge Foltz Criminal Justice Center will go. This guide lays out the law, the practical differences, and the questions to ask, without pretending that one answer fits every case.

Who Qualifies for a Public Defender in California?

The constitutional right. The Sixth Amendment guarantees counsel to anyone facing a criminal charge that can result in incarceration, and the state must provide a lawyer to those who cannot afford one. Gideon v. Wainwright (1963) 372 U.S. 335 established that right in felony cases, and Argersinger v. Hamlin (1972) 407 U.S. 25 extended it to misdemeanors that carry possible jail time. In California, Penal Code section 987 directs the court to appoint counsel for a defendant who wants a lawyer and cannot afford one.

How the court decides. At arraignment, the judge asks whether you have a lawyer and whether you can afford one. Most courts have you complete a short financial declaration, and the Public Defender's Office may conduct its own screening. Eligibility turns on income, assets, dependents, and the seriousness of the charge; a person facing a felony with a modest income frequently qualifies even when the same person would not qualify for a minor misdemeanor. If the Public Defender has a conflict, for example because it represents a co-defendant or the complaining witness in another case, the court appoints the Alternate Public Defender or a conflict panel attorney.

Cost of appointed counsel. California eliminated most of the administrative fees that counties once charged for appointed counsel, and in most cases the Public Defender's services are provided at no cost to an eligible defendant. Ask the court or the Public Defender's Office directly about any cost in your county rather than assuming, because practices have changed in recent years.

You do not choose your public defender. An appointed lawyer is assigned by the office, usually by courtroom. You can ask the court to replace appointed counsel through a motion under People v. Marsden (1970) 2 Cal.3d 118, but the court grants that motion only when there is an actual breakdown in the relationship or inadequate representation, not because of a personality conflict or a disagreement over strategy. Retained counsel, by contrast, can be substituted at any time by filing a substitution of attorney, subject to the court's scheduling concerns.

What Public Defenders Do Well

Courtroom experience. Deputy public defenders in Riverside, San Bernardino, Los Angeles, and Orange County try more jury trials than almost any private lawyer. They know the judges, the deputy district attorneys, and the unwritten practices of each courthouse, from how the Rancho Cucamonga courthouse handles misdemeanor calendars to how the Southwest Justice Center in Murrieta schedules preliminary hearings. That institutional knowledge is valuable and should not be dismissed.

Office resources. Public Defender offices employ investigators, paralegals, social workers, and immigration specialists, and they have ready access to experts in DUI science, forensic evidence, and mental health. For a defendant pursuing mental health diversion under Penal Code section 1001.36, a public defender's social work team can assemble the treatment plan the court requires.

No financial pressure on strategy. Because the client is not paying by the hour, there is no concern that the lawyer is recommending a trial, or a plea, for financial reasons. The advice is driven by the case.

What Public Defenders Usually Cannot Do

Start before arraignment. This is the most important practical difference. The Public Defender is appointed at the first court appearance, which means no lawyer is working for you during the weeks between arrest and arraignment. That window is when a filing deputy district attorney decides what to charge, when video and witness statements disappear, and when a lawyer's call can produce a lesser filing or no filing at all. Our guide to what prosecutors look at before filing charges explains why pre-filing advocacy matters.

Handle the DMV hearing. In a DUI case, the DMV administrative suspension is a separate proceeding that must be requested within ten days of the arrest, and Public Defender offices generally do not represent clients at that hearing. The DMV hearing after a DUI also produces sworn testimony from the arresting officer and the DMV's copy of the evidence, which is useful in the criminal case. A defendant with appointed counsel typically handles the DMV side alone or hires private counsel for that piece.

Give the case unlimited time. Deputy public defenders carry heavy caseloads. They are skilled at triage, but a client who wants to meet for an hour to go through every page of discovery, or who needs frequent updates for an employer, a licensing board, or an immigration attorney, will often find that attention easier to obtain from retained counsel. This is a matter of time, not competence.

Represent you in related proceedings. A criminal charge often arrives alongside a domestic violence restraining order in family court, a custody dispute, a professional licensing inquiry, or a school or employer proceeding. Appointed counsel represents you only in the criminal case. A private attorney, or a firm that practices both criminal and family law, can coordinate those matters so that a statement in one proceeding does not damage another, as we explain in how a domestic violence arrest affects child custody.

What a Private Criminal Defense Attorney Adds

Immediate involvement. A retained attorney can go to work the day of the arrest: requesting the DMV hearing, contacting the filing deputy, preserving surveillance video from a business in Ontario or a gas station in Moreno Valley before it is overwritten, interviewing witnesses, and preparing the release argument for the first appearance. In our experience, the cases that end with no charges filed or with a misdemeanor instead of a felony are usually the cases where a lawyer was involved before the complaint was filed.

Your choice of lawyer. You can interview several attorneys, ask about their experience with your specific charge and courthouse, and choose the one whose approach fits. If the relationship does not work, you can change lawyers. That control matters to many clients, particularly in cases that may take a year or more to resolve.

Limited-scope and flat-fee options. Private representation is not all or nothing. Some firms, including ours, offer flat-fee criminal defense and limited-scope options, such as handling only the DMV hearing, only a bench warrant recall, or only a motion to reduce a felony under Penal Code section 17, subdivision (b) or an expungement petition under Penal Code section 1203.4. A defendant who cannot afford full representation on a felony may still afford counsel for the single stage that matters most.

Appearances without you. Both public defenders and private attorneys can appear for a misdemeanor client under Penal Code section 977, subdivision (a), but a private attorney can also schedule around your work and travel to the courthouse that has your case, whether that is the Compton Courthouse, the Van Nuys courthouse, or the Larson Justice Center in Indio. Our same-day guide to what to expect at the Compton Courthouse shows how much of a misdemeanor case can be handled without the client in the courtroom.

How Do Criminal Defense Attorneys Charge in California?

Fee agreements must be in writing. Business and Professions Code section 6148 requires a written fee agreement, signed by the client, whenever it is reasonably foreseeable that fees will exceed one thousand dollars, and the agreement must state the basis for the fee, the services covered, and the responsibilities of lawyer and client. A lawyer who will not put the fee in writing should not be hired. Rule 1.5 of the California Rules of Professional Conduct also prohibits unconscionable fees and sets rules for flat fees paid in advance.

Flat fees. Many criminal defense attorneys charge a flat fee for a defined stage of the case, such as all pretrial work through the preliminary hearing or through the final pretrial conference, with a separate fee if the case goes to trial. Ask exactly what the flat fee covers, what triggers an additional fee, and whether any portion is refundable if the case ends early.

Hourly fees. Some attorneys bill hourly against a deposit. This can be appropriate in complex felony cases where the amount of work is unpredictable, but it requires the client to monitor the bills and to understand that a trial can cost far more than the initial deposit.

Red flags. No attorney can ethically guarantee a dismissal, a particular sentence, or a result at the DMV. Rule 7.1 of the Rules of Professional Conduct prohibits false or misleading communications about a lawyer's services, and a promise of a specific outcome is a reason to walk away. Be cautious about any lawyer who claims special influence with a judge or prosecutor, who will not explain the fee, or who pressures you to sign before you have asked your questions.

How to Decide Between a Public Defender and a Private Attorney

Ask what stage you are in. If you were arrested yesterday and your court date is six weeks away, time-sensitive work is available now, and only a retained lawyer can do it. If you are already at arraignment with a public defender assigned, the calculation changes, and switching may or may not be worth the cost depending on what has happened so far.

Ask what is really at stake. A first-offense misdemeanor with no immigration, licensing, or custody consequences is a different decision from a felony strike, a DUI with a commercial license, or a domestic violence charge during a divorce. Our guides to whether you need a lawyer for a misdemeanor and whether you need a lawyer for a first DUI walk through the consequences that are easy to miss.

Ask about related proceedings. If there is a DMV hearing, a restraining order, a custody case, a licensing board, or immigration exposure, you need someone handling the whole picture. Under Padilla v. Kentucky (2010) 559 U.S. 356 and Penal Code section 1016.3, every defense lawyer must advise a noncitizen about immigration consequences, but coordinating with immigration counsel and the family law case takes time that appointed counsel may not have.

Ask the lawyer the right questions. Whether you are meeting a deputy public defender in the hallway or interviewing private counsel, ask how many cases like yours the lawyer has handled at this courthouse, what the realistic outcomes are, what the first three steps will be, how you will communicate, and what the lawyer needs from you. A clear, specific answer tells you more than any advertisement.

Remember the standard is effective representation, not perfection. Under Strickland v. Washington (1984) 466 U.S. 668, every defendant is entitled to competent counsel whose performance does not fall below an objective standard of reasonableness. Both public defenders and private attorneys meet that standard in the overwhelming majority of cases. The decision is about timing, attention, and fit, not about whether one kind of lawyer is competent.

Frequently Asked Questions

Can I switch from a public defender to a private attorney in the middle of my case?

Yes. A defendant may retain private counsel at any time, and the new lawyer files a substitution of attorney with the court. The court will generally accept the substitution unless it is made on the eve of trial for the purpose of delay. Before switching, ask the private attorney candidly whether a change at this stage is likely to improve the outcome, because sometimes the honest answer is no.

Can I get a different public defender if I do not like mine?

Only through a Marsden motion, and only for good cause. Under People v. Marsden (1970) 2 Cal.3d 118, the court must hear your reasons in a closed hearing and will replace appointed counsel if the lawyer is not providing adequate representation or the relationship has broken down so completely that effective representation is impossible. Disagreement about strategy or a plea recommendation is usually not enough. You may also represent yourself under Faretta v. California (1975) 422 U.S. 806, which is almost never a good idea in a criminal case.

Do public defenders handle the DMV hearing after a DUI arrest?

Generally no. Public Defender offices in California typically limit their representation to the criminal case, and the DMV administrative per se hearing is a separate civil proceeding. The hearing must be requested within ten days of the arrest, so a defendant who intends to rely on appointed counsel for the criminal case should either request the hearing personally or retain private counsel for that limited purpose right away.

Is a private attorney always better than a public defender?

No. Public defenders are experienced trial lawyers with deep knowledge of their courthouses, and many of the best criminal defense lawyers in Southern California began their careers in those offices. The advantages of private counsel are earlier involvement, lower caseloads, the ability to handle related proceedings, and your freedom to choose and change lawyers. Whether those advantages justify the cost depends on your case.

What happens if I cannot afford a lawyer but do not qualify for a public defender?

Ask the court to reconsider and explore limited-scope help. Eligibility decisions can be revisited if your circumstances change or if the charge is more serious than the court first understood. Many private attorneys offer payment plans or limited-scope representation for the stage that matters most, and the court will not proceed against a defendant who faces jail without counsel unless the defendant knowingly waives that right.

What questions should I ask a criminal defense attorney before hiring one?

Ask about experience, plan, cost, and communication. How many cases with this charge has the lawyer handled at this courthouse? What are the realistic range of outcomes, and what would have to be true for the best one? What are the first three things the lawyer will do? What exactly does the fee cover, in writing, and what could cost more? How and how often will the lawyer update you? Clear answers are the sign of a lawyer who has done this before.

Talk to a Criminal Defense Attorney Before Your First Court Date

Gramling Law Group defends misdemeanor and felony cases at the Riverside Hall of Justice, the Southwest Justice Center in Murrieta, the San Bernardino Justice Center, the Rancho Cucamonga and Fontana courthouses, the Clara Shortridge Foltz Criminal Justice Center, the Compton, Van Nuys, and Pomona courthouses, and the Central Justice Center in Santa Ana, serving the Inland Empire, Los Angeles County, Orange County, and Southern California. The firm also practices family law, which allows it to coordinate a criminal case with a restraining order or custody matter arising from the same incident. Daniel Gramling, Esq. offers flat-fee criminal defense and limited-scope options so that clients know the cost before the case begins. Call (909) 654-4575 or contact us through this website for a consultation.

This article is educational and is not legal advice. Reading it does not create an attorney-client relationship. It addresses California law only.