Public defenders are appointed by the court. Depending on which court your case is in, you will either be appointed counsel from the Salt Lake Legal Defender Association, or a private firm which contracts to represent indigent defendants for various cities and counties.
The first step in being appointed a public defender is to appear in court. This can be frustrating, as the first thing you want to do when you are charged or arrested is speak with your attorney. Public defenders are very busy, carrying many cases at once. For this reason, you will not usually be able to speak with a public defender until he or she has been appointed to you in court. Until the judge orders them to be appointed on your case, they are not your defense attorney. To get them on your case, you need to appear in court and fill out an Affidavit of Impecuniosity (also known as an Affidavit of Indigency). The judge might ask you questions about your income and monthly expenses to determine if you qualify for a public defender.
If they determine that you do, the public defender will generally set a new hearing and you will come back on a different day. That date is when you will speak in detail to your attorney. Sometimes the public defender will have time to meet with you that same day, and sometimes the public defender is not in court when the judge appoints them so you will have to wait until your next court appearance.
Determining if you qualify for a public defender largely depends on the judge and which court your case is in. Some courts and judges are more lenient in their definition of indigence than others. The State of Utah has a statute which defines an indigent person as someone who:
- Does not have sufficient income, assets, credit, or other means to provide for the payment of legal counsel and all other necessary expenses of representation without depriving that person or the family of that person of food, shelter, clothing, and other necessities; or
- Has an income level at or below 150% of the United States poverty level as defined by the most recently revised poverty income guidelines published by the United States Department of Health and Human Services; and
- Has not transferred or otherwise disposed of any assets since the commission of the offense with the intent of establishing eligibility for the appointment of counsel under this chapter.
(from UT Code Ann. 77-32-202)
Sometimes. The State of Utah has a provision which allows the courts to “recoup” some of the money they pay for your case. Recoupment is set by the judge at the time of your sentencing, and you pay it along with your fine directly to the court. It can range in price, but in our experience it is between $100 and $200. You have the term of probation to pay it and your fine in full, and the court will often require a minimum monthly payment based on your ability to pay and the length of the probation.
If you do not qualify for a public defender, you have three options.
- You can choose to defend yourself, known as pro se representation. This is never recommended, even for a minor offense. Even traffic offenses can affect you, particularly if a driver’s license is required for your job.
- You can hire a private attorney. This can be a challenge, because you want to find someone you trust and who will be a good fit for your case. It can be frustrating, because there are a lot of very good attorneys out there to choose from and the court cannot directly refer you to a private attorney. The Utah State Bar also has rules about referring to private attorneys directly, due to policies which do not allow preferential treatment. Your best bet is to meet with or speak with attorneys until you find one that charges a fair price that you can afford, and who gives you a good feeling about how they will handle your case. Friends and family might also have good information about their experiences with criminal attorneys, and other types of attorneys can usually recommend someone they have worked with before and who they trust.
- You can go to Open Legal Services, which is a nonprofit law firm that charges based on your income. Open Legal Services has two attorneys with experience in criminal law. One attorney was an intern with a prosecuting agency and the other has done criminal defense almost exclusively. Their rates for representation range from $75 per hour to $145 an hour, based on your income.
Note: Legal Aid and Utah Legal Services do not provide criminal defense services, so these organizations are not an option for representing you in a criminal case.
Open Legal Services is Utah’s first nonprofit law firm for modest means clients. They are dedicated to serving clients who do not qualify for free, pro bono legal services, but cannot afford traditional private firm rates. Their practice areas include criminal defense and family law. They charge anywhere from $75-145 per hour, based on a sliding scale according to your income .