Hiring a Lawyer
A defendant can either hire an attorney or be represented by a court appointed attorney. Attorneys who are hired are called private attorneys. It is important for a defendant to make a decision soon after arrest whether to hire a lawyer or use a court appointed lawyer. An attorney who comes into a case early in the process can begin to plan and strategize, subpoena necessary documents such as phone records and videos while they are still in existence, and interview favorable witnesses while their memory is fresh. The attorney can also monitor the case, speak with the prosecutor, and determine whether a speedy trial is appropriate. An attorney will also be needed to handle the preliminary hearing and bond hearing, important events in the early stage of the case that may affect its ultimate outcome.
A person who can afford to hire an attorney must hire private counsel. A defendant who hires a lawyer has the right to choose who will represent him. Laye v. State,312 Ga. App. 862 (2011). A defendant is entitled to be defended by counsel of his own choosing whenever he is able and willing to hire an attorney and uses reasonable diligence to obtain the attorney. Calloway v. State, 313 Ga. App. 708 (2012). While the judge must provide for representation of an indigent criminal defendant, he is not obligated to appoint counsel for a defendant who is not indigent. Flanagan v. State, 218 Ga. App. 598 (1995); Uniform Superior Court Rule 29.4.
Factors that a defendant should consider in deciding which attorney to hire include: the attorney's background, experience, and expertise in criminal law and with handling cases similar to the defendant's case; the ability of the attorney to devote adequate time to the defendant's case; and whether the defendant can afford the attorney's fees. A lawyer's fees must be reasonable. State Bar of Georgia Rule 1.5. Some attorneys accept payment plans that make it easier for a defendant to afford the lawyer's services. Any understanding as to the fee and any payment plan should be put in writing when the attorney is retained. A defendant should not hire a lawyer expecting a certain result, for example, that the case will be dismissed. A criminal defense attorney cannot guarantee a particular result. All the attorney can do is represent the defendant to the best of the attorney's ability. Contracts that provide for payment based on the favorable conclusion of the case are called contingent fee contracts and are not allowed in criminal cases. State Bar Rule 1.5(d).
Court Appointed Attorneys
The defendant asks to be represented by a court appointed lawyer by filling out an application for appointment of counsel.
When a person is taken to jail the sheriff must: allow the person claiming to be indigent and without counsel to immediately complete an application for an attorney and certificate of financial resources and forward such to the appropriate agency for a determination of indigency; clearly advise the person of their right to a lawyer and that if they cannot afford a lawyer one will be provided to assist them; and accomplish the above procedures as soon as possible after detention. Uniform Superior Court Rule 29.3. In order to protect a defendant's right to counsel the Georgia Public Defender Standards Council has guidelines that call for a public defender to visit a defendant within 72 hours of arrest.
Once it is determined that the defendant is indigent, the judge will authorize the appointment of an attorney for the defendant. Uniform Superior Court Rule 29.2. The defendant may be ordered as part of his sentence to reimburse the county for the cost of the court appointed lawyer. O.C.G.A. §17-1251; State v. Pless, 282 Ga. 58 (2007); Flanagan v. State, 218 Ga. App. 598 (1995). A defendant does not have the right to be appointed the lawyer of his choice. Laye v. State,312 Ga. App. 862 (2011); Amadeo v. State, 259 Ga. 469 (1989). The choice of appointed counsel is a matter governed by the judge's sound exercise of discretion and will not be disturbed on appeal unless that discretion is abused. However, when a defendant's choice of counsel is supported by objective considerations favoring the appointment of the preferred counsel, and there are no opposing considerations of comparable weight, it is an abuse of discretion to deny the defendant's request to appoint the counsel of his choice. Chapel v. State, 264 Ga. 267 (1994); Davis v. State, 261 Ga.221 (1991).
Whether a defendant hires an attorney or is represented by a court appointed lawyer it is important that the defendant be informed about the criminal justice process. The attorney, after consultation with the client, makes the tactical decisions concerning the case including which witnesses to call, whether and how to conduct cross examinations, what jurors to accept or strike, and what trial motions should be made. Fortson v. State, 240 Ga. 5 (1977); Willis v. State, 249 Ga. 261 (1982). The defendant, after consultation with his attorney, makes the decision whether to have a jury trial and whether to testify at that trial. The more informed a defendant is the better he can assist the attorney in defense of the case.