Private Attorney vs. Public Defender: What Actually Changes in Your Case

Everyone charged with a crime in San Diego has the right to a lawyer, and for most people the practical question is which kind: the public defender the court appoints at no charge, or a private attorney they choose and pay. Most of what is written on the subject is either marketing or loyalty, and neither helps much when you are deciding what to do this week.

This guide is written by a private criminal defense lawyer, so read it with that in mind. It tries to give a fair account of both options and of where the choice makes a real difference.

The short version: the Public Defender's office is staffed by capable trial lawyers who carry far more cases than any one person can give full attention to, and the differences come down to time, timing and choice.

What a Public Defender Is and Where the Right Comes From

The Sixth Amendment guarantees a person accused of a crime the assistance of counsel. In Gideon v. Wainwright, decided in 1963, the United States Supreme Court held that a state must provide a lawyer to a felony defendant who cannot afford one. Later decisions extended the rule to misdemeanors that result in jail, and California goes further: anyone charged with a misdemeanor or a felony here who cannot afford counsel gets an appointed lawyer.

The California mechanism is Penal Code section 987. When you appear for arraignment without a lawyer, the judge must advise you of the right to counsel and, if you cannot afford one, appoint one. In San Diego that appointment goes to the Office of the Public Defender, which Government Code section 27706 makes responsible for defending anyone not financially able to employ counsel. A public defender is a licensed attorney employed by the county who owes you the same duties as any retained lawyer, and the county has no say in how your case is defended.

How the San Diego County Public Defender Is Appointed

The Department of the Public Defender staffs every criminal branch of the Superior Court: the downtown Central Courthouse at 1100 Union Street and the Vista, El Cajon and Chula Vista courthouses. Its deputies are in those courtrooms daily.

Appointment happens at arraignment, your first court appearance. If you are in custody at San Diego Central Jail, Las Colinas or the Vista Detention Facility, that hearing takes place within 48 hours of arrest, excluding Sundays and holidays; if you were cited or released on bail, the date is on your paperwork. If you tell the judge you cannot afford a lawyer, the court appoints the Public Defender after a brief financial inquiry. Section 987 allows the court to require a financial statement under penalty of perjury, and the standard is inability to hire private counsel, not a fixed income cutoff.

One office cannot represent codefendants whose interests conflict, so the county maintains separate offices: the Alternate Public Defender takes a case when the primary office has a conflict, and the Multiple Conflicts Office takes the next one. If all three are out, the court appoints a private conflict attorney at county expense. In every instance you are assigned a lawyer; you do not pick one.

Are Public Defenders Good Lawyers?

Yes, and anyone who says otherwise is not being straight with you. Deputy public defenders in San Diego try more jury cases in a year than many private attorneys try in several, and they know every judge and prosecutor in the building. Serious felonies go to attorneys with years of experience.

The problem is not skill. It is arithmetic. A deputy may be responsible for dozens or even hundreds of open cases at once, and workload studies have repeatedly found public defense caseloads far above what a lawyer can carry while fully investigating each one. In practice, your first real conversation often happens in the hallway on the day of the hearing, returned calls can take days, and the plan in a routine case tends toward whatever resolution is typical for that charge. That is not a criticism of the person. It is what a heavy caseload does.

Public Defender vs. Private Attorney: The Real Differences

Here is what actually changes when you hire a private criminal defense attorney rather than accepting an appointed one.

• Time per case. A private attorney decides how many clients to take, and a small office takes far fewer than a public defender is assigned. That time goes into discovery, meetings outside court and motions.
• Choosing your lawyer. Appointed counsel is whoever is assigned to that courtroom. With a private attorney you interview the person and decide whether you trust them.
• Continuity. On many misdemeanor calendars the appointed lawyer at arraignment, at the readiness conference and at trial can be three different people. A private attorney handles the case from the first call to the last hearing.
• Work before charges are filed. A public defender is appointed only after a case exists. A private attorney can be retained the day of the arrest and contact the prosecutor before a filing decision is made. This is the largest structural difference.
• Investigators and outside witnesses. The Public Defender has staff investigators and can seek court funds for toxicologists and forensic examiners, but those resources are shared across the office. A private attorney's investigation is limited only by the budget you agree on.
• Availability outside court. A private attorney gives you a direct number and, in this office, answers it at night and on weekends.
• Related proceedings. The appointment covers the criminal case in Superior Court, not the DMV hearing after a DUI arrest, a licensing board inquiry or coordination with immigration counsel.
• Cost. A public defender is provided at no charge. A private attorney charges a fee, discussed below.

Pre-Filing Representation: Why Timing Is the Biggest Difference

In San Diego, an arrest does not mean charges have been filed. The police report goes to the District Attorney, who prosecutes all felonies county-wide and misdemeanors outside the City of San Diego, or to the San Diego City Attorney, who prosecutes misdemeanors inside city limits. A reviewing deputy decides whether and what to file. For an in-custody arrest that takes a couple of days; for someone cited or released it can take months, and under Penal Code section 802 the prosecutor has a year to file most misdemeanors.

During that window no public defender exists for your case, because the court cannot appoint one until there is a case. A private attorney can deliver to the reviewing prosecutor the text messages, witness statements, medical records or surveillance footage the police report left out, and ask that no charges be filed or that a felony be filed as a misdemeanor. The Law Office of Marc S. Kohnen has done this work in domestic violence, assault, theft and DUI cases since 2008. Every case is different and prior results do not guarantee a similar outcome.

The window also matters for evidence. Surveillance video is overwritten on a schedule, often within days, and a lawyer hired in the first week can send preservation letters while the trail is fresh.

What a Private Criminal Defense Attorney Costs in San Diego

Most San Diego criminal defense attorneys charge a flat fee for a defined stage of the case, such as everything short of trial. Some charge hourly against a retainer, which is more common in complex felony and federal cases. California requires the agreement to be in writing in nearly every case, and you should read it for exactly what it covers.

Fees vary widely. A first-offense misdemeanor handled through resolution is generally priced in the low thousands of dollars, a DUI somewhat more because of the DMV hearing, a felony considerably more, and a felony jury trial can reach tens of thousands.

A public defender costs you nothing. Older articles mention Penal Code section 987.8, which once let a judge order reimbursement of appointed-counsel costs after an ability-to-pay hearing. The Legislature repealed that authority effective July 1, 2021, and Penal Code section 1465.9 made unpaid balances under it unenforceable.

When a Public Defender Is the Right Choice

Accepting appointed counsel is often a sound decision, and a private attorney who says otherwise in every case is not giving honest advice. A public defender is likely the right choice when:

• You cannot afford private counsel without real hardship. A lawyer you cannot pay is not a better lawyer.
• Charges are already filed and the case is a routine misdemeanor with a predictable resolution that any experienced lawyer will reach.
• The evidence is strong, the realistic goal is a standard disposition such as diversion or a reduced plea, and the appointed lawyer has already proposed it.
• You have an appointed attorney you trust who has explained the plan. Switching lawyers mid-case has costs of its own.

When Hiring a Private Attorney Matters Most

Private counsel changes the most where time, timing or collateral consequences dominate. Those cases include:

• Before charges are filed. If you have been arrested or contacted by a detective and no case exists yet, only private counsel can work in the pre-filing window.
• Professional licenses. Anyone with a state license, from nurses to contractors, faces a separate board process, and the plea that ends the criminal case can be the one that ends the license.
• Immigration status. For anyone who is not a United States citizen, the statute of conviction matters more than the sentence. Padilla v. Kentucky requires every defense lawyer to advise on those consequences, but building an immigration-safe plea takes time a heavy caseload rarely allows.
• Serious felonies. Strike offenses, great bodily injury allegations, sex offenses and any case carrying years of exposure justify the investigation a smaller caseload permits.
• DUI. A DUI arrest starts a ten-day deadline to request a DMV hearing under Vehicle Code section 13558, and the Public Defender does not appear at that hearing. Private counsel handles both.
• Cases you intend to fight. A motion to suppress under Penal Code section 1538.5, a defense witness who must be found, or a jury trial all require hours a private attorney can commit.

Can You Switch From a Public Defender to a Private Attorney?

Yes, at almost any point. The new lawyer files a substitution of counsel, appears at the next hearing, and the court relieves the Public Defender. Judges routinely grant these requests because you have a constitutional right to counsel of your choice when you are paying for it. The limit is timing: a court can refuse a substitution that would require continuing a trial about to start, so make the change early.

Replacing one appointed lawyer with another is harder. That request is a Marsden motion, named for People v. Marsden, made in a closed hearing without the prosecutor present. The court grants it only if the representation is inadequate or the relationship has broken down so badly that ineffective representation is likely. Disagreement over strategy is generally not enough.

Questions to Ask Any Criminal Defense Lawyer

Whether you are meeting your assigned deputy public defender or interviewing a private attorney, the questions are the same.

• Who will handle my case at each stage, and will it be the same person at trial?
• How many cases like mine have you handled in this courthouse, and how many have you taken to a jury?
• What are the weak points in the prosecution's case, and what will you do about them?
• What are the consequences for my job, license, immigration status or firearm rights?
• How do I reach you between court dates?
• For a private attorney: what does the fee cover, and what happens if the case goes to trial?

What to Do Next

If you have been arrested in San Diego and charges have not been filed, talk to a lawyer before the prosecutor decides. Do not give a statement to police or a detective, even to explain your side. Preserve what you have: text messages, photographs, the names of anyone present, and any video you can lawfully obtain.

If charges are filed and you have a public defender, ask the questions above and give the lawyer a fair chance. If you want a second opinion, Marc S. Kohnen has defended criminal cases in every branch of the San Diego Superior Court since 2008, is licensed in state and federal court, and has taken cases to jury verdict. The office is at 425 Tenth Avenue, near the downtown courthouse, and the phone is answered 24 hours a day at (619) 398-2500.

Questions People Ask