Some people who are compelled by the government (rather than a private person or entity) to appear in court are entitled to have attorneys appointed to represent them at government expense, in whole or in part. Examples of situations where people are compelled by the government to appear in court are:
- criminal, probation violation and contempt proceedings (where there is a possibility that the person will be sentenced to serve time in jail);
- civil commitment proceedings (where the person may be involuntarily committed for mental health treatment);
- dependency (abuse & neglect) and termination of parental rights juvenile court proceedings (for some parents and some children who are the subject of these proceedings); and
- juvenile delinquency proceedings in instances where the juvenile is alleged to have committed an act that would be a crime if the juvenile were an adult.
If a person is involved in any of these types of court cases and if the person is determined by the court to be “indigent,' that person will be provided with legal representation by an attorney who is appointed by the court and paid from state or local government funds. If the person’s case is in a municipal or justice (county) court, the city or county is responsible for appointing and paying the attorney. If the person’s case is in a state district or circuit court, the state is responsible for appointing and paying the attorney.
In addition, persons who are incarcerated and who file petitions for a writ of habeas corpus and persons who file petitions for post-conviction relief from a criminal conviction are entitled to appointed counsel if the person is indigent. An individual who wishes to file an appeal from any case that originally qualified for indigent defense legal representation, may be eligible to have the State Public Defender’s office or an indigent defense attorney represent them on appeal.
A person is “indigent” for purposes of having an attorney appointed to represent them if a judge determines that hiring an attorney to represent the person would cause a “substantial financial hardship” for the individual in providing “basic economic necessities” for the person and the person’s dependents. An individual must apply for court-appointed counsel by completing a detailed financial statement and agreeing to provide documentation concerning income, assets and debts for the person and the person’s spouse, if any. This information generally is provided to a court employee who reviews the financial information and makes a recommendation to the judge whether or not the person is eligible for government-paid counsel.
At least in state district or circuit court cases, a person can be determined to be “not eligible”, “partially eligible” or “fully eligible” for court-appointed counsel. If a person is determined to be “partially eligible”, that person will be required to pay some amount toward the cost of having court-appointed counsel. In addition, any person who applies for court-appointed counsel may be charged a modest “application fee,” if their financial situation allows the payment of such a fee. In criminal cases where a person is convicted, a person who has been provided with court-appointed counsel can be sentenced by the judge to “repay” all or part of the costs of indigent defense representation, but only if the judge determines the person has the financial ability to make such a repayment. Beginning January 1, 1998, any person who receives court-appointed counsel can be ordered to repay all or part of the costs of indigent defense representation, but only if the judge determines the person has the financial ability to make such a repayment.
Indigent defense attorneys represent their clients just as privately hired attorneys do. These attorneys, although paid by the state or local governments, have an ethical responsibility to work for the best possible resolution of the case for the client. As with privately hired attorneys, all dealings between a court-appointed attorney and the client are confidential. Attorneys who are determined to be eligible to provide indigent defense representation, at least in state district and circuit court cases, are not only subject to the Oregon State Bar’s ethical requirements that govern all lawyers, but must also meet qualification standards that have been established for indigent defense representation. These attorneys represent their clients—not the government.
Indigent defense attorneys are entitled to have non-attorney services, such as investigator, interpreter and expert witness services, paid by the government if these services are determined to be “reasonable and necessary” for the attorney’s representation.
Persons who are determined to be eligible for court-appointed counsel do not have the right to choose who their attorney will be. However, they do have the right to have competent legal representation.
Questions concerning indigent defense representation in state district and circuit courts may be submitted, preferably in writing, to the Indigent Defense Services Division, 1163 State Street, Salem, OR 97310.