Do I Really Need a Lawyer for This?

By: Don Murray, Criminal Defense Lawyer with Shalley and Murray

It is a Bit More Complicated than What the Police Officer Told You

The (possibly) nice police officer who arrested you probably told you that this was nothing and even that you didn't really need a lawyer.  You could just relax, put this out of your mind for the next month, and then wander into Criminal Court, and it will "just be dismissed".  

Let's see.  You have been arrested.  You were given a piece of paper advising you to appear in Criminal Court.  You are charged with a crime.  You were told that if you don't show up a warrant will issue for your arrest and you will be brought to Court in chains.

So, right.  What could possibly go wrong?

The answer is that the little voice inside that has caused you to find and read this page is right.  You need information.  You need guidance.  That's what lawyers do.  We provide information and guidance.  So the issue isn't whether you need information and guidance, the issue is whether you are going to take steps to get information and guidance from someone you choose, at a time and place that isn't five minutes before you are called into the record or whether you are going to get your advice from one of the lawyers paid by the Government to represent people in poverty chosen for you by chance.

Collateral Issues

There are any number of "collateral" issues that come up when you are charged with any crime, not just petit larceny.  Collateral issues are potential problems that arise merely from the accusation of crime in some cases in areas of your life beyond the criminal justice system.  For example, immigration issues, employment issues, student loan eligibility, military service eligibility, housing issues, professional licensing issues, gun license eligibility, and more are areas of often equal or even greater concern than the criminal case itself.  It is important that you take the time to consider these sorts of issues before rashly going into court and "hoping for the best."

These sorts of subtle issues are the sorts of things that the nice police officer who arrests you is not likely to be considering when he gives you his legal opinion about how you will or should settle your case.  Take legal advice from the nice police officer at your own risk, because the nice police police officer is not going to be accountable to you if you take his advice and things don't work out so well down the road.  Dealing with potential headaches in the world of collateral issues up front, while potentially more complicated and time consuming, is a thousand times simpler and inexpensive than trying to undo something that was done rashly on the spur of the moment in Court because it sounded pretty good at the time.


The Lawyer You Choose

Would you rather take legal advice in a Criminal matter from the lawyer you choose to work with based on your assessment of that lawyer's experience and qualifications or from a lawyer who is assigned to you at random who you know absolutely nothing about? Maybe the lawyer is wonderful and someone who you would get along with and work well with.  Or maybe not.  This is your case.  This is your life.  Do you really want to leave this up to chance? 


Practical Considerations that Improve Your Experience

If it were up to you, would you like to discuss your case with your lawyer in the privacy of an office or over the telephone for as long as you like, under no pressure, well in advance of the court date, or would you like to meet with your randomly chosen lawyer for the first time in a public hallway a few minutes before your case is called into the record?

If it were up to you, would like to show up in Court with your lawyer, who is only there for you, a familiar face and guide through the process, or would you like to show up to Court uncertain about where to go, and what to do, with nobody to help you until just a few minutes before your case is called into the record?

If it were up to you, would like to have to take the entire day off from work or school because you can't predict how long you will be in Court, or would you prefer to be reasonably confident that since you will arrive ready for arraignment with your lawyer, your case will be called shortly after the judge takes the bench and you will be able to be done for the day in time to get back to work or school for the rest of the day?

These things don't necessarily make your ultimate outcome different in a mathematical sense, but they sure do make your experience more pleasant.


I Don't Mind Waiting Around or Anything Else, So Why Couldn't I Just Use the Free Lawyers at Court?

The Government isn't in the business of providing universal legal care to all who are arrested.  Think of the controversy that was caused by the suggestion in recent times that the Government ought to be in the business of providing universal health coverage for every citizen.  In some parts of this country this concept was met with outrage, anger, and defiance, as if the very foundations of what it meant to be American were at stake.  And this was to provide health care to make people who are sick better and prevent people from getting sick.

If the idea that the Government should provide universal health coverage is such a disastrous blow to freedom and democracy, how horrible would the expectation be that the Government will provide universal free legal services for all who are accused of crimes regardless of their income or circumstances? 

The notion that the assigned defenders are "there anyway" and why not ask them to represent you for something as "minor" as this is like suggesting that since they are there anyway, they might as well be given brooms to sweep out the courtroom at the end of the day.  Why should the Government bother hiring a custodian when there are able bodied people there anyway?

In reality, assigned defender organizations are not there to represent anyone and everyone who chooses not to retain counsel.  Organizations like the Legal Aid Society draw their funding from a variety of sources, mostly Governmental, because it was held in the United States Supreme Court case Gideon v. Wainwright, that poverty stricken people must be provided free legal services when they are charged with crimes.  The Sixth Amendment of our great Constitution requires the Government to pay for legal services of indigent people - but not all people.  The Legal Aid Society and similar assigned defender organizations are deeply committed to the notion that poverty stricken people deserve representation.

In these days of Government cutbacks and budget woes, you can imagine that the assigned defender organizations and our Courts are more vigilant than ever at making sure that the people who receive free legal services are in fact indigent.

If you present yourself to court and you do not have a lawyer, even on a petit larceny charge, you will be screened for eligibility by a Legal Aid Society lawyer.  Especially these days, The Legal Aid Society takes very seriously the issue of eligibility for their services.  Your eligibility for their services will be established according to guidelines based on Federal poverty guidelines.  If you are found ineligible because you are not in poverty (for example, if you have a job or own real property) the Legal Aid Society will NOT represent you.  Your case may be heard that day at some point as a mere matter of convenience for the Court, but the lawyer will advise the judge of your ineligibility and the judge will order you to hire your own lawyer.  

Be aware also that Judges are extremely vigilant, especially in these days of severe budget cuts in the Court system, about eligibility for free lawyers.  When Court staff is being cut every which way and the judges themselves are asked to do more with less every day, Judges are more and more insistent that taxpayers' money not be spent providing free legal services for people who are not in poverty.  That means that in some cases, Judges have overruled an initial determination of eligibility for free counsel and insisted that people retain their own counsel.  

Judges do not take terribly kindly to being ignored in this respect either.  I have seen situations in which people, ordered to retain lawyers return to court unrepresented perhaps expecting that the Court will forget about it or give up.  Courts will often require people who ignore their rulings to return to Court every single day until they return with a private lawyer.

At a certain point, where a person who is deemed ineligible for free legal services refuses to retain counsel, judges have the power to hold a hearing and decide that the person is intentionally waiving their right to counsel and insist that the case proceed in the absence of counsel.

Both The Legal Aid Society and The Courts take eligibility for free legal services extremely seriously and watch with a vigilant eye to make sure that the people who receive free legal counsel are truly the impoverished.

The actual guidelines are based on yearly income and assets compared with number of people in the household.  As a general rule, if you own real property, you should not consider yourself indigent and therefore not consider yourself eligible for a free lawyer as per the Sixth Amendment to the United States Constitution.  If you are employed full time, it is conceivable, depending on the number of dependents and your living situation that you could still be considered indigent, but be prepared to present to the Court documentary evidence of your situation in order to justify the City of New York providing free legal services.

Therefore, if you are employed, or if you own real property your assumption should be that you do not qualify for free legal services.  You would do well for yourself and perhaps save yourself a return trip to court by arranging for counsel prior to court (especially if you received a desk appearance ticket).  

If you think you might qualify for free legal services, you should be prepared to provide evidence (such as prior years' tax returns or evidence of public assistance) in order for the Legal Aid Society to agree to represent you, even in a petit larceny case.



Hi.  This is Don Murray, partner at Shalley and Murray.  If after reading the articles that interest you here, you would like to speak to me, please call the above number.  We can talk over the telephone, set up a free in person consultation, or even set up video conference over Skype, FaceTime, or our own internal video conference software.