Public defenders and court-appointed lawyers in Michigan

Both are licensed lawyers, and the right to effective assistance applies whether counsel is appointed or retained. The differences are how the lawyer is chosen and paid. Appointed counsel is arranged by the local government that funds the court and goes to people found indigent. A private lawyer is chosen and paid by the client. The right to pick a particular lawyer belongs to people who hire counsel, not to people who need counsel appointed.

Michigan has no single statewide trial-level public defender office (appellate defender services are separate under the Act, MCL 780.983(g)). Under the Michigan Indigent Defense Commission Act, the local unit of government that funds a trial court (a county or city, for example) is the indigent criminal defense system, and the commission sets minimum standards for those local systems (MCL 780.983(h); MCL 780.991(1) and (2)). Where the caseload is sufficiently high, the Act contemplates that a system may combine a defender office with the active participation of other members of the bar (MCL 780.991(1)(b)), and the MIDC compensation standard also recognizes assigned counsel and contract counsel. A person who is indigent receives one of those lawyers at public expense. That follows the Sixth Amendment rule of Gideon v Wainwright, 372 US 335, 344 (1963): any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided. A private defense lawyer is selected and paid by the client, and the fee arrangement is a contract subject to the professional conduct rules. The legal quality standard is the same for both. The MIDC's standards note that the right to effective assistance applies equally whether counsel was appointed or retained, and they set training, qualification, workload and compensation floors for appointed lawyers. The practical differences are mostly about choice. The right to counsel of choice does not extend to defendants who require counsel to be appointed for them (United States v Gonzalez-Lopez, 548 US 140, 151 (2006)), so an appointed lawyer is ordinarily assigned by the local system, not picked by the client. The Act states a principle that the same lawyer represents the defendant continuously and appears at every court appearance, with an exemption for ministerial, nonsubstantive hearings (MCL 780.991(2)(d)). Neither kind of lawyer can promise an outcome.

Authority: MCL 780.983(g) and (h); MCL 780.991(1)(b) and (2)(d); MIDC Standard 7 (Qualification and Review), introductory commentary; Standard 8 (Attorney Compensation), introductory text and part C; Gideon v Wainwright, 372 US 335, 344 (1963); United States v Gonzalez-Lopez, 548 US 140, 151 (2006). Reviewed Oct. 2026.

The statute asks whether you can obtain competent legal representation without substantial financial hardship to yourself or your dependents. Receiving public assistance, living in public housing, or earning under 140 percent of the federal poverty guideline creates a rebuttable presumption in the statute. The MIDC's indigency standard goes further and presumes indigency below 200 percent of the guideline in net income. Everyone else gets a closer look at expenses, charge seriousness and local lawyer rates. The defendant applies and gives financial information under oath.

A preliminary inquiry and determination of indigency must be made not later than the defendant's first appearance in court, and the determination can be reviewed at later stages (MCL 780.991(3)(a)). A defendant is indigent if unable, without substantial financial hardship to self or dependents, to obtain competent, qualified legal representation. Hardship is rebuttably presumed if the defendant receives personal public assistance (food assistance, TANF, Medicaid or disability insurance, for example), lives in public housing, or earns income below 140 percent of the federal poverty guideline, and also if the defendant is serving a sentence in a correctional institution or is in residential mental health or substance abuse treatment (MCL 780.991(3)(b)). A defendant above the presumptive thresholds is screened more rigorously, considering the seriousness of the charges, monthly expenses and local private counsel rates (MCL 780.991(3)(c)). The defendant is responsible for applying and establishing eligibility, and statements material to indigency must be made under oath or affirmation (MCL 780.991(3)(g)). The MIDC's Standard for Determining Indigency and Contribution, approved by LARA on Oct. 28, 2021, states a presumption for net income below 200 percent of the federal poverty guidelines and for defendants under 18, and explains in its commentary that research suggests a person below 200 percent is unlikely to retain counsel without substantial hardship. The standard also provides that household and spousal income are not presumed available, that a joint bank account is presumed half owned by the defendant, that exempt assets cannot be required to be liquidated, and that there is no cost for the screening. Where the funding unit has designated an appointing authority, the court refers the defendant to it for screening (MCR 6.005(B)).

Authority: MCL 780.991(3)(a), (b), (c) and (g); MIDC Standard for Determining Indigency and Contribution (approved Oct. 28, 2021), Indigency Determination (b) and Comment 2; MIDC Standard for Determining Indigency and Contribution, Household and Marital Income; Joint Bank Accounts; Liquidation of Assets; Cost of Indigency Assessment; MCR 6.005(B). Reviewed Oct. 2026.

A denial by an appointing authority can be reviewed by the judge assigned to the case, by oral motion on the record or by filing a request for review. The court reviews the appointing authority's decision de novo and may consider information the authority never saw. Having posted bond does not make a defendant ineligible. A defendant whose finances decline can also ask to be rescreened.

When a funding unit has designated an appointing authority, the court refers the defendant for screening, and the defendant can seek judicial review of the determination. The court rule says the court reviews an appointing authority's determination of indigency de novo and may consider information not presented to the appointing authority. It also says the ability to post bond for pretrial release does not make the defendant ineligible for appointment (MCR 6.005(B)). The factors the court uses include present employment, earning capacity and living expenses, outstanding debts, receipt of public assistance, the availability and convertibility of property without undue hardship, the MIDC's rebuttable presumptions, and any other circumstance that would impair the ability to pay a lawyer's fee (MCR 6.005(B)). Under the MIDC standard, the defendant can request review by an oral motion while on the record or by filing a Request for Review of Appointing Authority Determination form or other document, and the appointing authority is to give the defendant a copy of that form with any denial. The right of review also applies to a second or later request for counsel. The prosecuting authority lacks standing to seek review of the appointing authority's decision to appoint or deny counsel. The standard also states that an authority cannot reject a request because of a recurring expense it considers excessive unless the expense is unnecessary, can be easily eliminated, and eliminating it would leave enough income to retain counsel, and that an authority cannot demand liquidation of an exempt asset. If finances decline during the case, a defendant can ask to be rescreened. The statute separately requires the MIDC's standards to include availability of prompt judicial review when the system makes an indigency or partial-indigency determination (MCL 780.991(3)(e)).

Authority: MCR 6.005(B); MIDC Standard for Determining Indigency and Contribution, Judicial Review; Debts as Disqualifiers; Liquidation of Assets; Change in Financial Condition; MCL 780.991(3)(e). Reviewed Oct. 2026.

Counsel at public expense is tied to the possibility of incarceration. The Constitution bars imprisonment of an uncounseled defendant, including a suspended sentence that can later become jail. The Michigan court rule goes a little further: an indigent defendant has a right to appointed counsel whenever the offense requires a minimum jail term or the court determines it might sentence to incarceration, even if suspended.

The United States Supreme Court held in Argersinger v Hamlin, 407 US 25, 37 (1972), that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel at his trial. Alabama v Shelton, 535 US 654, 658 (2002), extended that to a suspended sentence that may end up in the actual deprivation of liberty. The Michigan rule for district court cases is MCR 6.610(D)(2): an indigent defendant has a right to an appointed attorney whenever the offense charged requires on conviction a minimum term in jail or the court determines it might sentence to a term of incarceration, even if suspended. If an indigent defendant is without an attorney and has not waived the right, the court may not sentence the defendant to jail or to a suspended jail sentence. The right is not waived unless the defendant has been informed of it and has waived it in writing made part of the file or orally on the record (MCR 6.610(D)(3)). The MIDC Act defines indigent criminal defense services as local legal defense services for a defendant being prosecuted or sentenced for a crime for which an individual may be imprisoned upon conviction (MCL 780.983(f)), and the MIDC's indigency standard says in its commentary that a screening plan should not require screening of defendants for whom there is no possibility of incarceration upon conviction. Read together, these provisions mean a court that wants to keep jail available has to address counsel. The court rule ties the right to appointed counsel in district court cases to a required minimum jail term or the court's determination that it might impose incarceration.

Authority: Argersinger v Hamlin, 407 US 25, 37 (1972); Alabama v Shelton, 535 US 654, 658 (2002); MCR 6.610(D)(2) and (3); MCL 780.983(f). Reviewed Oct. 2026.

Generally no to choosing and only for good cause to replacing. An indigent defendant is guaranteed counsel but is not entitled to the particular lawyer requested, and substitute counsel is warranted only on a showing of good cause where substitution will not unreasonably disrupt the judicial process. A defendant who hires private counsel is the one who chooses.

The Sixth Amendment right to counsel of choice does not extend to defendants who require counsel to be appointed for them (United States v Gonzalez-Lopez, 548 US 140, 151 (2006)). The Michigan Court of Appeals has said the same in the substitution setting: an indigent defendant is guaranteed the right to counsel but is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced, and appointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process (People v Traylor, 245 Mich App 460, 462 (2001)). Traylor adds, quoting People v Meyers (On Remand), 124 Mich App 148, 166-167 (1983), that a defendant may not purposely break down the attorney-client relationship by refusing to cooperate with assigned counsel and then argue that there is good cause for substitution (245 Mich App at 462-463). Good cause exists where a legitimate difference of opinion develops between the defendant and appointed counsel about a fundamental trial tactic, while a defendant's mere lack of confidence in counsel is not good cause (id. at 462-463). Whether good cause exists is a matter for the trial judge on the facts. Several structural features also bear on the question. The MIDC Act states a principle that the same lawyer continuously represents the defendant and personally appears at every court appearance (MCL 780.991(2)(d)), and an unresolved problem can be raised with the judge. The MIDC's independence standard provides that the selection of lawyers and their payment are not to be made by the judiciary, and its staff comment says a judge's recommendation of a specific attorney is received only in rare cases and cannot be the sole basis for an appointment. Where the concern is communication, the initial-interview standard requires counsel to conduct an initial interview as soon as practicable after appointment, within three business days if the client is in local custody.

Authority: United States v Gonzalez-Lopez, 548 US 140, 151 (2006); People v Traylor, 245 Mich App 460, 462-463 (2001); MCL 780.991(2)(d); MIDC Standard 5 (Independence from the Judiciary) and Staff Comment; Standard 2 (Initial Interview). Reviewed Oct. 2026.

Yes. The right to choose one's own lawyer belongs to a defendant who does not require appointed counsel, and nothing in the MIDC standard prevents hiring private counsel. The standard does say that a court or appointing authority should not swap lawyers solely because a defendant newly has the ability to retain counsel, and it puts a duty on the defendant to report significant improvements in finances.

Michigan law gives the accused the right to be heard by counsel on the trial of every criminal accusation (MCL 763.1), and the Sixth Amendment right to counsel includes the right of a defendant who does not require appointed counsel to choose who will represent him (United States v Gonzalez-Lopez, 548 US 140, 144 (2006)). The Michigan Court of Appeals has said that although substitution of appointed counsel is within the trial court's discretion, a defendant must be afforded a reasonable time to select his own retained counsel (People v Arquette, 202 Mich App 227, 231 (1993)). Several features of the MIDC standard bear on a change in finances. If a defendant's financial condition significantly improves during the case, the standard calls for a redetermination of indigent or partially indigent status and of contribution, and it says that if the defendant has sufficient income or assets the defendant should make contribution payments equal to 100 percent of the cost of representation. It adds that there should never be a change of attorney by the court or appointing authority based solely on the defendant's new ability to retain counsel. The duty to report a significant improvement belongs exclusively to the defendant, not the attorney, and the prosecuting authority lacks standing to challenge the continuation of appointed counsel because of improved finances. The standard also says defendants with retained counsel may request screening to qualify for investigator and consultant funding. One court-rule caution applies to defendants who had previously waived counsel: the court must allow a reasonable opportunity to retain a lawyer, but may refuse to adjourn a proceeding for that purpose if an adjournment would significantly prejudice the prosecution and the defendant has not been reasonably diligent in seeking counsel (MCR 6.005(E)). A change of lawyers late in a case can therefore affect scheduling, which is a reason to raise it early.

Authority: MCL 763.1; MIDC Standard for Determining Indigency and Contribution, Change in Financial Condition; Definitions and Indigency Determination (g); MCR 6.005(E); United States v Gonzalez-Lopez, 548 US 140, 144 (2006); People v Arquette, 202 Mich App 227, 231 (1993). Reviewed Oct. 2026.

The Michigan Indigent Defense Commission has approved minimum standards for training, a prompt initial client interview, investigation funding, counsel at first appearance and other critical stages, independence from the judiciary, workloads, lawyer qualification and review, and compensation. For a client in local custody the initial interview is to occur within three business days of appointment.

The MIDC Act directs the commission to establish minimum standards, rules and procedures for local indigent defense systems (MCL 780.991(1) and (2)). The standards published in the commission's October 2023 packet cover the following. Standard 1 requires continuing legal education relevant to indigent defense clients. Standard 2 requires an initial interview as soon as practicable after appointment, within three business days if the client is in local custody, and a prompt introductory communication if the client is not in custody, in a private and confidential setting where reasonably possible. Standard 3 requires an independent investigation and says reasonable requests for investigators and for technical or forensic help must be funded. Standard 4 requires counsel as soon as the defendant is determined eligible, including at arraignment, and at pretrial proceedings, plea negotiations and other critical stages whether in court or out of court. Standard 5 requires independence from the judiciary, so that judges do not select or pay appointed lawyers. Standard 6 addresses workloads, and the packet states it was approved on Oct. 24, 2023 together with Standard 7, which sets qualifications by case type and requires local review of lawyers. Standard 8 addresses compensation, with minimum hourly rates that are adjusted annually and reimbursement of case-related expenses. Funding units were required to submit plans for compliance with these standards by April 22, 2024. The standards set floors, and how a particular county or city meets them is set out in its compliance plan. The workload figures in the packet are not repeated here because they may have been updated since the packet was issued.

Authority: MCL 780.991(1) and (2); MIDC Standards 1 through 8, packet dated October 2023. Reviewed Oct. 2026.

Yes, where reasonably necessary. MIDC Standard 3 says counsel is to conduct an independent investigation, request funds for an investigator when appropriate, and request help from technical or forensic consultants where reasonably necessary to prepare the defense and rebut the prosecution, and that reasonable requests must be funded. A denial can be taken to the judge assigned to the case.

MIDC Standard 3 sets the rule for appointed counsel. Counsel is to conduct an independent investigation of the charges and offense as promptly as practicable. When appropriate, counsel is to request funds to retain an investigator, and reasonable requests must be funded. Counsel is also to request technical or forensic help where reasonably necessary to prepare the defense and rebut the prosecution's case, and reasonable requests must be funded as required by law. Counsel has a continuing duty to evaluate the case for investigation or outside help, and decisions to limit investigation must take into account the client's wishes and the client's version of the facts. The standard's commentary adds that a client's wish to plead guilty does not by itself remove the need to investigate. In the indigency standard, an appointing authority reviews applications for counsel, but only a licensed attorney may review requests for investigators and technical or forensic help. If the authority denies such a request, the defendant can ask the judge assigned to the case to review the decision. The same standard says defendants who have retained counsel or who represent themselves can ask to be screened for indigency in order to qualify for investigator and consultant funding. The MIDC Act also lets a local system ask the commission to serve as a clearinghouse for investigators and technical or forensic providers, which the commission may operate to determine need and availability in individual cases (MCL 780.991(5)). When a request for technical or forensic assistance goes to the court as a due process matter, the Michigan Supreme Court requires the defendant to show a reasonable probability both that the assistance would be of help to the defense and that denying it would result in a fundamentally unfair trial (People v Kennedy, 502 Mich 206, 227 (2018)). What counts as a reasonable request is decided case by case, and the MIDC standard does not set dollar limits.

Authority: MIDC Standard 3 (Investigation); MIDC Standard for Determining Indigency and Contribution, Appointing Authority; Indigency Determination (g); Judicial Review (a); MCL 780.991(5); People v Kennedy, 502 Mich 206, 227 (2018). Reviewed Oct. 2026.

Contribution is an ongoing payment during the appointment by a partially indigent defendant, and reimbursement is a repayment obligation after it ends. Under the MIDC standard an indigent defendant cannot be required to contribute, contribution is capped at 25 percent of what is left after current monthly expenses are subtracted from net income, and it is refunded if all charges are dismissed or the defendant is acquitted. Court costs can include the expense of legal assistance under MCL 769.1k.

The MIDC standard draws the distinction using People v Jose, 318 Mich App 290, 298 (2016): contribution is an ongoing payment obligation during the term of the appointment, and reimbursement is an obligation arising after the term has ended. The standard does not require funding units to seek either. Contribution: an indigent defendant cannot be required to contribute, and neither can a partially indigent defendant if it would cause substantial financial hardship. The amount is found by subtracting current monthly expenses from monthly net income; if the result is negative nothing can be required, and if positive the authority directs no more than 25 percent of it each month. Social Security and other means-tested benefits in the recipient's hands are always exempt. Contribution ends at sentencing, is never more than the actual cost of the defense, and must be refunded if the defendant paid more than the cost, all charges are dismissed, or the defendant is found not guilty of all charges. Reimbursement: the standard says units should seek it only from defendants with a meaningful ability to pay, the amount cannot exceed actual cost, and a payment plan should reflect what the defendant can reasonably afford over up to two years for a misdemeanor or five years for a felony. The statutory side is that a court sentencing a defendant may order, as part of costs, the expenses of providing legal assistance to the defendant (MCL 769.1k(1)(b)(iv)), and the Michigan Supreme Court has held that the court must determine the cost of providing legal assistance to that defendant rather than assess a generic amount (People v Lewis, 503 Mich 162 (2018)). A defendant must not be jailed for nonpayment of costs unless the court determines the defendant has the resources to pay and has not made a good-faith effort (MCL 769.1k(10)), and the court rule requires findings on the record before incarceration or probation revocation for nonpayment (MCR 6.425(D)(3)). In People v Jackson, 483 Mich 271, 292-293 (2009), the Michigan Supreme Court said trial courts should not entertain ability-to-pay challenges to the imposition of fees until enforcement has begun, and that once it has begun and the defendant timely objects, the court should evaluate ability to pay.

Authority: MIDC Standard for Determining Indigency and Contribution, Contribution; Determination of Reimbursement; Definitions; MCL 769.1k(1)(b)(iv) and (10); MCR 6.425(D)(3); People v Jackson, 483 Mich 271, 292-293 (2009); People v Lewis, 503 Mich 162 (2018). Reviewed Oct. 2026.

A fee must not be clearly excessive, and, unless the lawyer has regularly represented the client, the lawyer must communicate the basis or rate of the fee, preferably in writing, before or within a reasonable time after starting the work. A contingent fee, one that depends on the outcome, is prohibited for representing a defendant in a criminal case. Advance payments are allowed, but any unearned portion has to be returned, and advance fees are held in a client trust account until earned.

Michigan Rule of Professional Conduct 1.5(a) forbids a lawyer from entering into an agreement for, charging or collecting an illegal or clearly excessive fee, and lists factors for reasonableness, including the time and labor required, the difficulty of the questions, the fee customarily charged in the locality for similar services, the amount involved and results obtained, time limitations, the nature and length of the relationship, the experience, reputation and ability of the lawyer, and whether the fee is fixed or contingent. When the lawyer has not regularly represented the client, the basis or rate of the fee must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation (MRPC 1.5(b)). The comment says it is sufficient to state that the rate is hourly, a fixed amount or an estimated amount, and that a revised estimate should be provided if developments make an earlier estimate substantially inaccurate. A lawyer may not enter into an arrangement for, charge or collect a contingent fee for representing a defendant in a criminal case (MRPC 1.5(d)(2)); the writing requirement for contingent fees in rule 1.5(c) therefore does not open that door in criminal defense. The comment on terms of payment says a lawyer may require advance payment of a fee but is obliged to return any unearned portion. Under MRPC 1.15(g), legal fees and expenses paid in advance must be deposited in a client trust account and may be withdrawn only as fees are earned or expenses incurred. Fee agreements commonly use a flat fee for a defined stage, an hourly rate against a retainer, or a combination, and what the fee covers (for example, whether trial or appeal is included) is a term to put in the writing.

Authority: MRPC 1.5(a), (b) and (d)(2) and comment; MRPC 1.15(g). Reviewed Oct. 2026.