Retained vs. Court-Appointed Lawyer in Michigan: How Each Route Works

You have a court date and no lawyer yet

You were arrested or charged, the arraignment is coming, and the paper says you have the right to an attorney. The next question is how you get one. Michigan gives two routes: ask the court to appoint a lawyer, or hire one yourself. This page explains how each route works, step by step, and what is the same no matter which one you take.

The right itself comes from the Sixth Amendment and article 1, section 20 of the Michigan Constitution, which says the accused has the right to the assistance of counsel. In a felony case, MCR 6.005(A) requires the court at arraignment to tell you that you are entitled to a lawyer at public expense if you want one and cannot afford to hire one. In a misdemeanor case, MCR 6.610(D)(2) gives an indigent defendant the right to an appointed attorney whenever the offense requires a minimum jail term or the court decides it might sentence you to incarceration, even a suspended term.

This page is neutral general information about Michigan law. It does not compare lawyers, and it does not tell you which route is right for you. Talk to a lawyer, appointed or retained, about your own case.

How a court-appointed lawyer works

Appointed counsel in Michigan runs through the Michigan Indigent Defense Commission Act, MCL 780.981 and following, and the minimum standards the commission has approved. The commission does not appoint lawyers itself; the local funding unit's indigent defense system does, through an appointing authority that is kept separate from the judges (MIDC Standard 5).

Eligibility is about money, not about the charge or the lawyer. MCL 780.991(3)(b) calls a defendant indigent if he or she cannot obtain competent legal representation without substantial financial hardship. Hardship is presumed if you receive public assistance such as food assistance, Medicaid or disability benefits, live in public housing, or earn less than 140 percent of the federal poverty guideline. The commission's indigency standard uses a 200 percent line and adds people under 18, people serving a sentence and people in residential treatment. Above those lines, MCL 780.991(3)(c) requires a closer look at your actual circumstances, including the seriousness of the charge, your monthly expenses and local private counsel rates.

To ask, say at or before arraignment that you want a lawyer and cannot afford one. The court refers you to the appointing authority for screening (MCR 6.005(B)), you fill out a financial form, and your answers are made under oath (MCL 780.991(3)(g)). The decision is due no later than your first appearance (MCL 780.991(3)(a)), the judge can review it fresh, and posting bond does not make you ineligible (MCR 6.005(B)). If you can pay part of the cost, the court may order a contribution (MCR 6.005(C)), and after a plea or conviction the costs a court may impose include the expense of providing your lawyer (MCL 769.1k(1)(b)(iv)).

The commission's minimum standards tell appointed lawyers what they must do:

• Standard 2: meet a client who is in custody within three business days of appointment, in a private and confidential setting as far as reasonably possible.
• Standard 3: investigate the charges independently and promptly, and request investigators and other needed professionals, whose reasonable cost must be funded.
• Standard 4: be present at arraignment, at pretrial hearings, during plea negotiations and at other critical stages.
• Standard 1: complete at least twelve hours of continuing legal education each year.
• The Act itself lists, as a principle the standards must follow, that the same lawyer continuously represents you and personally appears at every court appearance, apart from routine matters (MCL 780.991(2)(d)).

How a retained lawyer works

Retaining a lawyer means you pick the lawyer and agree on a fee. The representation begins when you both agree, which can be before any charge is filed, before arraignment, or at any later point. You can meet more than one lawyer first; MRPC 1.18 protects what you tell a lawyer you consult even if you never hire that lawyer.

The fee is governed by MRPC 1.5. A lawyer may not charge an illegal or clearly excessive fee (MRPC 1.5(a)), must communicate the basis or rate of the fee, preferably in writing, before or within a reasonable time after starting (MRPC 1.5(b)), and may not charge a fee that depends on the outcome of a criminal case (MRPC 1.5(d)(2)). Fees may be flat or hourly; the rule does not fix amounts, and this page states none. If a relative pays, MRPC 1.8(f) requires your consent and says the payer does not get to direct the case.

You can end the relationship. A retained lawyer must withdraw when discharged (MRPC 1.16(a)(3)), and on ending the representation must return papers you are entitled to and refund any advance fee that has not been earned (MRPC 1.16(d)). Court permission is usually needed once a case is pending, so a change of lawyers is done by substitution rather than by simply walking away.

What is identical either way

The Rules of Professional Conduct do not have a separate chapter for appointed lawyers. Whoever represents you must keep you reasonably informed, respond to reasonable requests for information, and tell you promptly about every plea offer (MRPC 1.4(a)). The lawyer must explain enough for you to make informed decisions (MRPC 1.4(b)).

The decisions that belong to you are the same too. In a criminal case the lawyer must follow your decision, after consultation, on what plea to enter, whether to waive a jury trial and whether you testify (MRPC 1.2(a)). Confidences and secrets are protected under MRPC 1.6 in both settings. And under Padilla v. Kentucky, 559 U.S. 356 (2010), any defense lawyer must tell a noncitizen client whether a plea carries a risk of deportation.

Under MCR 6.005(H)(1)(a), the trial lawyer's responsibilities, appointed or retained, include representing you in all trial court proceedings through initial sentencing.

Switching routes partway through

Appointed to retained: you can hire a lawyer at any point, and the new lawyer files an appearance and asks the court to substitute. Appointed to a different appointed lawyer: the commission's guidance is that a motion to substitute counsel goes to the court, and a new lawyer can be appointed if there is a good reason.

Retained to appointed: if your finances change, for example after losing a job, you can ask to be screened. MCL 780.991(3)(a) requires the indigency decision by your first appearance but allows it to be reviewed at later stages, and MCR 6.005(B) gives the judge fresh review of the appointing authority's decision.

The pillar guides cover these mechanics for specific charges: court-appointed or retained counsel in domestic violence cases and getting a court-appointed lawyer for an OWI charge.

What to do next

Do not wait for arraignment to think about this. If money is tight, gather proof of income, benefits, rent, debts and dependents so the screening form can be completed at your first appearance. If you plan to hire, meet the lawyer before the court date, bring your papers, and ask for the fee basis in writing; the guides on what to bring to a first consultation and questions to ask a criminal defense lawyer help with that meeting.

The office of Attorney Shawn Haff practices criminal defense only, in Michigan state courts. The site's attorney profile lists his background and the courts where he appears, flat fees and payment plans are available, and the office offers a free consultation at 616-438-6719, answered 24 hours a day. You can also reach the office through the contact page.