States responses to these mandates to supply counsel have varied, with most states addressing the right to counsel in statute, court rule and, in at least one instance, case law. Every state now guarantees a right to counsel and some address specifically when that right “attaches” or “arises”; more interesting is the answer to the question, When do attorneys actually appear in court or meet their clients? Not every state—including Hawaii, Minnesota and Oklahoma—has an answer to this question in law, and if states do have provisions in law, the question is answered in myriad ways.
Some states take a very specific approach. Maine, for example, requires the court to assign counsel not later than initial appearance. The state also includes a provision for designating temporary counsel at initial appearance, demonstrating the state’s intention for counsel to be physically present at initial appearance even if appointed counsel is not yet available.
Other more specific examples include Nevada, where the defendant is entitled to counsel at every stage of proceedings from initial appearance, and Pennsylvania (Crim. Proc. R. 122), which gives an “ideal” timetable but ultimately requires counsel to be appointed “at least in time to represent the defendant at the preliminary hearing.”
Many states require counsel to be appointed at the initial appearance, but do not clearly delineate when counsel must appear. Nebraska, for example, requires the court to appoint a public defender at first appearance, if the defendant is found indigent, for “all proceedings before the court”—a phrase that is not defined.
Indiana has a similar approach requiring appointment of counsel during initial appearance, if requested, but makes no mention of counsel being required to appear at that hearing. Other states who employ similar language include Arizona, Illinois and Iowa.
Another common approach is to require the court to advise the defendant of his or her right to counsel at the initial appearance, but not dictate in statute or rule when counsel must be appointed or present in the courtroom. States using this method include California and Alabama.
California’s law requires the court, at arraignment, to inform the defendant of the right to the aid of counsel “at every stage of the proceedings.” Alabama procedure requires that the judge must, at initial appearance, inform the defendant of the right to be represented by counsel and advise the defendant that he or she will be “afforded time and opportunity to retain counsel.”
Some states have developed more unique approaches concerning right to counsel issues. Texas, for example, uses an approach based on county population. Statute states that counsel be appointed not later than the third working day after the date on which the court receives the defendant’s request for counsel if the defendant is arrested in a county with a population of less than 250,000, or not later than the end of the first working day after the date on which the court receives the defendant’s request for counsel if the defendant is arrested in a county with a population of 250,000 or more.
Another less common approach is one taken by Missouri, which requires notice to be provided in the form of signage at all locations where defendants are held in custody describing a defendant’s right to counsel and including a manner in which to contact the defender’s office to request such counsel.
One state has uniquely made the process of accessing counsel clear through case law interpreting state statutes. Maryland requires in statute that representation be provided at all stages of a proceeding, including bail hearing and arraignment. This language is similar to that adopted by other states; however, the Maryland Supreme Court is the first court to have weighed in on the matter. In a 2001 case, McCarter v. State, the court held that “all stages” of the proceeding included the initial appearance.
State statute, court rules and case law make up the legal framework that sets a baseline threshold for when counsel is appointed and eventually appears. However, local rule and practice in addition to the availability of defense attorneys also impact the timeline for appointment and appearance. In some local jurisdictions, counsel may appear at bail hearings or first appearance even when not required by statewide legal frameworks. Other jurisdictions, especially those where attorneys are scarce or caseloads are already high, may not provide counsel before mandated to do so by state law.
States address access to counsel in unique and varied ways, from centralized statewide systems to more localized models. Because of this landscape, legislation addressing this topic varies as well.
Three states in the past two years have enacted legislation related to the right to counsel. Idaho’s State Public Defender Act (2023) created an office of the state public defender. Oregon enacted a complete system overhaul of its public defender system in 2023. The new law abolished flat fee contracting, created a hybrid model for in-house counsel and private counsel and appropriated $96 million to the Oregon Public Defense Commission to meet its goals of transparency and oversight. Illinois (HB 1095; 2021-22) required the Administrative Office of Illinois Courts to establish a grant program for certain counties for the purpose of training and hiring attorneys on contract to assist the county public defender in pretrial detention hearings.