Court-appointed or privately hired lawyer: what is the difference?

When an indictment is sent, the court sends a defendant without a lawyer written information about court-appointed lawyers (Criminal Procedure Rules (형사소송규칙) Article 17). Take out the notice in the envelope first and check the following in order.

• See whether the notice says it is a "case that cannot proceed without a lawyer." If so, the court will appoint a lawyer unless you hire one yourself.
• If it is not such a case, consider whether you cannot afford to hire a lawyer. In that case, a lawyer is appointed only if the defendant requests one (Criminal Procedure Act (형사소송법) Article 33(2)).
• If you plan to request one, prepare documents showing your financial situation, such as a certificate of benefit receipt, proof of health insurance premium payments or a certificate of income (Criminal Procedure Rules Article 17-2).
• Check the date of the first hearing and work out whether there will be time for a lawyer to review the record before then.

If the defendant has no lawyer, the court appoints a court-appointed lawyer (국선변호인) on its own initiative when the defendant is detained, is a minor or aged 70 or over, has both hearing and speech impairments, is suspected of having a mental disability, or is charged with an offense punishable by imprisonment with or without labor for a minimum of 3 years or more (Criminal Procedure Act Article 33(1)).

Even in other cases, the court can appoint one if it considers it necessary in light of the defendant's age, intelligence and education, as long as the defendant does not object (same article, (3)). Also note that at the investigation stage, apart from the pre-detention hearing and reviews of the legality of arrest or detention, no court-appointed lawyer is assigned.

A court-appointed lawyer, just like a privately hired lawyer (사선변호인), can inspect and copy the record, give views on evidence, examine witnesses and submit a closing brief. There is no difference in what they can do in court.

The difference lies in when they start and who chooses them. A court-appointed lawyer is assigned by the court after indictment, and the defendant cannot choose who it is. A privately hired lawyer can be retained before police questioning, so they can go into the questioning with you and submit a written opinion before the case is referred to prosecutors. Which suits you depends on whether you are disputing the case, how large the record is, and whether your job or professional qualifications are at stake.

If you are detained, how often the lawyer can visit is also worth considering. In cases with a large record and several witnesses, you need time between hearings to meet the lawyer and go over your account. Whether court-appointed or private, meet at least once before the first hearing to go through the indictment and the list of evidence together. If the defendant is detained, a spouse, lineal relatives and siblings can also hire a lawyer independently (Criminal Procedure Act Article 30(2)).

A defendant cannot simply replace a court-appointed lawyer at will. However, you can ask the court for a change, and the court can cancel the appointment if it finds the request reasonable or considers that the lawyer is not performing their duties faithfully (Criminal Procedure Rules Article 18(2)).

Before asking for a change, first try contacting the lawyer at the number on the notice of appointment. Ask to meet before the hearing to go through the record together, and pass on a note of the points you want to dispute; this makes the conversation easier. If you hire a private lawyer, the court-appointed lawyer's appointment is cancelled (same article, (1)(i)).

Consultations are handled in person by a managing partner. We look at the indictment and the notice and tell you plainly whether your case qualifies for a court-appointed lawyer and what would change if you proceed with a private lawyer. If you decide to retain us, we start by reviewing the record, and we explain fees after the consultation. If your case is still at the investigation stage, we start by attending questioning with you and writing written opinions.