The TBA continues to share resources across communication platforms to help educate Tennessee lawyers about the state's system of indigent representation, which plays a crucial role in ensuring that individuals' right to counsel is provided for. This article highlights the factors that courts may consider in determining to appoint an attorney for a defendant.

November 27, 2024

The right to counsel is a cornerstone of the American justice system, including the principle that every individual, regardless of financial means, deserves a fair opportunity to present their case. The rights related to appointed counsel are derived from both the U.S. Constitution (primarily the Sixth Amendment) and statutory laws (such as the Criminal Justice Act and various state laws), which determine the extent and application of the safeguard. While the Sixth Amendment guarantees the right to counsel in criminal prosecutions, there is no similar federal guarantee in civil cases. This primer item addresses eligibility in criminal cases and an upcoming item will look at right to counsel in civil cases.
 
State procedures for appointing counsel may vary, but typically function through public defender offices or court-appointed private attorneys. There are also special situations where the right to appointed counsel may be guaranteed, including cases involving juveniles, some immigration cases and both trial and appeals for individuals facing the death penalty. Tennessee's state constitution and state law align with the Sixth Amendment and federal rulings that guarantee indigent defendants receive legal representation in criminal cases where they are facing incarceration.
 
Tennessee’s system for appointed counsel is governed by a combination of state statutes and local rules, including Tennessee Code Annotated (TCA) § 40-14-201 — 40-14-210, which outlines eligibility and procedures for appointing counsel for indigent defendants in criminal cases. The statute mandates that a defendant who cannot afford counsel will have an attorney appointed by the court. The appointment is subject to the court’s determination of indigency based on the defendant’s financial status.
 
In Tennessee, criminal defendants seeking a court-appointed attorney should inform the judge at arraignment that they cannot afford to hire a lawyer. The judge will then consider financial information and decide whether to appoint a lawyer. Defendants must generally demonstrate financial need, including via the "Uniform Affidavit of Indigency," before a court will appoint counsel. Some of the factors that a court shall consider when determining indigency of a defendant include the nature of the representation required, the usual charges for similar services, balanced against the income of the accused (regardless of source), property ownership/equity, the U.S. Department of Labor Lower Living Standard Income Level Guidelines and any other circumstances presented to the court which are relevant to the issue of indigency. While they may share information and resources, public defender offices do not represent individuals in civil cases. The Tennessee District Public Defenders has more information.

Get Involved

The TBA is looking for your input! Share your questions or topics that you would like to hear about in this series. There are several ways to connect with TBA to share your questions or experiences with indigent representation. Attorneys interested in learning more about TBA's grassroots advocacy efforts can sign up for TBA Grassroots Advocacy Updates, which will highlight related policy content across all of TBA's communication platforms. Attorneys with experience working with clients who are indigent or vulnerable, should complete this survey, which includes specific questions about court appointed representation. Looking for more information? Check out our Indigent Representation Resource page.