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Constitional Issues

The Right To Counsel

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The following is not legal advice but is for information only. Legal advice is when an attorney applies the law to a person's individual circumstances and advises them on their legal options or potential exposure to legal harm, which a web page clearly does not.


The right to counsel is a fundamental legal right that guarantees individuals the right to have legal representation by an attorney in criminal proceedings. It ensures that individuals accused of a crime have access to legal advice, assistance, and representation to protect their rights, present a defense, and navigate the complexities of the legal system.

The Sixth Amendment to the U.S. Constitution explicitly guarantees the right to counsel in criminal prosecutions - and that is important for those who cannot afford to pay for their own. In those circumstances, an attorney is appointed at public expense. The vast majority of defense attorneys in Maine are private but paid by the state when given a court appointment for an indigent client (too poor to pay for a lawyer). Whether someone is entitled to a paid attorney will depend on income and also what is a rather gray area - a risk of jail. In theory, a judge decides a sentence, but prosecutors have taken it upon themselves to decide who is ‘at risk of jail.’ That determines, with the complete acquiesce of a judge, whether a lawyer is then appointed. Those defendants not appointed one - even though every criminal offense carries a risk of jail - are left to fend for themselves and often that is to their complete detriment.

The right, when a person is too poor to have a lawyer and a jail sentence is a risk, encompasses several important aspects:

Legal Advice: Individuals have the right to consult with an attorney to receive legal advice regarding their case. This includes understanding their rights, potential consequences, and available defense strategies. An attorney is also an agent of a defendant and all important decisions are left to the client, who is actually the boss in the relationship and gives instructions on how a lawyer should act. Important calls like a guilty plea, whether there should be a trial, and so on, are for the client to decide with the advise of competent counsel. The lawyer is then expected to act, but only within their own ethical constraints, court rule, and statute.

Representation: The right to counsel entitles individuals to have an attorney represent them throughout the criminal proceedings. This includes assistance during interrogations, pre-trial hearings, negotiations with prosecutors, trial preparation, and courtroom representation.


Effective Assistance: The right to counsel includes the expectation that the legal representation provided will be competent and effective. Attorneys are expected to possess the necessary knowledge, skills, and resources to provide meaningful representation and protect the best interests of their clients.

Confidentiality: The right to counsel ensures that communications between the attorney and the client are privileged and confidential. This encourages open and honest discussions, allowing clients to disclose relevant information to their attorney without fear of it being used against them.


Access to Justice: The right to counsel promotes fairness and equality in the criminal justice system by providing individuals, regardless of their financial means, with access to legal representation. This has been applied to the states by the U.S. Supreme Court.

It is always a good idea to get a lawyer, even if money is tight. If a person can afford one, it is a bad idea to try to go through the process alone. Lawyers are like plumbers or electricians - they fix a problem. They often charge a similar rate as well, but the process is longer than fixing pipes or wires which makes it expensive. Getting a lawyer is nearly always extremely wise. Legal representation is especially important in criminal cases because the stakes are high, and individuals facing criminal charges are often at a significant disadvantage when dealing with the complexities of the legal system. Even without a risk of jail there are often consequences that come from a conviction and in Maine, with some very narrow exceptions, a conviction is forever and must be declared. There is no process of expungement.

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