This site is meant to provide information of a general nature which you should verify with an attorney before relying on it. It does not provide legal advice and is not meant to establish an attorney-client relationship. If you are seeking legal advice you should ALWAYS contact an attorney.
The Office of the State Public Defender (OPD) began operations as a state agency in 2006. OPD provides representation to qualified persons via full-time public defenders and attorneys who contract with the agency to provide representation.
By law the OPD is responsible for providing representation in many situations. The following are the most common cases where you are entitled to an attorney provided by OPD:
- A person charged with a felony or charged with a misdemeanor for which there is a possibility of jail time;
- A youth who is charged with an offense and alleged to be delinquent or in need of intervention;
- A person who is the subject of a petition for the appointment of a guardian or conservator;
- A parent, guardian or other person with physical or legal custody whose child has been removed by the State.
- Divorce proceedings.
- Child custody cases where the State is not involved.
- Child Support Hearings.
- Restraining Orders or Order of Protection Hearings.
- Debt collection.
- Landlord Tenant Issues.
- Property Rights.
- Social Security claims.
- Employer/employee cases.
See also: Montana Code Annotated § 47-1-104(4).
A public defender is just like any other lawyer except they have decided to represent people who cannot afford to hire their own attorney. Public defenders are attorneys licensed by the State Bar of Montana. A public defender can either be an attorney employed by OPD or a private attorney who contracts with OPD to provide public defender services.
You must bring:
- Your court appointment/paperwork, which should show your case number, charge, next court date and type of hearing scheduled.
- Your most recent paystubs.
- Your most recent bank statements.
- Any documents that show you are receiving public assistance, Social Security or unemployment compensation.
- Additional documentation may be required.
- Please contact your local public defender office and ask to speak with one of our Eligibility Specialists for alternative documentation or further questions regarding qualifying for a public defender.
Once a person is arrested they usually have bond set within 24 hours of arrest, unless they were arrested over the weekend, in which case they would be seen by the judge on the next business day.
When you first appear in court the judge should ask you if you want to hire an attorney or if you want a public defender. If the judge appoints OPD, OPD will assign an attorney to represent you.
Friends or family should be able to visit you when you are in jail, depending on the jail’s visitation schedule. You should also be able to communicate by phone or mail with people while you are in the jail.
Keep in mind your right to privacy is severely reduced once you are in custody. That means the police and prosecutors can listen to telephone calls and read letters you send to others or that you receive. You should not talk or communicate with anyone about your case but your lawyer.
OPD will open your file when it receives notice from the Court you have been appointed a public defender. When it opens the file OPD will assign your case to an attorney and notify you by letter of the attorney’s name. This process usually takes just a day or two, but if there is a conflict of interest in your case it could take longer. You can also call your local OPD office to find out who your attorney is.
A conflict is when an attorney cannot represent someone because to do so would clash with the interests of another person. Situations where conflicts of interests often exist are when a person accused of a crime becomes a witness to another crime. The same attorney cannot represent both people. When there is a conflict of interest the case is referred to the conflict office for assignment of a lawyer who does not have a conflict of interest. There are many situations that create conflicts of interest, too many to list here.
OPD does not charge you for legal services if you are determined to be indigent/poor based on our poverty guidelines or due to substantial hardship. However, the court may order adults convicted of a crime and parents of juveniles to pay fees at the end of the case. The Court must consider your ability to pay the fines and fees before assessing them.
If you were sentenced after 7/1/2017 and the Court assessed a Public Defender Fee, you may make an electronic payment through our online portal. You can also send a Cashier's/Certified check or money order to 44W Park, Butte MT 59701.
Bail is money that some criminal defendants are required to deposit to guarantee they will return to court if released from jail while their cases are pending. The judge sets the amount, and the money is deposited with the clerk of the court. It is returned after the case is finished.
Bail may be posted as "cash," or through a bond. A bond is a legal contract that requires someone to pay money if a defendant fails to return to court. It is guaranteed by the assets of the person who posted it, such as real estate, savings, or valuable personal property. A "surety" bond is one in which another person or a bail bond company undertakes to make sure a defendant returns to court, upon penalty of losing the bail amount if the defendant fails to do so.
A bail bondsman will impose a fee for posting the bond, usually 10 percent of the total bail amount. That fee is non-refundable and is the cost the bondsman charges for assuming the risk of posting a surety bond for the defendant’s release.
An omnibus hearing or scheduling conference is a hearing the court sets to make sure the case is proceeding smoothly through the system. Courts handle their omnibus hearings in various ways. Some require that clients be present at the hearings. If you are ordered to appear at the hearing you must do so. If you do not appear the Court could issue a warrant for your arrest or you could forfeit your right to a jury trial. Omnibus hearings are also times for attorneys to file motions, advise the court of witnesses, set a trial date, and otherwise deal with scheduling issues related to the case.
A court hearing where the defendant is asked to plead guilty or not guilty to the charges. OPD will provide an attorney to represent the defendant at arraignment if the Defendant requests appointment of an attorney.
If you want a public defender you should tell the judge you would like a public defender appointed to represent you and plead not guilty. If the judge asks you whether you want a judge or jury trial you should request a jury trial to preserve that right.
In most courts a public defender will be present when defendants have their arraignment/initial appearance. However, due to the number of courts OPD appears in there may be times when a public defender is not present. If there is an attorney present at your arraignment that attorney may or may not be the attorney who represents you for the rest of your case.
If you are out of custody, you will need to complete a financial screening at the OPD office to find out if you are qualified to receive a public defender. If possible, you should come into the OPD office immediately after your arraignment to complete this screening.
If you want a public defender but one is not in the courtroom during your arraignment/initial appearance, you should tell the judge you would like to plead not guilty, request appointment of a public defender, and ask the court set your case for a jury trial.
If you missed your court date, contact your attorney immediately, since it is likely the judge issued a warrant for your arrest, called a bench warrant. Often your attorney can make arrangements with the Court for you to appear on the bench warrant. If you voluntarily appear before the Court on the bench warrant you may still be placed in jail. However, the chances are much better that the judge will let you remain free if you appear before the Court on your own, rather than if you appear after being arrested on the bench warrant. Your lawyer can advise you about what to expect in court and documents you might bring to court to explain your absence.
You have probably heard on television the speech that is read after an arrest: “You have the right to remain silent. Anything that you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you free of charge. These are the “Miranda warnings,” which explain your constitutional right not to answer questions from the police and to have a lawyer appointed to represent you if you cannot afford to hire one.
In many arrests, the police do not attempt to take a statement from the person who is arrested. In such situations, the police may not read the Miranda warnings, since they are only required to do this when they intend to question a suspect. You should be aware that anything you say in the presence of a police officer might be used against you, even if the Miranda warnings have not been given. Police are even allowed to use statements that they overhear you make during a telephone call, or while you are talking to other prisoners. You should therefore be extremely careful what you say while you are in custody.
If the police decide to question you, their goal will be to gain an admission that can be used in the case against you. You should not answer questions or make a statement to the police unless there is a lawyer present to protect your rights. Sometimes people under arrest decide to make statements without a lawyer because they believe that they can persuade the police to let them go, process them faster, or gain some other benefit. This almost never happens, and the statements that such people make seriously hurt their cases. If you have information that will help your case, wait to tell it to your lawyer, who will help you decide the best way to use this information.
If you are already represented by a lawyer, you should tell the police and ask them to notify your lawyer about your arrest.
If you have a legitimate complaint about your attorney, call the OPD Regional Office, ask for your attorney's supervisor, and talk with him or her about any problems with your attorney. Many problems can be resolved by the attorney's supervisor. If you cannot reach the supervisor or if the supervisor cannot resolve the problem, contact the Regional Office and ask them to send you a complaint form.
No, OPD assigns your case to an attorney based on a number of factors including experience, location, caseload, and the court(s) the attorney regularly practices in.