A public defender and a private lawyer are both licensed attorneys with the same professional duties to you. The differences in a partner or family member assault (PFMA) case are practical ones: whether you qualify, whether you choose the lawyer, when the work can start, and whether the representation reaches the civil cases that often come with a domestic charge. This page compares them without ranking them. It is part of our Montana Domestic Violence Guide.
Side by Side
| Question | Public defender | Private lawyer |
|---|---|---|
| Who can use it | A person who cannot afford private counsel, charged with a felony or with a misdemeanor where jail is a sentencing option. | Anyone who retains one. |
| Who picks the lawyer | The Office of State Public Defender assigns one. | You do. |
| When it starts | When the court orders counsel assigned, usually at the initial appearance. | Whenever you hire, including before charges are filed. |
| What it covers | The criminal case, through final judgment and any direct appeal. | Whatever the written fee agreement covers, which can include a related civil or family case. |
| Cost | Addressed at sentencing. A convicted defendant who is able to pay may be ordered to pay costs of counsel. | A fee set by agreement, communicated in writing. |
| Professional duties | The Montana Rules of Professional Conduct. | The same rules. |
Who Qualifies for a Public Defender
At the initial appearance every defendant must be told of the right to counsel and asked whether the aid of counsel is desired (MCA § 46-8-101(1)). If you want assigned counsel because you cannot afford a private lawyer, and the charge is a felony or a misdemeanor with incarceration as a sentencing option, the court orders the Office of State Public Defender to assign counsel without unnecessary delay, pending a determination of eligibility (MCA § 46-8-101(2)).
An applicant is indigent under MCA § 47-1-111(3) if either of these is true:
- gross household income is at or below 133% of the federal poverty level; or
- the disposable income and assets of the applicant and household members are insufficient to retain competent private counsel without substantial hardship.
A determination of indigence may not be denied based solely on the ability to post bail or solely because the applicant is employed (MCA § 47-1-111(4)). The determination can be revisited if your finances change or new information comes in (MCA § 47-1-111(5)).
How Appointment Works
The office assigns counsel immediately when the court orders it, before eligibility is decided (MCA § 47-1-111(1)(a)). You then complete an application, a detailed financial statement, and an affidavit signed under penalty of perjury (MCA § 47-1-111(2)). If you are later found ineligible, the office moves to rescind the appointment, and you may ask for a hearing limited to your finances (MCA § 47-1-111(1)(b) and (c)). Be accurate on the forms. A false statement can be prosecuted.
Once assigned, counsel stays on the case until final judgment, including a direct appeal to the Montana Supreme Court, unless relieved by court order (MCA § 46-8-103(1)). There is one exception to know about. In a misdemeanor case the court may order at the initial appearance that incarceration will not be used as a sentencing option. If it does, a public defender may not be assigned (MCA § 46-8-101(3)).
What a Public Defender May Cost
The question of cost comes at sentencing. After a conviction, the court determines whether the defendant should pay the costs of assigned counsel (MCA § 46-8-113(1)):
- $250 if the defendant pleads guilty before trial to one or more misdemeanors and no felonies;
- $800 if the defendant pleads guilty before trial to one or more felonies; and
- the costs incurred by the office if the case goes to trial.
The court must ask about ability to pay and may not impose these costs on a person who is not and will not be able to pay them (MCA § 46-8-113(3) and (4)).
What the Appointment Does Not Cover
The public defender statute lists the kinds of cases in which counsel may be assigned (MCA § 47-1-104(4)). A criminal charge with possible jail is on the list. A respondent's side of a civil order of protection case is not, and neither is a divorce or an ordinary parenting case. In a domestic matter those cases can run alongside the criminal charge, and each can affect the others. See getting a lawyer for an order of protection hearing and one lawyer for criminal and family cases.
What Private Counsel Adds
- Choice. You decide who represents you after meeting them.
- Timing. You can hire a lawyer during an investigation, before any court has ordered an appointment.
- Scope. One lawyer or firm can handle the criminal case and a related civil or family case, if you retain them for both.
What private counsel does not add is a different set of rules or a promised result. The evidence, the judge, and the statutes are the same. Fees are the tradeoff, and our page on what a PFMA lawyer costs explains how they are set.
Choosing
If you qualify for a public defender and the criminal charge is the only case, appointed counsel is a sound choice, and you should work closely with the lawyer assigned. If you do not qualify, or there is an order of protection or family case too, or you want to choose your own lawyer, look at private counsel. Our list of questions to ask a PFMA lawyer works for either. For more on appointed counsel, see public defender in a PFMA case.
Whichever you choose, the no contact order and your release conditions apply from the start. Follow them exactly.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.