Summary
stating that "[w]hile the determination of what is reasonable compensation for such services is left to the sound discretion of the trial court, it is an abuse of discretion to simply deny any compensation for such services"
Summary of this case from People v. Petto (In re Foster)Opinion
Docket No. 107084.
Decided May 1, 1989.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for appellee.
O'Dea Jamnik, P.C. (by Thomas Jamnik), for appellant.
Amicus Curiae:
Michigan Appellate Assigned Counsel System (by Barbara R. Levine).
Criminal Defense Attorneys of Michigan (by Frank D. Eaman).
Thomas Jamnik appeals as of right from the trial court's order denying in substantial part his petition for payment of fees and expenses.
Defendant, Harold B. Hunter, was convicted of armed robbery by a jury in Genesee County and was sentenced to a prison term of six to twenty years. Thomas Jamnik was appointed by the trial court to represent the defendant on appeal. Mr. Jamnik visited the defendant at Kinross Correctional Facility in the Upper Peninsula, filed a claim of appeal and brief, and orally argued the case in the Court of Appeals. Defendant's conviction was affirmed and Mr. Jamnik petitioned the trial court for payment of $1,412.22 in fees and expenses. The particulars of that petition were:
Services Rendered Hours Transcript review 3.5 Client visit 13.0 Brief on appeal 12.8 Oral argument 4.0 Research for brief 14.4 ____ Total Hours 47.7 Fee requested — 47.7 hours at $25 per hour $1,192.50 _________ Actual Expenses Client visit 540 miles X $.30 per mile $162.00 Oral argument 120 miles X $.30 per mile 36.00 Photocopying 196 pages X $.10 per page 19.60 Postage 2.12 _________ Total Expenses $219.72 _________ Total Amount Requested $1,412.22 _________
Genesee Circuit Court has an indigent attorney fee schedule which reads in pertinent part as follows:
Effective January 1, 1981
GENESEE COUNTY CIRCUIT COURT INDIGENT ATTORNEY FEE SCHEDULE
APPELLATE COURT
Basic rate of $30.00 per hour; attorney to furnish detailed verified petition specifying; the ultimate fee to be set by trial judge depending upon necessity and merit.
1. The date upon which claimed unit of time was expended.
2. The nature of the work done, (i.e., research, drafting brief, proofreading, conference with client, travel time, oral argument,
3. Hours to be computed to nearest 1/10th of an hour.
4. Time records must be accurate and based upon notations made at the time the work is done. Guessing and estimating when the work is completed will not be considered sufficient.
5. $350 maximum for appeal of guilty plea.
6. Travel time not to exceed $100 in consulting with clients incarcerated by the Department of Corrections in the lower peninsula of Michigan.
** Extraordinary Services (to be set by judge)
* All Fees and Expenses Subject to Review of the Court
In a written opinion and order, the trial court awarded Mr. Jamnik $87.50 for transcript review, $19.60 for photocopying, $2.12 for postage, and $300 for ten hours of research and briefing at $30.00 per hour. The total awarded by the trial court was $409.22.
The law pertinent to such cases is not particularly difficult or involved. MCL 775.16; MSA 28.1253 provides for court appointment of counsel for an indigent defendant charged with a felony. In part, it provides:
The attorney appointed by the court shall be entitled to receive from the county treasurer, on the certificate of the chief judge that the services have been rendered, the amount which the chief judge considers to be reasonable compensation for the services performed.
The determination of the trial court as to reasonable compensation for services will not be disturbed on appeal absent an abuse of discretion, In the Matter of Attorney Fees of William J Hayes, 55 Mich. App. 30, 34; 222 N.W.2d 20 (1974), lv den 394 Mich. 794 (1975).
We believe the following factors should be considered in determining reasonable compensation:
1. The complexity and difficulty of the case and the time and expense of counsel which can reasonably be justified.
2. The trial court's policy as to compensation.
3. The minimum standards for indigent criminal appellate defense services promulgated by the Michigan Supreme Court in Administrative Order 1981-7, 412 Mich. lxxxiv-xci.
In this case, the trial judge considered the brief on appeal and the merit of the issues raised. He considered the amount of time necessary for research and preparation by a reasonably competent attorney. He determined the number of hours for research and briefing which he felt could reasonably be justified and ordered that the time be compensated at the rate provided for in the court's indigent attorney fee schedule. In this regard, we find no abuse of discretion.
However, the trial judge refused to award any compensation for counsel's meeting with his client or for counsel's oral argument. Such services are inherent in the attorney-client relationship, provided for in the minimum standards for indigent criminal appellate defense services, and contemplated in the trial court's own indigent attorney fee schedule. While the determination of what is reasonable compensation for such services is left to the sound discretion of the trial court, it is an abuse of discretion to simply deny any compensation for such services. Accord, In re Attorney Fees of Mulkoff, 176 Mich. App. 82; 440 N.W.2d 112 (1989).
We affirm the award of $409.22 but remand for a determination of reasonable compensation for client visit and oral argument and entry of an appropriate order. We do not retain jurisdiction.
In so doing, we note that such fee disputes would be minimized by clearly written court policies sufficiently detailed to address common areas of misunderstanding. The court's policy should be provided to counsel upon appointment. For example, Genesee County's fee schedule provides a $100 limit on travel time for a client visit in Lower Peninsula prisons. It says nothing about the obvious question of Upper Peninsula client visits. It says nothing about what, if any, expenses are covered or at what rate they might be paid. It provides for extraordinary fees but says nothing about whether counsel should bring extraordinary matters to the court's attention before expenses are incurred. We urge trial courts to review their policies and to update them from time to time to help minimize disputes.