No. 14305
I N THE SUPREME C O W O THE STATE OF M3NTANA
F
1979
T O rnANA,
Sm F
P l a i n t i f f and Respondent,
-VS-
GUY JOHN ALLIES,
Defendant and Appellant.
Appeal f m : D i s t r i c t Court of t h e Thirteenth Judicial D i s t r i c t ,
Hanorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellant:
Richter and Lemer, Billings, Mntana
Frank Richter argued, Billings, Wntana
For Respondent:
Hon. Mike Greely, Attomey General, Helena, Wntana
Mike m r e argued, Assistant Attomey General, Helena, Mntana
at r
Harold Hanser, County Attorney, Billings, Wntana
James Walen argued, Deputy County Attomey, Billings, Mntana
Suhnitted: November 27, 1978
Decided: APR 2 4 1979
Mr. Chief J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion o f
t h e Court.
T h i s c a s e i s now b e f o r e t h e C o u r t on a motion t o f i x
a t t o r n e y f e e s on a p p e a l . Movants a r e a f i r m of a t t o r n e y s a p p o i n t -
ed by t h e D i s t r i c t C o u r t of Yellowstone County t o r e p r e s e n t an
i n d i g e n t d e f e n d a n t i n a major f e l o n y c r i m i n a l c a s e a t p u b l i c
expense.
Guy John A l l i e s , an i n d i g e n t , was c h a r g e d w i t h f o u r c o u n t s
o f d e l i b e r a t e homicide by t h e c o u n t y a t t o r n e y of Yellowstone
County. A B i l l i n g s law f i r m w a s a p p o i n t e d t o r e p r e s e n t him b o t h
i n t h e D i s t r i c t C o u r t and upon a p p e a l . F o r t h e i r s e r v i c e s and
e x p e n s e s t o t h e t i m e of and t h r o u g h t h e t r i a l s t a g e s , c o u n s e l were
p a i d a t t h e r a t e of $35.00 p e r hour f o r a t o t a l of $42,000 p l u s
dollars. T h i s sum h a s been p a i d by Yellowstone County and no
i s s u e i s r a i s e d c o n c e r n i n g t h i s f e e which c o v e r s t h e p e r i o d from
appointment March 1 4 , 1977 t o t h e end of t r i a l on F e b r u a r y 3 , 1978.
Defendant w a s c o n v i c t e d a f t e r j u r y t r i a l and he and h i s
a t t o r n e y s have i n i t i a t e d an a p p e a l t o t h e c o u r t . The D i s t r i c t
Judge, a f t e r a l l o w i n g t r i a l f e e s on F e b r u a r y 3 , 1978, n o t e d on t h e
claim t h a t f e e s on t h e a p p e a l would be l i m i t e d t o a f l a t $2,000
p l u s expenses. From t h i s $2,000 t h e d i s t r i c t judge d e d u c t e d $525
f o r s e r v i c e s a t t h e s e n t e n c i n g which h e c o n s i d e r e d as p a r t of t h e
appeal.
D e f e n d a n t ' s a t t o r n e y s have f i l e d a motion i n t h i s Court
s e e k i n g an o r d e r s e t t i n g t h e i r r a t e of compensation f o r s e r v i c e s
on a p p e a l a t t h e r a t e of $40.00 p e r hour p l u s t h e i r e x p e n s e s t o
be p a i d by Yellowstone County on a monthly b a s i s f o r a c t u a l t i m e
and c o s t s expended. They c o n t e n d t h a t t h e o r d e r of t h e d i s t r i c t
judge f i x i n g t h e i r f e e a s h e r e t o f o r e set o u t i s u n r e a s o n a b l e and
an a b u s e o f d i s c r e t i o n .
section
S e c t i o n 95- 1005, R.C.M. 1947, now/46-8-201 MCA, states:
"Remuneration of appointed counsel. (1) Whenever
in a criminal proceeding an attorney represents
or defends any person by order of the court on
the ground that the person is financially unable
to employ counsel, the attorney shall be paid for
his services such sum as a district court or jus-
tice of the state supreme court certifies to be
a reasonable compensation therefor and shall be
reimbursed for reasonable costs incurred in the
criminal proceeding."
"Reasonable compensation to relator is required by the
statute. The determination of 'reasonable compensation' is a
discretionary function of the judge under the statute. The exer-
cise of a judge's discretion will not be disturbed absent abuse
thereof. Luebben v. Metlen (1940), 110 Mont. 350, 100 P.2d 935."
State ex rel. Stephens v. District Court (1976), 170 Mont. 22,
"The fee need not be of an amount equal to that
from a paying client, but should strike a balance
between conflicting interests, including the
professional obligation of a lawyer to make legal
counsel available and the increasingly heavy
burden on the legal profession created by expanded
indigent rights. Court appointed counsel should
neither be unjustly enriched nor unduly impover-
ished, but must be awarded an amount which will
allow the financial survival of his practice. A
county shall pay a reasonable amount for all pro-
fessional services which are not donated."
"Elements of consideration in fixing fees include
the amount of time and effort expended, the nature
and extent of the services rendered, the fees paid
for similar service in other jurisdictions, the
traditional responsibilities of the legal profes-
sion, the amount of public funds made available
for such purposes, and a judicious respect for the
tax paying public as well as the needs of the accused
State v. Lehirondelle (1976), 15 Wash-App. 502, 550
P.2d 33, 34-35. See also Hill vs, Superior Court,
Humbolt County (1956), 46 Cal.2d 169, 293 P.2d 10;
Bennett v Davis County (1971), 26 Utah 2d 225, 487
.
P.2d 1271; State v. Horton (1961), 34 N.J. 518, 170
A.2d 1; 18 ALR3d 1074.
Movants first contend that $40.00 an hour is a reasonable
compensation for their services on appeal and that a flat fee of
$2,000 is not. They argue that the overhead of their law firm
amounts to about $20.00 per hour and that to date of hearing they
have spent 41-3/4 hours reading a transcript of approximately
1,750 pages; 104-1/2 hours in legal research and production
of appellant's brief; and 8-1/4 hours in performing miscellaneous
services.
Their argument is unconvincing. They are not entitled to
charge the entire overhead of their law firm against this one
case. Apparently there are three or perhaps four lawyers in
the firm, but it is inconceivable that all spent their entire
time and the time of their office staff on this case to the ex-
clusion of all other clients and cases. For further guidance of
the District Court, we expressly disapprove of the practice of
appointing an entire law firm rather than an individual lawyer
as court appointed counsel for an individual charged with a crime.
This practice leads to many abuses such as duplication of ser-
vices, wasted effort, fragmentation of responsibility and author-
ity, to name a few.
The fee they are asking amounts to over $6,000 for the
appeal to date and it has not yet been argued. Most of the legal
research necessarily had to have been performed prior to trial
for which counsel was compensated handsomely to the tune of over
$42,000. As stated above, in striking a balance between the
age-old responsibility of providing gratuitous service to indi-
gent defendants and the increasing burdens placed on the bar by
expanded indigent rights, much discretion must be left in the
trial judge. We find the fixing of the flat fee of $2,000 for
the appeal is not such abuse of discretion as to require inter-
vention by this Court. The request for prepayment is denied. The
statute requires the District Court to certify the services have
been rendered. However the $525 formerly granted for services at
the sentencing hearing should not be deducted from the appeal fee.
As to the third issue of denial of constitutional rights,
the discussion in State ex rel. Stephens vs. District Court, supra,
at pp. 28, 29, is pertinent:
"Be that as it may, we do not consider the con-
stitutional guarantee of effective assistance of
counsel impaired by denial of compensation that
is not reasonable."
See also Daines v. Markoff (Nev. 1976), 555 P.2d 490, 493:
"The professional obligation to respond to the call
of the court is an incident of the privilege to
practice law, and does not offend constitutional
commands. United States v. Dillon, 346 F.2d
633 (9th Cir. 1965); State v. Rush, 46 N.J. 399,
217 A. 2d 441 (1966); Lindh v. O'Hara, 325 A. 2d
84 (Del. 1974). Neither our state constitution
nor the federal constitution precludes service to
indigents without 'full' compensation."
Because the problem of fixing reasonable fees is a re-
curring problem this Court will set the following guidelines:
That if a trial court allows fees on a hourly basis the maximum
amount allowed per hour shall be not more than $30.00 per hour
subject to a total maximum of $5,000 in any given criminal pro-
ceeding without prior court approval.
The motion is denied except that the full amount of $2,000
shall be available to pay attorney fees on the appeal of this
matter.
Chief Justice
Justices
Mr. Justice John C. Sheehy, deeming himself disqualified, did
not participate in this cause.