Trial Court Improperly Denied Attorney’s ‘Full Fee Request’
A trial court erred in denying a court-appointed attorney’s “full fee request” without first making findings as to the reasonableness of the attorney fees, the Michigan Court of Appeals has ruled.
In the case of In re Attorney Fees of Michael A. Faraone (Docket No. 369180), attorney Michael A. Faraone served as court-appointed counsel for the defendant in an underlying criminal matter. Afterward, Faraone submitted an itemized bill to the Kent County Circuit Court for his work, requesting $4,340 in attorney fees and $261.12 in expenses. The trial court approved only $2,205 in attorney fees, along with the $261.12 in expenses. The trial court did not explain the amount it awarded other than commenting, “Reviewed by Judge Trusock and flat rate cap was approved.” When the trial court denied Faraone’s motion for reconsideration, he appealed.
The Court of Appeals vacated the fee award and remanded the case “for the trial court to either award appellant the full amount of the requested fees or articulate its basis for concluding that the amount was not reasonable.”
Judge Mark T. Boonstra, Judge Christopher M. Murray and Judge Thomas C. Cameron were on the appellate panel that issued the unpublished opinion.
‘Reasonableness’ Findings Must Be Made
On appeal, Faraone argued the trial court wrongly denied his full fee request without making any findings concerning the reasonableness of the fees.
“We agree,” the Court of Appeals said, pointing out that before MCL 775.16 was amended in 2013, the statute “explicitly provided that a court-appointed attorney who represented an indigent defendant was entitled to reasonable compensation.” However, “the statute now simply provides that an indigent defendant has the right to an appointed counsel.”
The Michigan Supreme Court “has referred to the reasonable-compensation requirement after MCL 775.16 was amended,” the Court of Appeals said, citing In re Ujlaky, 498 Mich 890 (2015). In Ujlaky, the Michigan Supreme Court noted the trial court “applied the county’s fee schedule, which capped compensation for plea cases at $660, but did not address at all the reasonableness of the fee in relation to the actual services rendered, as itemized by the appellant. … The Michigan Supreme Court [in Ujlaky] explained that ‘[a]lthough the expenditure of any amount of time beyond that contemplated by the schedule for the typical case does not, ipso facto, warrant extra fees, spending a significant but reasonable number of hours beyond the norm may.’ … Therefore, the Michigan Supreme Court remanded the case, instructing the trial court to ‘either award the requested fees, or articulate on the record its basis for concluding that such fees are not reasonable.’” (See, “Attorney Fights to Obtain a Meager But ‘Extraordinary Fee’ In Court-Appointed Criminal Appeal” and “Trial Court Did Not Give ‘Adequate Explanation’ For Reducing Appellate Attorney Fees” on the Speaker Law Blog.)
The Court of Appeals further noted that in In re Foster, 329 Mich App 371 (2019), an appellate panel held that “the trial court abused its discretion by failing to either award [defense counsel] the full amount of requested fees or articulate its basis for concluding that the amount was not reasonable.”
Similar to Foster and Ujlaky, the trial court in the present case “was not permitted to merely reduce appellant’s requested attorney fees based on a fee schedule or fee cap,” the Court of Appeals said. “Rather, it was required to consider whether the hours billed by appellant were reasonable. Because the trial court did not award the full amount of attorney fees requested, or in the alternative make findings concerning the reasonableness of the fees in relation to the actual services rendered, it abused its discretion.”
Therefore, “remand is necessary for the trial court to ‘either award the requested fees, or articulate on the record its basis for concluding that such fees are not reasonable,’” the Court of Appeals concluded.
Not The First Faraone Appeal
Faraone has previously appealed several trial court rulings involving court-appointed attorney fees.
Notably, in 2021 the Court of Appeals held in a 2-1 decision that the Ottawa County Circuit Court abused its discretion in finding that Faraone’s appellate fees were excessive and unreasonable. The Court of Appeals instructed the trial court to “either award the full amount requested related to the work performed or ‘articulate on the record its basis for concluding that such fees are not reasonable.’” (See, “Trial Court Must Explain Why Appellate Attorney’s Fees Are Unreasonable” on the Speaker Law Blog.)
Appellate fees for court-appointed attorneys have been a continuous point of contention in Michigan. To learn more about appellate attorney fees, see Liisa Speaker’s article “Extraordinary Fees in Court-Appointed Appeals” in the November 2019 issue of the Michigan Bar Journal.
