Trial Court Must Explain Why Appellate Attorney’s Fees Are Unreasonable
A trial court abused its discretion when it held that a court-appointed lawyer’s appellate fees were excessive and unreasonable, the Michigan Court of Appeals has ruled.
In re Attorney Fees of Michael A. Faraone (Docket No. 353378) involved Lansing attorney Michael A. Faraone’s request for $1,725 in appellate fees for handling a criminal appeal. The Ottawa County Circuit Court denied the request and, instead, awarded Faraone $1,125 in fees.
The Court of Appeals reversed and remanded in a 2-1 decision.
“Although the trial court abused its discretion, we note that extensive analysis by the court is not required but that it must indicate how the claimed hours are being adjusted,” the Court of Appeals said. “On remand, the court must 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.’”
Judges Cynthia Diane Stephens and Michelle M. Rick joined the majority opinion. Judge David H. Sawyer dissented, saying the trial court sufficiently explained why the request was unreasonable.
Background
The defendant in the underlying matter was charged in Ottawa County Circuit Court with two counts of delivery of less than 50 grams of cocaine. The defendant pleaded guilty to count 1 and, in exchange, count 2 was dismissed. The defendant was on parole at the time and told the trial court his agent stated that he would receive jail credit. The trial court told the defendant the Michigan Department of Corrections (MDOC) handled parole violations. The defendant stated, “I signed a waiver and [MDOC] said that my violation started.” The trial court explained that, if the violation ended before the defendant was sentenced for delivery of less than 50 grams of cocaine, he would receive jail credit. The trial court also explained that no matter how the MDOC handled his parole violation, his sentence would be consecutive. The trial court sentenced the defendant as a fourth-offense habitual offender to a prison term of 2 to 20 years, to be served consecutively to the defendant’s parole violation sentence. The trial court told the defendant, “You have zero days’ credit because … it is consecutive.”
Faraone was appointed as the defendant’s appellate lawyer. He filed a motion to withdraw the defendant’s plea on the basis that the defendant was “misled into believing that he would receive jail credit.” The trial court granted the defendant’s request to withdraw his plea and granted Faraone’s request to give the defendant a 21-day period to reconsider his motion. Subsequently, the trial court entered an order leaving the defendant’s guilty plea intact on the basis that the defendant, in a letter to the trial court, stated that he no longer wished to withdraw his guilty plea.
Thereafter, Faraone filed a motion requesting $1,725 in attorney fees and $575.70 in actual expenses, for a total of $2,300.70. Faraone indicated that he was willing to testify if the trial court wanted to conduct an evidentiary hearing. The trial court, however, did not conduct a hearing and, instead, entered an order granting in part and denying in part Faraone’s motion for fees.
In its order, the trial court noted that Faraone filed a Michigan Appellate Assigned Counsel System (MAACS) Statement of Service and Order for Payment of Court Appointed Counsel voucher (MAACS voucher) requesting $1,725 in fees. According to the trial court, this amount represented “29.1 hours at $75 per hour, $192.50 in travel hours, and $383.20 in expenses, a total of $2,300.70.” The trial court further noted that “$75 per hour [was] the non-travel hourly rate for appointed appellate counsel in Level II criminal cases for plea-based appeals established by MAACS.” The trial court explained, “The Court is starting with the presumption that 15 hours is reasonable in that appellate counsel voluntarily consented to represent defendant with the full knowledge of MAACS parameters of 15 hours for plea based appeals.”
The trial court ultimately approved $1,125 in attorney fees, the “‘presumptive maximum fee,’” plus $192.50 in travel hours and $383.20 in other expenses, for a total of $1,700.70. The trial court found that 15 hours was a “reasonable number of hours for [Faraone] to have expended” on the plea-based appeal. The trial court also found Faraone “knew of the rate of pay, and the standard maximum fee when he accepted the appointment.”
Faraone appealed.
‘Lack Of Justification’
On appeal, Faraone argued the trial court abused its discretion by finding the request for $1,725 in appellate attorney fees was excessive or unreasonable.
“We agree,” the Court of Appeals said. Noting that although trial courts have “wide discretion” in determining reasonable attorney compensation, the appeals court explained that trial courts may not “simply deny” compensation for billed services without an explanation.
According to the Court of Appeals, the trial court properly relied on the factors in Smith v Khouri, 481 Mich 519 (2008), to determine the reasonableness of fees. “The Michigan Supreme Court recently revisited the Smith framework,” the Court of Appeals noted, “and set forth the following non-exhaustive list of factors that a court should consider in determining the reasonableness of an attorney fee:
the experience, reputation, and ability of the lawyer or lawyers performing the services,
the difficulty of the case, i.e., the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,
the amount in question and the results obtained,
the expenses incurred,
the nature and length of the professional relationship with the client,
the likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer,
the time limitations imposed by the client or by the circumstances, and
whether the fee is fixed or contingent.”
In this case, Faraone submitted a MAACS voucher with an itemized bill of services totaling 23 hours, the Court of Appeals pointed out. “In denying in part [Faraone’s] request for fees, the trial court analyzed the Smith factors and explained: ‘None of these factors justify an attorney fee greater than what counsel contemplated when he voluntarily accepted the case. The time counsel claims to have spent on this plea based conviction is excessive given the straightforward issue involved. There is, comparatively, much time billed for administrative matters and communications with client. Such time is squarely within the contemplated contract. This amount of time spent on these “routine” administrative matters is excessive in that the file is rather minimal in that it contains basic court documents. Given counsel’s experience, he should have used the efficiencies gained through that experience to set forth his positions within the time parameters which he agreed when he accepted the case.’”
Even though the trial court “offered some justification” for the fee it awarded, it failed to consider “the reasonableness of the fee” in relation to the “actual services rendered,” as itemized by Faraone, the Court of Appeals explained, citing In re Ujlaky Attorney Fees, 498 Mich 890 (2015). “Rather, it appears the court merely concluded that the case could have been handled in 15 hours. Although the court indicated that 15 hours was the ‘standard maximum fee’ for a plea-based appeal as established by MAACS, that reasoning alone is insufficient to establish that the requested fees for services rendered beyond 15 hours were unreasonable.”
Moreover, the trial court could not “simply deny” eight of the claimed hours, the Court of Appeals observed. “And the trial court could not merely characterize the claimed amount as ‘unreasonable’ with no explanation as to why the services performed by [Faraone] were unreasonable.”
Therefore, given the lack of justification provided by the trial court, “we are left to wonder what services performed by [Faraone] and specifically delineated on his bill were unwarranted,” the Court of Appeal said. “However, we do not mean to suggest that the trial court must accept appellant’s claimed hours at face value. If, on remand, the trial court finds that the amount of time spent on services was unreasonable, it must state, with specificity, those services which it finds unreasonable and articulate a basis for that conclusion. In the absence of such analysis, we cannot say that the court’s attorney-fee award was a principled outcome.”
The same day the foregoing decision was issued, the Court of Appeals also ruled in another case involving a request by Faraone for appellate attorney fees. The same appellate panel decided that case (Docket No. 354098), reversing and remanding the matter to the Jackson County Circuit Court because the trial court failed to address the reasonableness of the fees that Faraone requested but was not awarded.
Appellate fees for court-appointed attorneys has been a sticking point in Michigan legal circles for many years. To learn more about establishing appellate attorney fees, see Liisa Speaker’s article, “Extraordinary Fees in Court-Appointed Appeals” in the November 2019 issue of the Michigan Bar Journal.
