Judges can no longer arbitrarily reduce the legal fees owed to private attorneys appointed to represent criminal defendants without justifying their action and facing possible appellate review, according to a ruling last week by the Hawaii Supreme Court.
The Supreme Court’s decision puts an end to a practice that has drawn complaints from defense lawyers for years.
The ruling resulted from an appeal filed by veteran attorney David Bettencourt, who represented a Honolulu teenager who faced charges of attempted murder and firearms violations in a 2008 freeway shooting. The teen, Joshua Gonda, was found not guilty on all charges after a three-week jury trial.
Court-appointed attorneys are assigned to represent criminal defendants who can’t afford to hire a lawyer and are turned down by the public defender due to legal conflicts or other issues. Court assigned cases represent the bread and butter work for a few lawyers, while many others take on some court-assignments along with their private clients.
They paid $90 per hour with maximum amounts for each kind of case, both set by state law. For example, the maximum standard fee for a felony case is $6,000, while misdemeanor trial fees are capped at $3,000 and petty misdemeanors at $900.
Fees above those maximums can be awarded by the judge in the case if it “is necessary to provide fair compensation,” and if approved by the administrative judge.
Following the Gonda trial, Bettencourt submitted a bill for $38,569 in excess fees for 428.1 hours of work. The request was approved by the judge who presided in the trial, but Administrative Judge Richard Perkins reduced the amount by nearly one-third to just $26,640.
According to a memo sent to the fiscal office by the court clerk, quoted by the Supreme Court, Judge Perkins did not explain his action:
The reason that the request for attorney fee totals do not match the hourly worksheet totals is that [the administrative judge] summarily reduced the amount.
Because the attorney requested an amount of compensation over the $6,000 statutory limit, [the administrative judge] was entitled per the Crim. Admin. Order to summarily reduce the fees granted by the court to a reasonable amount.
Therefore, there are no changes that I can make to the hourly worksheet totals, since the changes were summarily made by [the administrative judge] based on his discretion and were not based on particular inaccuracies or errors in the hourly worksheets.
In his appeal, Bettencourt argued:
“…arbitrary excess fee reductions pose a constitutional threat to the indigent defendant?s right to competent legal representation and the ?court-appointed attorney?s right to due process and interest in fair compensation.”
The state, represented by the attorney general’s office, countered that judges have “unfettered discretion” to allow or disallow fees without explanation or further review.
In a 17-page opinion filed on October 19, the Supreme Court agreed with Bettencourt on all issues raised, ruling that both reviewing judges are to apply the “fair compensation” standard, that their decisions are subject to appeal, and reasons for reducing fee requests must be given. The court overturned the fee reductions made by Judge Perkins and sent the matter back for further review under its new guidelines.
In an interview last year, Bettencourt said attorneys are kept in the dark regarding their fee requests.
“We don’t get any hearing or notice when they review our bills,” Bettencourt said. “We don’t even know that they’ve cut the fees until after the order has been filed.”
Other attorneys have complained of apparent favoritism displayed by certain judges who seem to approve higher fees for certain lawyers. Bettencourt said he was aware of such complaints but had not investigated them.
“Certain judges almost always cut fee requests,” another defense attorney said, often under apparent budget pressure.
Bettencourt said the state should follow the a procedure similar to the federal courts, where a representative committee now reviews the bills submitted for payment using an open process that provides more protection for attorneys’ rights.
However, he said reforms in court procedures have been difficult to make in the past. Attorney fees for court-appointed lawyers remained the same from 1987 until 2005, and getting legislative approval for that fee increase took years of effort.
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Surprising that Rick Perkins pulled this hatchet job. He was a long-time criminal defense attorney and attorney for the state Senate. He should know both what a trial like that would have entailed and what authority the legislature intended to give — and withhold from — the judges making fee award decisions. That being the case, perhaps the reduction indicates that impermissible fiscal/budgetary considerations were brought to bear. That would not be surprising, considering the failure of the legislature to adjust compensation from 1987 to 2005.
And for anyone who might complain about “wasting” money on criminal defendants, what better case could there be to justify that expense than one in which a man facing life in prison was acquitted on all charges? Sort of like the money we “waste” when we send people to death row only to have privately funded DNA and Innocence Project representation prove them innocent.
This is another indication of refreshing change under the “Recktenwald Court.” Under the previous CJ, oral argument was eliminated almost entirely and fees for indigent appellate representation were routinely withheld until after a case was decided, which meant that attorneys might not be paid, literally, for years.