backgroundonfees

Criminal Defense Attorneys
of Michigan
(CDAM)

BACKGROUND ON ATTORNEY FEES

Why are Adequate Fees Important?

The state and federal constitutions guarantee both effective assistance of counsel and a fair trial, neither of which is possible without access to adequate defense resources.

Thomas Cranmer, 2006 President of the State Bar of Michigan, has urged review of Michigan's public defense system, including fees paid to counsel: http://www.sado.org /publicdefense/Cranmer%20article%20February%202006.pdf

Patricia A. Maceroni, CDAM Secretary and Macomb County attorney, has issued a "Call to Action" on the subject: click here for complete article.

The Michigan Public Defense Task Force has drafted legislation to create a statewide public defense system that would ensure adequate resources: www.mipublicdefense.org.

Who Pays for Assigned Counsel in Michigan?

At the trial court level, county governments pay all costs of assigned counsel. Michigan is one of just a handful of states providing no state funding for trial-level public defense.

At the appellate level, county governments pay about 75% of assigned counsel costs, using a roster system administered by the Michigan Appellate Assigned Counsel System. The remaining 25% of appellate cases are handled by the State Appellate Defender Office, which is state-funded.

What Fees are Currently Paid to Assigned Counsel in Michigan?

The Criminal Defense Resource Center has surveyed Michigan counties since 1999, posting results at www.sado.org/publicdefense/. Each county has a different system for defense services, using contracts with private attorneys, hourly fee schedules, event-based fee schedules, and public defender offices.

The State Legislature adopted Senate Concurrent Resolution 39, which urges collection of data (fees, number and types of assigned cases). The data collection project will be performed by the National Legal Aid and Defender Association and the State Bar of Michigan.

What Fees are Assigned Counsel Entitled to Collect

In Michigan, assigned counsel are entitled to collect a “reasonable fee,” in felony assigned counsel cases upon certification of the chief judge that the services have been performed. MCL 775.16. That reasonable fee statute gives assigned counsel a right to seek a court order from the chief judge for a reasonable fee. See, In re Burgess, 69 Mich.App. 689, 245 N.W.2d 348 (1976), In re Ritter, 63 Mich.App. 24, 233 N.W.2d 876 (1975), reversed on other grounds, 399 Mich. 563, 249 N.W.2d 301 (1977); In re Recorder’s Court Bar, 443 Mich. 110, 503 N.W.2d 885 (1993). Few lawyers are aware of this right, or take action to enforce it.

When are Assigned Counsel Entitled to the Assistance of an Expert or an Investigator?

An expert should be appointed at public expense when a defendant demonstrates that he or she cannot safely proceed to trial without that expert. People v Tanner, 469 Mich 437 (2003) [DNA or serology expert]; People v Kosciecha, 185 Mich App 672 (1990) [accident reconstruction expert]. An indigent defendant is entitled to a waiver of costs for court fees, transcripts and expert witnesses reasonably necessary for the defense. People v Davis, 199 Mich App 502 (1993). Upon demonstration of need, appointment of an investigator for the defense also should be allowed. Mason v. Arizona, 504 F.2d 1345, 1352-1353 (9th Cir. 1974), cert den 420 U.S. 936 (1975) [relying on Gideon v. Wainright, 372 U.S. 335 (1963).]