forattorneys

Criminal Defense Attorneys
of Michigan
(CDAM)

FOR ATTORNEYS CHALLENGING FEES:

What Resources Exist for Attorneys Wishing to Challenge Fees?

Trial court motions and appellate briefs are maintained by SADO's Criminal Defense Resource Center in a searchable database.

Sample motion for attorney fees and expenses.

Sample time sheet for tracking work on an individual case.

What is the Legal Authority for Fees?

A state statute, MCL 775.16, provides that an attorney appointed to defend an indigent person charged with a felony is entitled to "reasonable compensation" for services rendered. This statute gives an attorney the right to go before the chief judge, and to seek an appeal, in pursuit of reasonable compensation. 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).

When seeking the appointment of or expenses for an investigator or expert, multiple constitutional rights may be implicated. The appointment of an expert or investigator may be required to safeguard the defendant’s due process right to present a defense, the Sixth Amendment right to confrontation and the Sixth Amendment right to the effective assistance of counsel. When making a request for an expert or investigator, counsel should assert any and all applicable constitutional rights and address the specific relevant circumstances of the case that would result in a denial of the constitutional right if an expert or investigator is not appointed.

What about other Litigation on Fees in Michigan?

The Criminal Defense Resource Center maintains an updated page on litigation efforts, both past and present, at www.sado.org/publicdefense.

What Ethics Rules Apply?

Michigan Rules of Professional Responsibility discourage the acceptance of assignments when taking them will invoke economic hardship on an attorney, or the inability to provide adequate representation. Withdrawal is also permitted if there is financial hardship.

See MRPC 6.2, Accepting Appointments: A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

See also, MRPC 1.16, Declining or Terminating Representation:
* * *
(b) * * * a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
* * * *
(5) the representation will result in an unreasonable financial burden on the lawyer * * * .

Please note that under MRPC 1.16(c), once a lawyer accepts a case, the lawyer must continue to represent the client if ordered to do so by the tribunal, if a motion to withdraw is denied.

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.

What about Contracts for Defense Services?

The National Legal Aid and Defender Association has come out against certain contracts, particularly "low bid" contracts that include disincentives to adequate defense services. NLADA has developed a model contract for defense services.