*1 County, Conway, Sauk v. Respondent. Appellant, Welter, Plaintiff, State, Defendant. v. April 1963.
March 8 *3 For the there was a brief and oral appellant argument by Baraboo, in S. Vaughn Conway pro. per. was a
For the there brief and oral respondent argument Newcomb, Paul M. counsel. corporation of fees Statutory authority payment Fairchild, J. and disbursements to counsel for an de- indigent 957.26, found in sec. Stats. That section fendant is formerly limited the for services to for each half $25 court, half day for each not exceed- day preparation, $15 for each half day five at the tak- days, attending ing $15 Ch. Laws effective ing depositions. *4 30, 1961, section, amended this the September striking out the material now reads: limits and portion “The shall the pay so attorney appointed such order, 256.49, sum as the court shall sec. pursuant to as com- and his actual disbursements for pensation and travel necessary automobile travel to be expense, other compensated at cents a mile.” not over seven 256.49, Stats., reads in material
Sec. part: shall, “. . . court after the appointing attorney services of the have been and the dis- performed incurred, fix bursements the amount of his the services and provide for of disbursements repayment in such sum as the court shall deem and which proper, com- shall be such as is pensation customarily charged by attorneys this state services.” comparable considered that Apparently legislature the former spe- cific limitations provided inadequate compensation for serv- ices of counsel and the court-appointed legislature accordingly authorized the court fix a fee appointing to which would be fair and reasonable for the services reasonably necessary the circumstances. It under seems to us that in applying elements statute two are involved: What services to the (1) defendant were to constitute reasonably necessary adequate “Assistance for his Defense ?” of Counsel What (2) money value to be the services ? placed upon so rendered Our statute no formula for prescribes determining character and extent of services but does required, provide services, for the standard determination the value of the i.e., the customary charge by attorneys Wisconsin for services. comparable
On this advances three appeal, Conway propositions, substance, that counsel’s deter (1) good-faith conclusive; mination of the services shall be necessary (2) e that the allowanc should be minimium-fee guided Bar; schedule that he was entitled (3) to quoted phrase from is borrowed the Sixth amendment to the States, although directly applicable constitution of the United constitution, to state. art. I of the Wisconsin provides Sec. enjoy right that accused shall “the to be heard himself and Although presumably power the state require counsel.” has the lawyers provide indigents required with the services without compensation, legislature has chosen compensate them and judicial long policy it has been the they state be com Carpenter pensated. County v. Dane (1859), 9 (*274), Wis. (*277). *5 allowance or disallowance each item in his state-
specific ment.
Determination Services Required. The character and extent of the services re- reasonably be must determined the basis of the circum- quired upon in which the stances defendant has found particular himself. not, accused, The court is because of the of the indigency be what services were niggardly determining reasonably hand, On the other services are required. unnecessary be for out of paid public treasury. Determination the character and extent of the services the careful reasonably necessary requires exercise of judg- trial, ment. the court fixes the attorney’s When fee after it has certain which counsel did advantages hindsight not have when he for the defense. All prepared practicing attorneys however, have shared the when experience, the time for arrived, a client has billing forgoing charges for time hope- in research and fully spent investigation on “thin leads” which turned out to be fruitless. This is one of the hazards The court profession. should consider the carefully which the judgment attorney exercised in what deciding useful, would be investigation preparation but the ulti- mate rests on the court and it responsibility is not bound by decision. The court attorney’s has the power duty to take consideration its into own observations of the trial and facts evidence. developed Schedule as a Guide.
Minimum-fee of minimum schedule fees of the State Bar or other bar associations constitutes only the collective judgment the committees or groups passed it upon as to a scale of fair for fees the types of services generally listed. They are some evidence relevant to the of a question reasonable charge services, but have no other force. legal *6 services, when based “. a for even . . lawyer’s charge the schedule, subject is always the recommended upon 2 reasonableness.” courts’ determination of for of the Bar the “In determining customary charges a services, a to consider similar it is for lawyer proper Association, but minimum fees Bar adopted by schedule of or thereby himself to be controlled no should lawyer permit the of his it as sole in amount guide to follow his determining 3 fee.” Services. Review the Allowance Made of for of only Conway’s ap- The record before us consists services, the the statements of and statement of plication former district and the remarks and attorneys present course, Beilfuss, of had in its decision. court making Judge trial. recollection of the his observation and benefit the trial before us. transcript We do not have the kind, it be good of this would think that matters We a record of time submitted has where practice, allowance upon but bases the judge where expended, or unnecessarily unpro- was that the time conclusion part his for reasons that record expended, judge ductively have more-specific We would preferred such conclusion. us, do consider we although statement the case before as reversal. the absence thereof ground rest that the must responsibility primarily It seems to us for review on that the test trial court and upon that the allowance the record demonstrates is whether appeal was unreasonable.4 clearly the court made by 249, 230, (2d) 10 Wis. 102 2 Lathrop v. Donohue (1960), 404. (2d) N. W. 3 (February, 1959), Wisconsin Bar Bulletin Supplement to 32 Ethics, 15, 12, 14, Fixing Canon pp. Professional Canons Amount of Fee. 14, 20, (1960), (2d) (2d) N. Blasi v. Wis. W. See Drafz court, construing (sec. 256.48), a similar statute in which this question that section “makes allowance of fees stated [for discretionary guardians ad with the trial court.” litem] The circuit court considered that this trial should have consumed weeks, trial, no more than five or 30 days sessions been six having held week. days Tested per against Bar minimum fees of trial of day for per $150 criminal cases and hour for consultation and per office $18 work, the allowance of $6,500 is sufficient cover the 30 trial, days of hours outside of trial. Mr. Conway indicated willingness per day for trial time accept $100 advised, hour for other work. We per are ex- $15 executive committee ample, Dane County has Association recommended to Dane county lawyers who be as counsel that may submit they bills on the *7 basis two thirds of the of normal fees. in- the Although the of defendant is not digency reason for reducing services, the of quality of certainty out payment of treasury that some public discount of the suggests rates of is reasonable. At a rate of charge trial per day for $100 work, $6,500 for other would cover the five $12 weeks of trial 292 hours outside plus of trial. We are unable to find clearly allowance unreasonable.
Disbursements. note, course, We that $6,500 allowed by circuit court was to intended cover reimbursement for expenses as well as for services. We have considered it as an allowance solely for fees we because are of the opinion that circuit court err in did failing to make a specific allowance of such separate disbursements as the court con- justified. The sidered disbursements claimed included rela- small for items tively photographs, copies reports, and items which we drawings, assume were obtained for de- monstrative purposes. Larger amounts were paid for prepar- certain and sketches well ing plats as as partial It transcripts. that the appears and sketches plats were actually used all by objection The chief to some the trial. court’s during parties that have been Mr. Conway items larger appears ex- to make the not advance permission did apply was inadvisable. than the expenditure rather that penditure, ex- allowance of automobile The does provide statute was mile. No amount at to exceed seven cents per not pense 5,066 claimed, were shows that miles the statement although this was mileage Undoubtedly large portion traveled. since the trial was of venue made necessary change Baraboo, Madison, from seat 43 miles at held office. Conway’s and the location of Sauk county so as allow the the order modify have decided to We to the disbursements claimed addition full amount of The circuit court was error allowed. not $6,500 already allowance. disbursements making specific separate not to have been considered improvident. Although do seem court, as for court- it would be good practice, suggested before sub- to obtain making counsel approval disbursements, and items such be might stantial properly a matter of if advance be as policy approval disallowed sum for obtained, note here a substantial automobile we included, allowable. travel was not though so as to the Court.—Order modified direct By payment $6,500 Conway, S. $7,620.25 Vaughn being compensa- *8 $1,120.25 for being tion services actual repayment modified, and, as so affirmed. disbursements took no J., part. Wilkie, I must respectfully dissent. (dissenting).
Hallows, J. for the attorneys After defense history underpaying long accused, 500, ch. Laws by of an indigent legislature 957.26, Stats., 1961, the compensation amended sec. section counsel, allow to compensation pursuant for court-appointed 608 256.49, 118, which ch.
to sec. was created Laws of 1957. by This section the court shall fix the amount of provides as it shall deem defines such com- to be “such as is pensation customarily charged by attorneys in this state for services.” The mandate was not comparable in and is not followed this case.
The federal constitutional of “Assistance of Counsel right Defense,” for his means no role counsel as subsidiary by in the must be majority opinion. phrase under- implied in its historical stood the common context law which accused, an denied rich or of counsel poor, right in a rule, criminal This case. statute changed England 1836, was our rejected federal and state constitutions. Today constitutional mandate includes the right of an accused in cases felony to have indigent assigned an experi- enced, and zealous competent, to attorney represent him. Such twin assignment required by principles justice under law and justice for the accused if equal those principles are mean more than empty to phrases our democracy. John- son v. United States D. 1940), C. 110 (App. Fed. 562. (2d) Likewise, the has a indigent accused right counsel on v. appeal. Douglas U. S. (1963), California Ct. 9 L. Sup. Ed. 811. The (2d) representation by counsel admits no court-appointed perfunctory performance of duty but demands the conscientious application of full effort, resourcefulness, and ability. counsel Assigned is not cast the role aof sympathetic spectator to watch the its side of the prosecution try case.
I do not subscribe presumption state has the power require lawyers to provide indigents with the re- quired service without compensation. Carpenter v. Dane County (1859), Wis. (*274), does not so hold and in fact held a liable for county the compensation of an appointed there was although no statute fixing liability services, upon such saying (p. : (*277))
609 “It seems and eminently just that the even in the absence all statutory provision imposing obliga- tion should an pay destitute crim- defending inal.” 256.49,
In Stats., construing the best guide sec. to the customary charge by attorneys the state for comparable is services the schedule of minimum fees of the State Bar of Wisconsin. The schedule should be this recognized court as prima reasonable. We relied on the schedule in facie Touchett v. E Z Paintr Corp. 479, Wis. (1961), (2d) 111 N. W. 419. In v. (2d) Lathrop Donohue (1960), 230, Wis. 404, 102 N. W. (2d) we (2d) out the pointed schedule as one of the worthwhile many activities of the and it was so referred to United States court in supreme Bar. affirming of the Lath Integration 820, v. rop Donohue U. S. (1961), Ct. Sup.
6 L. Ed. 1191. The schedule of (2d) minimum fees was the work of the initially committee economics of bar 24of composed well-known from all lawyers of the parts state. The board of governors of the State Bar it adopted State Bar $12,000 spent approximately publishing it of the distributing lawyers state. It is reported 23 local bar associations have adopted schedule which 4,084 members, active represented 5,220 or 83 of the percent in the state as lawyers 1960. See Elerbert L. June The President’s Terwilliger, 33 Wisconsin Bar Report, Bul letin 40. It (August, 1960), p. then find shocking schedule in the deprecated majority as opinion only con a collective stituting judgment committee which passed it. upon
In the introduction to the schedule the bar the use urges subject the schedule proscriptions Canon Professional Ethics as a realistic basis on which to render services. The Canons of Professional Ethics of American Bar Association were as rules of this adopted court in Rule 9
610 Bar Wisconsin. 273 Wis. the the State of
of Rules of xi, xx. 12 in : Canon pp. provides part fee, to con- it
“In the the is proper amount of determining and novelty and the sider : The time labor (1) required, and the skill requisite of the involved difficulty questions of cause; the whether the acceptance properly (2) conduct lawyer’s in the case will the preclude employment particular the trans- in to arise out of likely for others cases appearance action, and in there is a reasonable expectation which the loss of be or will involve employed, otherwise he would or in case particular other while employment employed clients; (3) customary charges with other antagonisms in services; Bar similar the amount involved (4) from and the benefits the client controversy resulting the the services; or of contingency certainty (5) and character of (6) the compensation; employment, an established and client. whether casual or for constant No one these considerations itself is are They controlling. real ascertaining mere value the service.” guides These are factors those substantially referred to and also 406, 190 Will approved Willing (1926), Wis. 602, N. W. Continental Co. v. Casualty Pogorzelski (1957), 275 Wis. 82 N. W. and Touchett v. E Z (2d) For Paintr each Corp., supra. discussion of and the factor see Anno. generally, Attorneys’ problem Compensation— Amount, R. 56 A. L. 13. (2d) these factors not to determine whether trial
Applying its but to fact court abused discretion determine the inde- under the to the thereof exception great-weight pendently rule as in Touchett stated clear-preponderance-of-the-evidence Z $6,500 E Paintr I must conclude is not Corp., supra, v. reasonable for counsel this case. The major- reasons that amount of money is sufficient at two thirds ity cover weeks of trial rate to five and 292 hours and somehow that was sufficient time at public preparation the defense it at trial of the expense present prepare murder We must recall the charge against indigent. Carpenter words of v. Dane Wis. County (1859), (*274), (*276): more inter- surely
“But citizens of are vitally ested in an innocent man from unmerited saving punishment than in the conviction one. a man too guilty Suppose poor to retain counsel to be an offense in- put upon trial for *11 life; his he liberty for constitution declares that volving shall to be and enjoy heard himself right counsel.”
We have no with two thirds of the quarrel taking as a for rate guide compensation for court-appointed counsel. as officers Lawyers of the court dedicated to administration of made justice have from time immemorial and will continue in the best tradition of the legal profession to sacrifices time in make of and aid of ability indigents. However, on oral Conway argument so is agreed. there a limit which the in its in- beyond public duty to fulfilling can or the digents expect lawyer any legal profession go. It is this and of concept recognition public duty of which have rights indigents adherents to the gained public- defender There is system. presently pending Congress Criminal Act of 1963 1057 & H. R. (S. whose 4816), Justice is to purpose provide adequate federal representation courts defendants with indigent charged felonies or mis- some and demeanors which sets the rate of compensation not exceed hour per private and attorneys $15 attorneys a bar furnished association or legal-aid society.
Counsel was because of his experience and skill in criminal matters and his competence to a represent person with murder. charged Being engaged trial daily for seven weeks a involved loss other employment he as could take time, other nor does during per
care of no business accumulated drain on the and diem reflect the charge physical nervous of a His lawyer. gross trial system income; law office his overhead of his maintaining during with a minor that time continued. His client was charged murder. The but against society transgression first-degree men was consolidated with the trials of two other Illinois case an im- officer. This was Wisconsin shooting police The murder defendant. case to and to the society portant the trial wide publicity and the attracted progress radio, news in the on daily were front-page papers, television. he bill seems to be objection
The main to Mr. Conway’s By hindsight and overtried the defense. overprepared the disallowance of over justifies theory, majority opinion fruitless and as half the work as because unnecessary one the hazards preparation one of profession. ones lawsuit as well as any many unimportant important turn which do not involves research and investigation perhaps an the client. In the defense of to be out advantageous court cannot felony, lawyer appointed by important into *12 client and in the interests of justice to his justice go how or One does know partly prepared. trial poorly is fruitless until the trial is much preparation going prove are not with more Lawyers gifted clairvoyance any over. than and should not be for the lack of it. judges penalized in the briefs the district estimated
We are told five weeks and he would call SO the trial would take some 55 witnesses and the trial took witnesses. He called seven case, its had the aid weeks. In prosecution preparing 1,254 which Crime hours Laboratory spent Wisconsin An the court has no staff attorney appointed by on the case. He must do the work himself. The of paid investigators. between the defense of an prosecution inequality a conversant with is source of concern those great indigent Accused, a See for the report by the problem. Equal Justice of the Association of the a Committee Special York Aid and Defender New and the National city Legal True, there Association some opposition (1959). the cost of counsel or assigned public-defender quarters the cost to the involved in this case was county system; great which, law, the had to entirely under our present assume. But isn’t it but part price democracy? trial court stated the trial should have taken no more counsel’s statement serv- than five weeks. Reconstructing $14,783. at bar the sum of two ices rates produces Taking time, the trial both trial and on sevenths off of preparation time, $10,560 leaves bill of statement of excessive court’s $4,000 majority more than allows. or approximately all which this has the factors court said Giving weight consideration, $6,500 taken I do not consider should be into fee the services rendered counsel and reasonable fair must dissent. respectfully joins to state I am authorized Dieteeich Justice this dissent.