Gregory A. HULSE, Plaintiff, v. The Honorable Van WIFVAT, Judge of the Iowa District Court for Dallas County, Defendant.
No. 64681.
Supreme Court of Iowa.
June 17, 1981.
306 N.W.2d 707
Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and Alan Shirley, Dallas County Atty., for defendant.
McCORMICK, Justice.
In this certiorari case we must interpret
In relevant part,
An attorney appointed by the court to represent any person charged with a crime in this state shall be entitled to a reasonable compensation which shall be the ordinary and customary charges for like services in the community to be decided in each case by a judge of the district court, including such sum or sums as the court may determine are necessary for investigation in the interests of justice .... Only one attorney fee shall be so awarded in any one case except that in class “A” felony cases, two may be authorized.
We have not previously interpreted
Before January 1, 1978, the governing statute was
In his application for fees, plaintiff itemized 494.9 hours of his own time on the case and also requested compensation for 58.6 hours expended by his partner, 221 hours expended by an associate and 14 hours expended by a law clerk. He also sought reimbursement of $2,179.43 in expenses.
Plaintiff and several other attorneys testified in two hearings on the fee application. Testimony was given about plaintiff‘s experience and ability, the nature and complexity of the case, trial preparation and strategy, prevailing charges for similar defense work for nonindigents, and other matters which plaintiff and the county considered relevant on the compensation issue. In ruling upon plaintiff‘s application, the district court interpreted “ordinary and customary charges for like services in the community,” in
Plaintiff initially contends the court misinterpreted
This is an issue of law, not of discretion. Applying the correct legal standard, a court has broad discretion in determining attorney fees. See Soldat, 283 N.W.2d at 499. However, ascertaining the correct legal standard is a matter of law. See State v. Lindsey, 302 N.W.2d 98, 101-02 (Iowa 1981).
Two elements inhere in any standard providing for reasonable attorney fees. Both the necessity and valuation of the services must be determined. The services must have been reasonably necessary and the valuation must be reasonable in amount. See In re Estate of Myers, 269 N.W.2d 127, 129 (Iowa 1978) (“the burden is on the applicant for fees to prove the services were reasonably necessary and the charges are reasonable in amount“).
A. Reasonable necessity. In Conway v. Sauk County, 19 Wis.2d 599, 604, 120 N.W.2d 671, 674-75 (1963), the court described the court‘s task in determining what services are reasonably necessary:
Determination of the character and extent of the services reasonably necessary requires the careful exercise of judgment. When the court fixes the attorney‘s fee after trial, it has certain advantages of hindsight which counsel did not have when he prepared for the defense. All practicing attorneys have shared the experience, however, when the time for billing a client has arrived, of foregoing charges for time hopefully spent in research and investigation on “thin leads” which turned out to be fruitless. This is one of the hazards of the profession. The court should carefully consider the judgment which the attorney exercised in deciding what investigation and preparation would be useful, but the ultimate responsibility rests on the court and it is not bound by the attorney‘s decision. The court has the power and duty to take into consideration its own observations of the trial and the facts developed by the evidence.
In a later Wisconsin case the court noted:
Every attorney knows there is no limit to how much preparation one can give a
lawsuit, but defense counsel must be practical and use good judgment. In such matters he proceeds at his peril. State v. Kenney, 24 Wis.2d 172, 179-80, 128 N.W.2d 450, 454 (1964).
The district court must exercise independent judgment in determining the extent of reasonably necessary services. See In re Condemnation of Lands, 261 Iowa 146, 153, 153 N.W.2d 706, 710 (1967) (“But counsels’ estimate of the reasonable number of hours necessary for preparation to satisfy their own professional ethics, however commendable, cannot bind the court.“). See also Simon v. Bittner, 288 N.W.2d 549, 552 (Iowa 1980) (“In endeavoring to ascertain a reasonable legal fee, relevant factors include the time necessarily spent by the attorney ....“). In exercising its independent judgment, however, the court must put itself in the position of a reasonable attorney at the time the services were undertaken. The court must recognize the high standard of diligence and preparation which is demanded of counsel in criminal cases and all of the relevant facts and circumstances in the individual case.
This element in determining reasonable compensation was unaffected by the enactment of
Of the 494.9 hours of his own services itemized by plaintiff, 377.3 hours were consumed in out-of-court research and preparation and the remaining 117.6 hours were spent in court. The court approved 250 hours for preparation and research and converted the court time to twelve and one-half days of trial. Among other grounds for its determination, the court disagreed with counsel concerning the necessity of certain investigative activities and believed that some portion of the time was devoted to plaintiff‘s self-education.
We hold that the court employed the correct legal standard and did not abuse its discretion in determining the extent of plaintiff‘s services which were reasonably necessary.
B. Valuation. Under former
We separately examine the court‘s interpretation of the statute and its valuation of compensation. We first look at the background against which
Before 1959, fees were established by statute. See, e. g.,
This court said in Anderson, 164 N.W.2d at 132, that
These statements were not reiterated in Furey. In that case the court held that an attorney could not bring an independent action against the county to recover compensation under the statute. Requests for compensation were to be made by application to the court in the criminal case. 208 N.W.2d at 18. In specifying the proper procedure, the court said:
The procedure would be simplified, and a better record made for review, if the attorney would also attach a supporting affidavit itemizing time spent and stating facts relevant to the difficulty and importance of the issues involved in the case, the responsibility assumed, his experience and ability, and any other factors important in determining reasonable compensation. Id.
The court cited In re Condemnation of Lands, which listed relevant factors for assessing reasonable compensation in eminent domain cases. 261 Iowa at 152, 153 N.W.2d at 710.
This was the state of the law when
It is significant that in Parrish the court recognized “the customary charge for similar services” as an included factor. 262 N.W.2d at 285. Later, in Soldat, 283 N.W.2d at 498, the court rejected a contention that
We now must determine the new valuation standard established in
In reaching this conclusion, we do not minimize an attorney‘s ethical obligation to make financial sacrifices in representing
If the legislature intended only to change
Moreover, the new language refers to ordinary and customary charges for like services in the community. It does not refer to ordinary and customary fee allowances for similar indigent services. Court-appointment fees are set by the court; they are not fees which are “charged” by counsel. The language plainly refers to fees charged to nonindigent clients in similar litigation.
We thus hold that plaintiff is entitled to full compensation for his reasonably necessary services. The district court erred in holding otherwise. As a result, the method of valuation employed by the court was also flawed.
Although we recognize the convenience of a fixed rate of compensation based on time expended, a rigid adherence to that method of valuation ignores the other factors which must be considered in determining reasonable compensation. True uniformity in compensation can be achieved only when all of the variables affecting reasonableness are considered.
The factors delineated in Parrish are equally relevant under
We therefore hold that, in addition to the factors delineated in Parrish, the court may consider the certainty of payment as an additional factor. This, however, is just one factor among those which are relevant and should not result, as it did in Wisconsin, in a predetermined percentage discount from what otherwise would be full compensation. In weighing all relevant factors to determine reasonable compensation, the court should simply take into consideration, along with the other factors, the assurance that the fee ordered by the court will be paid.
Upon remand, the court shall consider certainty of payment and all of the Parrish factors in determining an amount which will fully compensate plaintiff for his services as required by
II. The request for compensation for the services of others. Plaintiff also contends the district court erred in denying compensation for the services of his law partner, associate, and law clerk. The issue of compensation for legal services of other persons is governed by the statute.
In the hearing on his fee application plaintiff testified:
Q. At one time prior to trial, did you ask the court for the court to appoint an additional attorney to help you in this
case? A. I never made written application for another attorney to assist; however, the matter was discussed and it was the court‘s feeling that it would rather have me do it myself. I think mainly for the reason to hold down further expenses that would come out of this particular trial.
No application for appointment of a second attorney was made. Therefore we have no ruling to review on that issue. We have no occasion to decide whether the court would have abused its discretion in refusing to provide assistance which it was not formally requested to give.
Thus plaintiff obtained legal assistance from other persons without court authority to do so. The statute limits compensation to the services of one attorney unless, in a class “A” felony case, a second attorney is appointed. The issue is not whether the additional services in this case were necessary and valuable but whether they are compensable under the statute. Because plaintiff did not obtain advance authorization from the court for the assistance of a second attorney, we hold that none of the additional services are compensable. See United States v. Nakamura, 577 F.2d 485, 488 (9th Cir. 1978); United States v. Gast, 297 F.Supp. 620, 622 (D.Del.1969); United States v. Naples, 266 F.Supp. 608, 609 (D.D.C.1967); People v. Elliot, 98 Misc.2d 424, 428-29, 413 N.Y.S.2d 1001, 1006 (1979). The statute in People v. Atkinson, 50 Ill.App.3d 860, 8 Ill.Dec. 932, 366 N.E.2d 94 (1977), did not impose a limitation like that in
The court did not err in refusing to allow compensation for the legal services of persons other than plaintiff.
III. Problems inherent in the present fee system. The right of indigents to representation at public expense is a matter of constitutional mandate. Providing counsel under
Now the legislature has provided in
We have recognized that the burden of indigent criminal defense work falls upon a small segment of the bar, rather than all lawyers, as was originally intended. Soldat, 283 N.W.2d at 500. Demands of constitutional and statutory law have vastly increased the difficulty and complexity of criminal cases. Questions of effectiveness of counsel are common. Lawyers must make special efforts to achieve the level of ability which is necessary to provide the requisite standard of representation. These efforts involve substantial investments of time, expense, education and experience.
The legislature has provided boards of supervisors with an alternative to the court-appointment system. Under
Other alternatives and recommendations for improvement of the present system of providing indigent defense services in Iowa are discussed in Indigent Defense in Iowa (1980), a study report of the Iowa Crime Commission. These proposals deserve serious consideration by all persons who are concerned with the cost-effective delivery of these constitutionally mandated legal services.
We sustain the writ of certiorari in the present action and remand the case to the district court for additional proceedings in accordance with this opinion.
WRIT SUSTAINED; REMANDED.
All justices concur except LeGRAND, HARRIS, and McGIVERIN, JJ., who dissent, and REYNOLDSON, C. J., who takes no part.
LeGRAND, Justice (dissenting).
I dissent from Division I-B of the court‘s opinion and from the result reached there. I believe the writ should be annulled.
As recently as 1980, we approved EC-2-27 as part of the Code of Professional Responsibility. It provides in part:
The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services.
Until today lawyers representing indigents have done so at personal financial sacrifice in recognition of the professional obligation they had assumed. In recent times this has been discussed in a number of decisions, including Soldat v. District Court, 283 N.W.2d 497 (Iowa 1979); Parrish v. Denato, 262 N.W.2d 281 (Iowa 1978); Furey v. Crawford County, 208 N.W.2d 15 (Iowa 1973); Woodbury County v. Anderson, 164 N.W.2d 129 (Iowa 1969). These cases were all decided under our law as it was prior to January 1, 1978, when
The majority says the statute entitles lawyers to “full compensation” based on fees charged when privately employed by non-indigent clients in criminal matters. Thus history, tradition, personal obligation, and professional duty have all taken flight in the face of this provision. I disagree. I can find no legislative intent to make such sweeping, dramatic, and revolutionary changes. Neither the language of the statute nor the majority‘s rationale vindicates the result reached.
In the last analysis, the resolution of this case depends on our construction of the term “like services” as used in the statute. I agree with the trial court that the language means services rendered to indigent defendants pursuant to court appointment.
Several circumstances point to this conclusion. First, it is difficult to believe the legislature intended, in such cursory fashion, to cast aside the long tradition and history of our profession and the obligation which every lawyer still assumes upon his or her admission to the bar. Next, the overwhelming majority of criminal cases are defended by court appointed attorneys. It is impossible to establish a standard of “ordinary and customary” charges from the isolated cases taken on private employment.
In Parrish we said:
We urge trial courts to take a fresh look at the problem of fixing compensation for attorneys for services rendered in representing indigents in criminal matters. This court is aware of the problem facing trial judges in this respect and of the possibility of claims being made for hours spent by an attorney in achieving an education in criminal law at public expense. Nevertheless, there should be some uniformity throughout the state of the amount of compensation paid at public expense to attorneys of like ability for services performed under the same or similar circumstances in representing indigent defendants in criminal matters. 262 N.W.2d at 287.
Later in Soldat, this appears in 283 N.W.2d at 499:
The court has broad discretion in fixing fees. Parrish v. Denato, 262 N.W.2d at 284. This poses both advantages and dangers. On this subject we quote from the ABA Standard Relating to Providing Defense Services, commentary to § 2.4(a) at 31 (1967):
The advantage in giving freedom to the court to set the fee is the opportunity this provides for recognition of the variation in the true value of the services rendered according to the complexity and intricacy of each particular case. On the other hand, the greater such freedom, the greater is the risk of inequalities in the compensation of different lawyers who provide essentially the same services. It is most important to the vitality of the system that the public be confident that its resources are not being distributed with excessive liberality.
We noted this need for uniformity in Parrish v. Denato, 262 N.W.2d at 287, and, earlier, in Furey v. Crawford County, 208 N.W.2d at 18, we suggested a procedure designed to avoid inequality in fee allowances.
As shown by the above quotation from Soldat, this has been a matter of enough significance that it warranted attention by the American Bar Association in adopting standards relating to defense services. It also compelled our attention in several of the cases already mentioned. The majority dismisses this by saying it was “already the law.” Not so. It was suggested as the proper standard; but, needless to say, our suggestions are not invariably followed.
The Wisconsin Supreme Court in considering a statute almost identical to ours, reached what I believe is the correct result in State v. Sidney, 66 Wis.2d 602, 225 N.W.2d 438, 442 (1975).
There the court said:
[We have] previously approved as a general policy that all legal work performed for indigent criminal defendants should be at a figure per hour that is generally one-third below the prevailing rate charged for services to nonindigent clients. This is based on the fact of certainty of payment from the public treasury plus the further fact that legal work of this nature is part of the general obligation on the part of all lawyers to see that justice is done in our criminal courts.
It is unfortunate the majority interprets the statute as repudiating the long and honored tradition of the profession by relieving lawyers of any financial obligation in rendering assistance to those accused of a crime. It is ironic, too, that the majority exhorts more lawyers to accept the “burden” of representing indigents. What burden? Representing indigents will now be simply another piece of profitable law business.
HARRIS and McGIVERIN, JJ., join this dissent.