In the aftermath of Arnold v. Kemp,
On remand, the Independence Circuit Court conducted a hеaring and determined that Arnold was entitled to $31,437.32 and Allen $42,143.67. The trial court ruled Independence County was primarily responsible for payment but the state was liable for reimbursement for all sums in excess of $7,798, as provided in Ark. Code Ann. § 16-91-109 (1987). The trial court rejected the argument of the state that it should have no liability to thе county because of an exemption in Ark. Code Ann. § 14-20-102 (Supp. 1991). The state has appealed and Arnold and Allen have cross appealed. The Arkansas Bar Association and the Arkansas Trial Lawyers Association have filed a brief amici curiae in support of the cross appeаl. For reasons to be discussed, we affirm the order on direct appeal as well as on cross appeal.
Direct Appeal
The state’s single point of error is that the trial court erred by interpreting Ark. Code Ann. § 14-20-102 (Supp. 1991) as having no effect upon the liability of the state for the payment of fees to attornеys to represent indigent defendants in criminal cases.
Section 14-20-102 authorizes any county to create a fund for the defense of indigent persons and to levy fees and make appropriations as needed for that purpose. Because Independence County established an indigent defense fund, the state contends it is not responsible for payment of any of the fees and expenses allowed by the trial court in this case, relying on subdivision (c) of § 14-20-102, which reads:
(c) The provisions of § 16-92-108 and other laws relating to the amount of attorney fees and costs that may be paid in the defense of indigents charged with criminal offenses and in the defense of persons against whom involuntary commitment proceedings are sought for insanity or alcoholism shall not be applicable in any county in which the quorum court establishes a fund under this section and levies additional costs or fees to finance such fund.
The circuit court, however, interpreted § 14-20-102(c) as previously allowing a county which had enacted an indigent defense fund to disregard the existing fee-cap and pay a public defender a larger fee, prompting the county to appoint a public defender, and presumably, encouraging attorneys to accept such positions. The state insists that interpretation is too narrow, that a reading of the full statute makes clear that regardless of whether a public defender has been established, an indigent defense fund may be used in any county to pay the fees of court аppointed counsel.
We need not address the state’s argument, other than to point out that the answer was provided in State v. Post,
This leaves us with no provisions requiring the сounty to pay defense attorney fees of counsel appointed to defend indigent defendants. . . . Payment of fees to attorneys representing indigents is a responsibility of the state which the legislature had delegated to the counties by statute. Since there is no statute delegating this duty to Independence County, the state is responsible for payment of [defense counsel’s] fees and expenses.
Post at 520-521.
While that holding emanated from a sharply divided court, it nonetheless resolves the issue now raised and requires that we affirm the trial court.
Cross Appeal
By cross appeal Arnold and Allen contend that the amounts awarded for their services to Susan Jernigan were erroneous under the facts of this case and laws of this state. They urge that the trial court erred by considering a lawyer’s obligation to provide pro bono services as a factor in setting the fees. The brief of the amici curiae advances the argument that the proper measure of compensation for attorneys ordered by the courts to represent indigent defendants is the fair market value of their services. The amici brief urges that “just compensation” means “full compensation.” Arkansas State Highway Commission v. Stupenti,
Thе record reflects that in the representation of Mrs. Jernigan, Allen expended 850 hours and Arnold 616.25. Allen’s annual gross receipts for the year 1991 were $63,000 less than the average for the three previous years and Arnold’s $52,000 less than the average for the two previous years. Allen customarily charges an hоurly fee ranging between $75 and $100 per hour. After hearing testimony from Allen and Arnold describing the impact of the Jernigan matter on their practice, the trial court heard testimony from several attorneys with a wide range of experience in criminal cases. William R. Wilson, Jr. testified he would not have taken the Jernigan case on an hourly rate, he would have charged a fee of $80,000. Bill W. Bristow testified that if he were taking the Jernigan case on a flat fee basis and the person had very little money he would want a $30,000 fee and $10,000 to $15,000 to hire experts and would bill more if the hours exceeded a certain amоunt. Phillip Farris testified he would not consider taking Mrs. Jernigan’s case for less than $25,000 attorney’s fee and $7,500 for experts, with another $10,000 if the case went to trial, explaining that he would charge a fee of $25,000 if the case were plea bargained and $35,000 if the case were tried. Roy Thomas testified concerning his experience in several criminal cases, that he spent a minimum of 300 to 400 hours preparing for trial in a capital murder case in Stone County at a probable cost of $25,000 based on overhead and lost income. He estimated “$2,000 to $3,000 of time invested in them even if they don’t go to trial.”
Gary Vinson testified he would want a fee of $25,000, conservatively, to defend Mrs. Jernigan, which was low because of her lack of funds, plus $5,000 to $10,000 for experts. John Norman Harkey said $10,000 to $15,000 would be required for experts and investigators and to properly prepare the Jernigan case for trial would require 400 plus hours. He wоuld charge a flat fee of $35,000 to defend the Jernigan case.
In making the allowances of $31,437.32 to Arnold and $42,143.67 to Allen, the trial court considered the following factors: the reputation of Messrs. Arnold and Allen in the community, their known abilities, the local fee rate of “roughly” $ 100 per hour, what the initial charge might bе for representation in a similar case, that the amount awarded would not fully compensate them, that it would be difficult, if not impossible, to determine what part of the investment in time was attributable to the defense of Mrs. Jernigan and what part was attributable to bringing to a head the issue of attorney fees for indigents and pioneering the way for other lawyers in the state; that lawyers within a community do have a certain amount of responsibility to the community and their profession to provide pro bono services.
We regard all those factors, and others that will doubtless emerge with time, as pertinent and material constructs in the determination of an appropriate fee for court appointed counsel. Others that come to mind include whether the lawyer’s efforts are essential and necessary to the defense. Time spent on theories that are unfounded in fact or law, or thоse which have been repeatedly rejected by appellate courts, are presumptively noncompensable, absent special circumstances. We recognize at the same time that our system abets claims of ineffective assistance against even the most cоnscientious practitioner so that counsel are constrained to develop a record with one eye on self defense and the other on client defense.
Appellees and amici point to language in the Arnold majority opinion that the time and services of an attorney аre property within Fifth Amendment protection, the taking of which is subject to just compensation. Certainly, the rationale of the majority opinion was clearly based on Due Process and Equal Protection foundations, but nothing in the opinion suggests that Arnold v. Kemp intended to substitute one extreme for anоther, that is, a statutory system that effectively confiscated a lawyer’s time and talent for a token consideration in exchange for one in which lawyers are compensated at a level commensurate with the prevailing charges to private clients. Indeed, the majority opinion in Arnоld makes that explicit:
In awarding fees to Messrs. Arnold and Allen for reasonably expended services, we do not mean that the trial court must simply award fees based on their customary hourly charges or fixed fees for services in criminal cases of this nature. To the contrary, the trial court should detеrmine fees that are considered “just.” In Chrisco v. Sun Indus., Inc.,304 Ark. 227 ,800 S.W. 2d 717 (1990), we recognized various factors to be considered by a trial court in making its decision, on an award of attorneys’ fees, including the experience and ability of the attorney, the time and labor required to perform the legal service prоperly, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, the time limitations imposed upon the client’s defense or by the circumstances, and the likelihood, if apparent to the court, that the acceptance of the particular employment will preclude other employment by the lawyer. [Our emphasis.]
Arnold, supra at 304-305.
The criteria mentioned in Chrisco v. Sun Indus., Inc.,
Nor does the majority opinion in Arnold tоuch on pro bono concerns. However, a review of recent cases from other jurisdictions provides a ready answer. One of the leading cases in this area is State ex rel. Stephan v. Smith,
In Jewell v. Maynard,
A fee for the defense of an indigent criminal defendant need not be equаl to that which an attorney would expect to receive from a paying client, but should strike a balance between conflicting interests which include the ethical obligation of a lawyer to make legal representation available, and the increasing burden on the legal profession to provide counsel to indigents. [Citations omitted.]
Guided by these principles, we cannot say that the trial court’s discretion was abused in this matter. It clearly gave careful reflection to the allowances and outlined the reasons. The amounts approximated $40 - $45 per hour and while that was roughly half of the amounts requested, it was not significantly counter to the bulk of the expert testimony. Assuming, we think correctly, that the amounts testified to by the expert witnesses contemplated a trial, the trial court could have considered a fee in the range of $30,000 or $35,000 on the one hand to $80,000 on the other. He in fact awarded a fee of around $70,000 for a case that was dismissed after Ms. Jernigan’s custodial statement was suppressed, for which cross-appellants can rightfully claim full credit.
In sum, we are not persuaded that the allowances fixed by the trial court were either confiscatory or unreasonable and that being so, no abuse of discretion occurred. The order is affirmed.