Baer v. O'Keefe
| Decision Date | 21 November 1975 |
| Docket Number | No. 9151,9151 |
| Citation | 235 N.W.2d 885 |
| Parties | Richard B. BAER, Petitioner, v. James H. O'KEEFE, Respondent. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
Considering that federal law has placed limits on the allowance of fees and costs, that approval was not secured prior to the employment of an investigator, that almost all of the attorney's time was spent in preparation rather than in the actual trial of the case, and that the itemization of time spent in research and conferences lacked specificity, the trial court's reduction of the fees and costs requested by appointed counsel for an indigent was not an abuse of discretion, and the fees and costs that it permitted were reasonable.
Irvin B. Nodland, Bismarck, for petitioner.
James H. O'Keefe, District Judge, Grafton; Allen I Olson, Atty. Gen., and Calvin N. Rolfson, Asst. Atty. Gen., Bismarck; and Robert N. Lee, State's Atty., Cavalier, for respondent; argued by Judge O'Keefe, Mr. Olson, and Mr. Lee.
In this case Richard B. Baer, an attorney admitted to practice law in all the courts of this state and possessed of a current license to practice law in this state, seeks a supervisory writ from this court wherein he, in effect, asks this court to require the Honorable James H. O'Keefe, one of the District Judges in and for the Second Judicial District, to approve attorney fees for services which he had rendered and costs he had expended in conjunction with the defense of Donald W. Shepard who was charged with four counts of burglary in the District Court of Pembina County.
The application for the writ arises out of the fact that Mr. Baer submitted a bill for service and costs in conjunction with Shepard's defense in the amount of $1,496.34 which Judge O'Keefe approved only in the sum of $821.55.
At the hearing on the order to show cause issued by this court, Judge O'Keefe, arguing on his own behalf, asserted that the amount of fees and costs to be allowed in the case of the appointment of counsel for an indigent defendant is a matter of judicial discretion. In support of this position, he urges us to consider the text used by the National College of the State Judiciary at its summer sessions in 1975 entitled Judicial Discretion. He asserts that this text describes three categories of judicial discretion: (1) where the trial judge's discretion is total (which he does not favor), (2) where the trial judge's discretion is presumed correct and is sustained unless found to constitute an abuse of discretion (which he favors), and (3) where the trial judge's discretion is severely limited in which case the appellate court substitutes its judgment for the judgment of the trial court (which he does not favor).
He cites no authority supporting his preference involving attorney fees and costs allowed appointed counsel in cases involving the defense of indigents.
He refers our court to the statute which he believes to support him, namely, Section 29--07--01.1, N.D.C.C.
The pertinent part thereof reads: 'Lawyers appointed to represent needy persons shall be compensated at a reasonable rate to be determined by the court.'
In his letter of April 9, 1975, to Mr. Baer indicating that he could not approve the bill as submitted, Judge O'Keefe said: 'I would like to accommodate you and have no doubt that were this a private retainer that the bill would be fully justified.' 1
In support of his position that fees and costs allowed counsel in the defense of indigents may be limited, Judge O'Keefe refers us to the federal guidelines contained in 18 U.S.C. § 3006A.
In approving attorney fees in the amount of $700.00, phone calls in the amount of $46.55, and attorney's mileage and expenses in the amount of $75.00, or a total bill of $821.55, Judge O'Keefe said that under the guidelines adopted by the United States District Court for North Dakota as of May 1, 1973, attorney fees in a case disposed of without trial are limited to $175.00. An examination of 18 U.S.C.A. § 3006A discloses that the Code is more liberal than the U.S. District Court Rule.
'(d) Payment for representation.--
'(1) Hourly rate.--Any attorney appointed pursuant to this section or a bar association or legal aid agency or community defendant organization which has provided the appointed attorney shall, at the conclusion of the representation or any segment thereof, be compensated at a rate not exceeding $30 per hour for time expended in court or before a United States magistrate and $20 per hour for time reasonably expended out of court, or such other hourly rate, fixed by the Judicial Council of the Circuit, not to exceed the minimum hourly scale established by a bar association for similar services rendered in the district. Such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the United States magistrate or the court.
'(2) Maximum amounts.--For representation of a defendant before the United States magistrate or the district court, or both, the compensation to be paid to an attorney or to a har association or legal aid agency or community defender organization shall not exceed $1,000 for each attorney in a case in which one or more felonies are charged, and $400 for each attorney in a case in which only misdemeanors are charged. For representation of a defendant in an appellate court, the compensation to be paid to an attorney or to a bar association or legal aid agency or community defender organization shall not exceed $1,000 for each attorney in each court. For representation in connection with a post-trial motion made after the entry of judgment or in a probation revocation proceeding or for representation provided under subsection (g) the compensation shall not exceed $250 for each attorney in each proceeding in each court.
'(3) Waiving maximum amounts.-- Payment in excess of any maximum amount provided in paragraph (2) of this subsection may be made for extended or complex representation whenever the court in which the representation was rendered, or the United States magistrate if the representation was furnished exclusively before him, certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.
* * *'
'(e) Services other than counsel.--
'(1) Upon request.--Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.
'(2) Without prior request.--Counsel appointed under this section may obtain, subject to later review, investigative, expert, or other services without prior authorization if necessary for an adequate defense. The total cost of services obtained without prior authorization may not exceed $150 and expenses reasonably incurred.
'(3) Maximum amounts.--Compensation to be paid to a person for services rendered by him to a person under this subsection, or to be paid to an organization for services rendered by an employee thereof, shall not exceed $300, exclusive of reimbursement for expenses reasonably incurred, unless payment in excess of that limit is certified by the court, or by the United States magistrate if the services were rendered in connection with a case disposed of entirely before him, as necessary to provide fair compensation for services of an unusual character or duration, and the amount of the excess payment is approved by the chief judge of the circuit.
18 U.S.C.A. § 3006A.
Mr. Baer submitted a bill as follows
"out of court time 44 hrs 25 mins = $ 887.50
in court time 1 hr = 30.00
"misc phone calls = 46.55
copies = 4.00
investigator time = 363.00
investigator mileage and expenses 90.29
attorneys mileage and expenses 75.00
(see attached voucher)
---------
"TOTAL DUE $1496.34"
Mr. Baer submitted along with his claim voucher an itemization of the time spent on the case. 2 The itemization lacks specificity.
Counsel for Mr. Baer stresses the following: Defendant Shepard was charged with four counts of burglary; the preliminary hearing was held at which he was represented by other counsel; Shepard was then recharged and informed he was subject to the provisions of the Habitual Criminal Act, having been convicted on seventeen prior occasions of felonies; an effort was then made by the Honorable Ray Friederich, a Judge of the Second Judicial District, to find counsel for Shepard in three counties but was unable to find experienced counsel who would accept the assignment in those counties; Judge Friederich then called Mr. Baer on the telephone and asked him if he...
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