Conway v. Sauk County

• Decision Date: 02 April 1963
• Citation: 19 Wis.2d 599,120 N.W.2d 671
• Parties: Vaughn S. CONWAY, Appellant, v. SAUK COUNTY, Respondent. STATE of Wisconsin, Plaintiff, v. William WELTER, Defendant.
• Court: Wisconsin Supreme Court

Page 671

120 N.W.2d 671

19 Wis.2d 599

Vaughn S. CONWAY, Appellant, v. SAUK COUNTY, Respondent.

STATE of Wisconsin, Plaintiff, v. William WELTER, Defendant.

Supreme Court of Wisconsin.

April 2, 1963.

Vaughn S. Conway, Baraboo, in pro. per., for appellant.

Paul M. Newcomb, Sauk County Corp. Counsel, Baraboo, for respondent.

FAIRCHILD, Justice.

Statutory authority for payment of fees and disbursements to counsel appointed for an indigent defendant is found in sec. 957.26, Stats. That section formerly limited the compensation for services to $25 for each half day in court, $15 for each half day of preparation, not exceeding five days, and $15 for each half day attending at the taking of depositions. Ch. 500, Laws of 1961, effective September 30, 1961, amended this section, striking out the limits and the material portion now reads:

'The county shall pay the attorney so appointed such sum as the court shall order, pursuant to s. 256.49, as compensation * * * and his actual disbursements for necessary travel and other expense, automobile travel to be compensated at not over 7 cents a mile. * * *'

Sec. 256.49, Stats., reads in material part:

'* * * the court appointing the attorney shall, after the services of the attorney have been performed and the disbursements incurred, fix the amount of his compensation for the services and provide for the repayment of disbursements in such sum as the court shall deem proper, and which compensation shall be such as is customarily charged by attorneys in this state for comparable services.'

Apparently the legislature considered that the former specific limitations provided inadequate compensation for services of court-appointed counsel and the legislature accordingly authorized the appointing court to fix a fee which would be fair and reasonable for the services reasonably necessary under the circumstances. It seems to us that in applying the statute two elements are involved: (1) What services to the defendant were reasonably necessary to constitute adequate 'Assistance of Counsel for his defence?' ¹ (2) What money value is to be placed upon the services so rendered?

Our statute prescribes no formula for determining the character and extent of services required, but does provide a standard for the determination of the value of the services, i. e., the customary charge by attorneys in Wisconsin for comparable services.

On this appeal, Mr. Conway advances three propositions, in substance, (1) That appointed counsel's good-faith determination of the services necessary shall be conclusive; (2) That the allowance should be guided by the minimum-fee schedule of the state bar; and (3) That he was entitled to a specific allowance or disallowance of each item in his statement.

Determination of services required

The character and extent of the services reasonably required must be determined upon the basis of the circumstances in which the particular defendant has found himself. The court is not, because of the indigency of the accused, to be niggardly in determining what services were reasonably required. On the other hand, unnecessary services are not to be paid for out of the public treasury.

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.

Minimum-fee schedule as a guide

The schedule of minimum fees of the state bar or other bar associations constitutes only the collective judgment of the committees or groups that passed upon it as to a scale of fees generally fair for the types of services listed. They are some evidence relevant to the question of a reasonable charge for services, but have no other legal force.

'* * * a lawyer's charge for services, even when based upon the recommended schedule, is always subject to the court's determination of reasonableness.' ²

'In determining the customary charges of the Bar for similar services, it is proper for a lawyer to consider a schedule of minimum fees adopted by a Bar Association, but no lawyer should permit himself to be controlled thereby or to follow it as his sole guide in determining the amount of his fee.' ³

Review of the allowance made for services

The record before us consists only of Mr. Conway's application and statement of services, the statements of the present and former district attorneys and the remarks of the court in making its decision. Judge Beilfuss, of course, had the benefit of his observation and recollection of the trial. We do not have the transcript of the trial before us.

We think that in matters of this kind, it would be good practice, where the attorney has submitted a record of time expended, but where the judge bases the allowance upon a conclusion that part of the time was unnecessarily or unproductively expended, that the judge record his reasons for such conclusion. We would have preferred a more specific statement in the case before us, although we do not consider the absence thereof as ground for reversal.

It seems to us that the responsibility must rest primarily upon the trial court and that the proper test for review on appeal is whether the record demonstrates that the allowance made by the court was clearly unreasonable. ⁴

The circuit court considered that this trial should have consumed no more than five weeks, or 30 days of trial, sessions having been held six days per week. Tested against the state bar minimum fees of $150 per day for trial of criminal cases and $18 per hour for consultation and office work, the allowance of $6,500 is sufficient to cover the 30 days of trial, and 111 hours outside of trial. Mr. Conway indicated willingness to accept $100 per day for trial time and $15 per hour for other work. We are advised, for example, that the executive committee of the Dane County Bar Association has recommended to Dane county lawyers who may be appointed as counsel that they submit bills on the basis of two-thirds of the normal fees. Although the indigency of the defendant is not a proper reason for reducing the quality of the services, the certainty of payment out of the public treasury suggests that some discount of the rates of charge is reasonable. At a rate of $100 per day for trial and $12 for other work, $6,500 would cover the five weeks of trial plus 292 hours outside of trial. We are unable to find the allowance clearly unreasonable.

Disbursements

We note, of course, that the $6,500 allowed by the circuit court was intended to cover reimbursement for expenses as well as compensation for services. We have considered it as solely an allowance for fees because we are of the opinion that the circuit court did err in failing to make a specific separate allowance of such disbursements as the court considered justified. The disbursements claimed included relatively small items for photographs, copies of reports, drawings, and items which we assume were obtained for demonstrative purposes. Larger amounts were paid for preparing certain plats and sketches as well as partial transcripts. It appears that the plats and sketches were actually used by all parties during the trial. The court's chief objection to some of the larger items appears to have been that Mr. Conway did not apply in advance for permission to make the expenditure, rather than that the expenditure was inadvisable. The statute does provide for the allowance of automobile expense at not to exceed 7 cents per mile. No amount was claimed, although the statement shows that 5,066 miles were traveled. Undoubtedly a large portion of this mileage was made necessary by the change of venue since the trial was held at Madison, 43 miles from Baraboo, the county seat of Sauk county and the location of Mr. Conway's office.

We have decided to modify the order so as to allow the full amount of disbursements claimed in addition to the $6,500 already allowed. The circuit court was in error in not making a separate and specific allowance. The disbursements do not seem to have been considered improvident. Although it would be good practice, as suggested by the court, for court-appointed counsel to obtain approval before making substantial disbursements, and such items might properly be disallowed as a matter of policy if advance approval be not obtained, we note here that a substantial sum for automobile travel was not included, though allowable.

Order modified so as to direct payment of $7,620.25 to Vaughn S. Conway, $6,500 being compensation for services and $1,120.25 being repayment for actual disbursements, and as modified, affirmed.

WILKIE, J., not participating.

HALLOWS, Justice (dissenting).

I must respectfully dissent. After a long history of underpaying attorneys for the defense of an indigent accused, the legislature by ch. 500 of the Laws of 1961 amended sec. 957.26, the compensation section for court-appointed counsel, to allow compensation pursuant to sec. 256.49, Stats., which was created by ch. 118, Laws of 1957. This section provides the court shall fix the amount of compensation as it shall deem proper and defines such compensation to be 'such as is customarily charged by attorneys in the state for comparable services.'...