Ex Parte James A. Brown

• Decision Date: 21 June 2011
• Docket Number: No. 26991.,26991.
• Citation: 711 S.E.2d 899,393 S.C. 214
• Court: South Carolina Supreme Court
• Parties: Ex Parte James A. BROWN, Jr., Attorney, Appellant,In re State of South Carolina, Respondent,v.Alfonzo J. Howard, Defendant.

393 S.C. 214

711 S.E.2d 899

Ex Parte James A. BROWN, Jr., Attorney, Appellant,In re State of South Carolina, Respondent,

v.Alfonzo J. Howard, Defendant.

No. 26991.

Supreme Court of South Carolina.

Submitted Dec. 1, 2010.Decided June 21, 2011.

Derek J. Enderlin, of Greenville, and James Arthur Brown, Jr., of Beaufort, for Appellant.Attorney General Alan Wilson and Assistant Deputy Attorney General J. Emory Smith, Jr., both of Columbia, for Respondent.John S. Nichols and Blake A. Hewitt, both of Bluestein, Nichols, Thompson and Delgado, of Columbia, for Amicus Curiae the South Carolina Bar.Justice KITTREDGE.

In this direct appeal we review the trial court's denial of Appellant James A. Brown, Jr.'s request for an award of attorney's fees in excess of the $3,500 statutory limit in S.C.Code Ann. section 17–3–50 (2003). We find no abuse of discretion under the unique facts and circumstances presented and affirm.

During the pendency of the appeal, the Court accepted an amicus curiae brief on behalf of the South Carolina Bar concerning the potential constitutional implications arising from the court appointment of attorneys to represent indigent clients. We elect to address this matter of significant public interest. We hold today that the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney's services constitute property entitling the attorney to just compensation.

I.

Appellant was appointed on March 1, 2007, pursuant to Rule 608, SCACR, to represent Alfonzo J. Howard, an indigent. Howard was charged with multiple crimes, including first degree criminal sexual conduct, two counts of kidnapping, two counts of armed robbery, and possession of a weapon during the commission of a crime.

From the beginning, Appellant complained about the appointment to represent Howard, first to the circuit's chief administrative judge, Perry M. Buckner, and then to the trial judge, Carmen T. Mullen. Appellant asked to be relieved as counsel, stating that his obligations to an appointed capital case were taking up substantial amounts of time. Judge Buckner's involvement was minimal, as he refused to relieve Appellant, noting that Appellant had not been denied payment. Appellant even filed a motion to “halt prosecution.”

Appellant wrote the trial judge, Judge Mullen, stating, “[T]he failure to [exceed the fee cap] now leaves me with no choice but to discontinue working on [Howard's case].” Judge Mullen indicated that she would consider awarding attorney's fees beyond the “cap” ($3,500) after trial, upon submission of affidavits as to time, hourly rates, and overhead. She stated, “I think it's best to do after the trial is over, so we know exactly how much time has, in fact been expended....”

Judge Mullen's preferred timeline did not suit Appellant, however. At a pretrial hearing, the following exchange took place:

Appellant: Well, Your Honor, I respectfully no longer desire to do any work in this case, and I'll stop.

Court: Well, respectfully, Mr. Brown, that's not your choice.

Appellant: I'm not doing anymore work, I'm sorry.

Court: Mr. Brown—

Appellant: I'm not going to do anymore work.

Court:—if you're going to speak to the Court, you're going to stand up.

.... Court:—Mr. Brown, stop. Sir, I'm going to repeat something to you .... Respectfully sir you are going to continue on this case.

After the judge explained her decision and began to continue with the hearing, Brown again refused to move forward on the case:

Appellant: Your Honor, I'm not going to proceed on these motions. I move to withdraw.

Court: Respectfully, I'm denying your motion to withdraw ....

....

Court: Mr. Brown, you are an officer of this Court, sir. I am telling you that you are going forward. I am ordering you to go forward.

Appellant: I can't—

Court: You have one choice, as you understand—

Appellant: I cannot do it.

Court:—I can hold you in contempt.

Appellant: I just can't.

....

Court: Sir, you're gonna have two choices right now. You're either going to go forward or I'm going to take you into custody. One of two things, that's what we're doing here, Mr. Brown.

Appellant: I will say this, I'm not going to be able to go forward.

...

Court: This Court is telling you to go forward

....

The charges against Howard proceeded to trial. During the trial, Appellant's belligerent unwillingness to comply with the court's order continued:

Appellant: I'm going to ask to withdraw. I cannot be an effective lawyer for my client.

Court: Motion denied.

Appellant: I cannot go forward.... I cannot go forward.... I cannot go forward.

The trial court, displaying remarkable patience, only threatened Appellant with contempt and instructed Appellant to proceed. Appellant then invoked his right to counsel. The trial against Howard was briefly continued to allow Appellant's attorney to appear. Addressing Appellant's attorney, Judge Mullen said,

[W]hat I can't have ... is when I rule against [Appellant] [he is] saying he is going to withdraw as counsel. [Appellant has] done that three times, and he's sat down and refused to proceed with the case. That is simply not professional. It is not consistent with his oath.

....

[Appellant] has consistently refused at different points throughout the pre-hearing trial and now during the trial of this case to continue and has sat down....

After consulting with his attorney, Appellant finally decided to continue with representation of the indigent defendant.

Judge Mullen awarded $17,268.03 as costs for investigative work and expert fees, which was substantially in excess of the statutory cap of $500. S.C.Code Ann. § 17–3–50(B). However, Judge Mullen denied Appellant's motion to award attorney's fees in excess of the statutory amount, $3,500. § 17–3–50(A). The sole basis for denying Appellant an award of fees in excess of the statutory cap was his unprofessional conduct. Judge Mullen stated:

Because of Mr. Brown's actions and antics during the trial of this matter, I find his efforts do not demand nor justify exceeding the statutory maximum fee of $3,500 as provided by our legislature, and therefore, order attorney's fees of $3,500 to be paid to Mr. Brown for his services in this case.

... While I should have held Mr. Brown in contempt of Court for his unprofessional behavior-this Court knows all too well that to do so would require at the least, a mistrial, which would be unfair to both the Defendant and the victims.

II.

Section 17–3–50 provides:

(A) When private counsel is appointed pursuant to this chapter, he must be paid a reasonable fee to be determined on the basis of forty dollars an hour for time spent out of court and sixty dollars an hour for time spent in court. The same hourly rates apply in post-conviction proceedings. Compensation may not exceed three thousand five hundred dollars in a case in which one or more felonies is charged and one thousand dollars in a case in which only misdemeanors are charged. Compensation must be paid from funds available to the Office of Indigent Defense for the defense of indigents represented by court-appointed, private counsel. The same basis must be employed to determine the value of services provided by the office of the public defender for purposes of Section 17–3–40.

(B) Upon a finding in ex parte proceedings that investigative, expert, or other services are reasonably necessary for the representation of the defendant, the court shall authorize the defendant's attorney to obtain such services on behalf of the defendant and shall order the payment, from funds available to the Office of Indigent Defense, of fees and expenses not to exceed five hundred dollars as the court considers appropriate.

(C) Payment in excess of the hourly rates and limits in subsection (A) or (B) is authorized only if the court certifies, in a written order with specific findings of fact, that payment in excess of the rates is necessary to provide compensation adequate to ensure effective assistance of counsel and payment in excess of the limit is appropriate because the services provided were reasonably and necessarily incurred.

(Emphasis added).

An award of attorney's fees in excess of the section 17–3–50 statutory cap is “within the sound discretion of the trial judge.” Bailey v. State, 309 S.C. 455, 464, 424 S.E.2d 503, 508 (1992). An abuse of discretion occurs when the ruling lacks evidentiary support or is controlled by an error of law. Patel v. Patel, 359 S.C. 515, 529, 599 S.E.2d 114, 121 (2004).

Appellant presents the issue as one of law: may a trial court properly deny a request to exceed the statutory cap for attorney's fees based on the attorney's unprofessional conduct? We answer that question “yes” under the unique and compelling circumstances presented. Given the egregious level of Appellant's inexcusable conduct and persistent disregard of the trial court's orders, we find the trial court did not abuse its discretion in refusing to award fees in excess of the statutory cap.

III.

The South Carolina Bar appears Amicus Curiae. The Bar contends that the appointment of attorneys to represent indigent litigants implicates the Takings Clause of the Fifth Amendment to the United States Constitution. See U.S. Const. amend. V (“[N]or shall private property be taken for public use without just compensation.”).¹ We agree and hold today that the Fifth Amendment Takings Clause is implicated when an attorney is appointed to represent an indigent litigant. In such circumstances, the attorney's services constitute property entitling the attorney to just compensation.

Our willingness to consider the Bar's request and our ruling today in no manner changes the nature of the practice of law in this state. Our holding is a narrow one, limited to an attorney's constitutional entitlement to compensation in appointed cases. We continue to adhere to the view that the...