State v. Robinson

• Decision Date: 31 August 1983
• Docket Number: No. 82-089,82-089
• Citation: 465 A.2d 1214,123 N.H. 665
• Parties: The STATE of New Hampshire v. Mary A. ROBINSON.
• Court: New Hampshire Supreme Court

Page 1214

465 A.2d 1214

123 N.H. 665

The STATE of New Hampshire v. Mary A. ROBINSON.

No. 82-089.

Supreme Court of New Hampshire.

Aug. 31, 1983.

Gregory H. Smith, Atty. Gen. (Peter W. Mosseau, Asst. Atty. Gen., on the brief, and Donald J. Perrault, Asst. Atty. Gen., orally), for the State.

Kahn, Brown, Bruno & Durmer, Nashua (Kenneth M. Brown, Nashua, on the brief and orally), for defendant.

BATCHELDER, Justice.

This appeal challenges the Trial Court's (Goode, J.) award of attorney's fees and costs associated with the representation of an indigent defendant on a misdemeanor charge. For the reasons set forth, we remand the case for redetermination of costs and fees.

In June 1981, the Superior Court (DiClerico, J.) appointed Attorney Kris Durmer to represent an indigent defendant, Mary A. Robinson, who had been charged with misdemeanor theft. The defendant was tried by a jury, convicted, and sentenced to the Hillsborough County House of Correction for thirty days. The case was appealed to this court, and conviction was affirmed. State v. Robinson, 123 N.H. 532, 465 A.2d 1201 (1983).

At the time of Attorney Durmer's appointment, compensation paid to attorneys appointed to represent indigent defendants was governed by Superior Court Rule 104, as amended by a supreme court order which became effective May 1, 1981. In June 1982, Supreme Court Rule 47 became effective and now governs compensation to be paid to attorneys representing indigent defendants. Superior Court Rule 104, as amended, set forth the following compensation schedule: out-of-court preparation was to be compensated at an hourly rate of twenty dollars, and time spent in court was compensated at thirty dollars per hour; however, the maximum fee for out-of-court preparation was limited to twenty-five dollars per hour, and the maximum fee for in-court time was thirty-five dollars per hour, with a maximum of $200 per day. The supreme court order amending Superior Court Rule 104 provided that the $500 maximum fee for misdemeanor cases "shall not be exceeded."

Accordingly, the defendant's attorney in this case was limited to a maximum fee of $500. Superior Court Rule 104 also provided that investigative, expert, or other necessary services could be compensated based upon a superior court judge's finding of necessity and reasonableness. When Attorney Durmer was appointed, pursuant to this provision, the court authorized $200 of expenses to be incurred by the defense in deposing the State's key witness. Cf. State v. Shute, 122 N.H. 498, 505-06, 446 A.2d 1162, 1166-67 (1982) (finding of no "extraordinary circumstances" justifying award in excess of $300 for compensation of expert witness upheld on appeal).

On December 15, 1981, in a timely manner after the trial and sentencing, Attorney Durmer submitted to the court an itemized bill in the amount of $1,694.38, which consisted of $1,265 of legal fees calculated on the basis of twenty dollars per hour for out-of-court time and thirty dollars per hour for in-court time, and $429.38 for expenses associated with the case. On December 22, 1981, the trial court entered an order allowing only $500 of the aforementioned total bill. On January 29, 1982, following a hearing on the defendant's motion to reconsider the award of attorney's fees and costs, the trial court modified the award so as to include the $200 expense allowance originally approved for the cost of deposing the State's key witness, but refused to increase the award for attorney's fees. Thus, the attorney was awarded $700, in total, for fees and expenses.

The attorney appealed this award in the name of the defendant. The attorney contends that the trial judge erred in denying attorney's fees in excess of $500; he argues that the maximum fee of $500 is an arbitrary limit which denies the defendant the right to effective assistance of counsel, as well as violates a defense attorney's rights of due process and equal protection.

At the outset, we note that there is a distinction under the indigent defense compensation rule between expenses associated with litigation, which may be compensated upon a finding of reasonableness and necessity, and legal fees which are limited to the maximum amounts set forth in the rule. Legal fees, to which the maximum figures apply, represent compensation paid to an attorney for the professional services rendered, both in court and out of court, in preparing for the defense of the indigent client he was appointed to represent. See Black's Law Dictionary 553 (rev. 5th ed. 1979); see also People v. Block, 71 Misc.2d 714, 715, 337 N.Y.S.2d 153, 157 (N.Y.Crim.Ct.1972) ("fee" means payment in return for professional services rendered). In common parlance, the compensation paid an attorney is a "fee"; this is in contradistinction to the "costs" or "expenses" incident to the litigation, which reimburse the attorney for reasonably incurred out-of-pocket expenses expended in defense of the case. See RSA 604-A:6 (effective August 17, 1983); see Dade County v. Strauss, 246 So.2d 137, 141 (Fla.Dist.Ct.App.1971).

A fee for the defense of an indigent criminal defendant need not be equal 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. State v. Boyken, 637 P.2d 1193, 1195 (Mont.1981); see Smith v. State, 118 N.H. 764, 770, 394 A.2d 834, 838 (1978).

Because the $500 limit on fees for the defense of misdemeanors, as applied in this case, may result in unfairness and unreasonableness, we hereby amend Supreme Court Rule 47 to lift the...