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Trial Court Erred By Making Appointed Attorney Fees Contingent on Appeal Outcome

Posted on Thursday, May 17, 2018

In In re Attorney Fees of Mitchell T. Foster (Docket No. 327707), the Court of Appeals reversed a trial court decision denying reasonable attorney fees to an appointed criminal defense appellate attorney because his application for leave to appeal was denied “for lack of merit in the grounds presented.” Mitchell Foster was appointed by the Iosco Circuit Court to serve as the defendant’s appellate attorney. He filed a delayed application for leave to appeal a plea-based conviction on sentencing grounds, but the Court of Appeals denied the application “for lack of merit in the grounds presented.” To appellate practitioners, a denial of leave “for lack of merit” is a typical stock phrase. It does not mean that the case was frivolous, as it is entirely possible to raise a non-frivolous argument and still lose your case, let alone simply have your case’s application denied.


Yet, the Trial Court in In re Attorney Fees of Mitchell T. Foster refused to allow Mr. Foster, the defendant’s appellate attorney, to be paid for his preparation of the application for leave to appeal. The Trial Court stated that the county could not afford to pay for attorneys to “file stuff that doesn’t have a basis of merit to it.” The Trial Court maintained that any time an application for leave to appeal was denied based on the merits, appointed appellate counsel could not be paid.


The Court of Appeals reversed the Trial Court’s decision, noting that defendants have a right to the appointment of counsel for first tier review after a plea-based conviction. The attorneys appointed to represent these defendants, likewise, have a statutory right under MCL 775.16 to reasonable compensation for their work. This right to compensation may not be made contingent on the outcome of the matter, as the Trial Court did here. Indeed, the Court of Appeals noted that such a contingency fee arrangement in a criminal case would violate the Michigan Rules of Professional Conduct.


The Court went on to clarify that use of the stock phrase “for lack of merit in the grounds presented” does not necessarily say anything about the merits of the case, but may simply mean the Court found the matter unworthy of expenditure of further judicial resources. There is some tension between this clarification and the Court of Appeals’ decision in a recent unpublished case, MacDowell v Houghtaling (Docket No. 328902), where the Court concluded that the phrase “for lack of merit in the grounds presented” “clearly expressed an opinion on the merits of plaintiff’s arguments” and showed “that plaintiff would not have succeeded in an appeal as of right,” insulating his appellate attorney from malpractice liability for failing to timely file his claim of appeal.


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