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Trial Court Must Give Reason For Awarding Only Portion Of Requested Attorney Fees

Posted on Wednesday, January 15, 2020

A trial court abused its discretion by not articulating a reason for awarding only a portion of the attorney fees that appointed appellate counsel had requested, the Michigan Court of Appeals has ruled in In re Attorney Fees of Robyn Frankel.

Detroit attorney Robyn Frankel was appointed appellate counsel for the defendant, who was convicted of first-degree criminal sexual conduct. Frankel filed a motion for appellate attorney fees, asking the Macomb County Circuit Court to exceed the presumptive maximum of $3,375 and award her $5,445. In her motion, Frankel asserted the defendant’s case required substantially more work than a typical criminal appeal. She presented the trial court with an itemized billing statement and explained that she refrained from billing for time spent on her regular correspondence with the defendant and for certain court filings.

Macomb Circuit Judge James M. Biernat, in reviewing Frankel’s motion, held: “This is never [an] entirely satisfied expense for most lawyers whether they be appellant or trial lawyers because the remuneration rarely equals the benefit bestowed on your client but on the system itself. But, nonetheless, the Court in reviewing this finds that there are some extraordinary aspects to this matter that did require payment beyond the pay schedule as was outlined in [the] pleadings. The Court is awarding $4,410 in reimbursement and the additional $212.50 in expenses.”

Frankel appealed the fee award, arguing the trial court abused its discretion by not giving a reason for awarding only a portion of the fees that she had requested.

“We agree,” the Court of Appeals said, noting that appointed counsel is entitled to reasonable compensation pursuant to MCL 775.16.

In making its ruling, the Court of Appeals cited In re Recorder’s Court Bar Ass’n, 443 Mich 110 (1993), where the Michigan Supreme Court held that while what constitutes reasonable compensation may vary among the trial courts, “the Legislature clearly intended an individualized determination of reasonable compensation.”

The Court of Appeals then turned to the facts in Frankel’s case.

“Here, [Frankel] provided an itemized billing showing that she spent 72.6 hours on this case, and requested attorney fees in the amount of $5,445,” the Court of Appeals wrote. “[Frankel] noted that the presumptive fee in Macomb County was $3,375 for 45 hours of work but explained that the amount of work that was required was above and beyond what the traditional fee schedule contemplated. While the trial court agreed that [Frankel] was entitled to more than the presumptive fee, the trial court did not state why a fee of $4,410 was more reasonable than appellant’s requested amount of $5,445. The court’s failure to do so constitutes an abuse of discretion.”

On remand, the trial court “must either award the requested fees or articulate on the record its basis for concluding that such fees are not reasonable,” the Court of Appeals concluded.

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