State v. Robinson

835 P.2d 908, 313 Or. 565, 1992 Ore. LEXIS 143

• Court: Oregon Supreme Court
• Decided: July 30, 1992
• Docket: CC C90-0112CR; CA A65018; SC S38465
• Status: Published

Opinions

PETERSON, J.

Petitioner is a lawyer who was appointed to represent an indigent defendant on appeal. ORS 138.500(1). After the Court of Appeals decided the case, petitioner requested an attorney fee based on 35.8 hours of time working on the appeal. ORS 138.500(4). The Court of Appeals reduced her claim by 8 hours and ordered payment for 27.8 hours. Petitioner requested reconsideration by the Court of Appeals. The court denied reconsideration without further explanation. Petitioner seeks review. She asserts that, because the Court of Appeals did not provide a sufficient explanation of why there was a reduction in the attorney fee claimed, this court should “reverse the Court of Appeals, and * * * direct the Court of Appeals to order payment in full or to provide a published explanation for the fee reduction.” Because the Court of Appeals’ explanation was sufficient, we affirm its decision.

ORS 138.500(1) provides for appointment of counsel to handle the appeals of persons who, are “without funds to employ suitable counsel.” ORS 138.500(4) states in part:

“After oral argument on the appeal or, if there is no oral argument, after submission of the appeal to the court for decision, the Court of Appeals shall * * * certify a reasonable amount of compensation for counsel appointed under [ORS 138.500(1)].”

In State v. Longjaw, 307 Or 47, 761 P2d 1331 (1988), an appointed lawyer whose fee petition had been disallowed in part by the Court of Appeals petitioned this court for relief, claiming that the Court of Appeals erred in reducing her claim for legal services provided to indigent defendants. This court held:

“Petitioner claims that the court must accept without question the amount of hours set forth in the petition. The court is not so bound. * * * The statutes * * * contemplate a check on the reasonableness of the amount claimed.

“Appointed counsel must submit documentation to the court that will support the claim for compensation. If the court determines that the claim is unreasonable or unwarranted, the court may reduce the claim accordingly.

“If the court reduces the amount of the claim, counsel must be given an opportunity to respond by submitting additional documentation or explanation to the court. The court then decides whether to allow or deny further compensation. The court is the final arbiter of any dispute over the amount of attorney fees, but the court cannot act arbitrarily in making its decision. * * *

“If the court finds that too much time is claimed, e.g., the claim is for 10 hours’ work and the court finds that it probably took the lawyer only half that time, the court should reduce the amount accordingly. Likewise, if the court finds the appointed counsel expended too much time for a specific task, the court may reduce the claim to what would be a reasonable time. The court should provide the appointed counsel with a brief explanation for the reduction. * * *

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“In sum, (1) the Court of Appeals shall set attorney fees based on its determination of reasonableness of the fee requested for the work product; (2) if the Court of Appeals reduces the amount of the fee claimed, the court shall provide the appointed counsel with a brief explanation for the reduction; (3) in the event of a reduction by the Court of Appeals, appointed counsel may petition for reconsideration and submit additional documentation and explanation to the court without appearance; (4) the Court of Appeals shall set the final amount of compensation without further explanation; and (5) to the extent this assessment of the lawyer’s work is factual, the Court of Appeals’ factual decision is final.” 307 Or at 50-51 (footnotes omitted).

After the Longjaw decision, but before its decision in this case, the Court of Appeals adopted this procedure for considering petitions for compensation:

“Petitions for Attorney Fees and Costs: Court-Appointed Attorney Cases

“A petition for compensation and expenses of court-appointed counsel is reviewed by the Appellate Records Section to determine whether the petition complies with ORAP 13.15. The petition is then forwarded to the Motions Department for decision. A copy of the petition is sent to the judge who wrote the opinion or, if the case was decided without opinion, to the Presiding Judge of the department that heard the case. That judge makes a recommendation to'the Motions Department for disposition of the petition. The Motions Department then makes the final decision. The order allowing compensation or expenses of court-appointed counsel is also a voucher directed to the Fiscal Section of the State Court Administrator’s office for payment of the amount allowed.

“If the decision is not to allow the full amount of compensation claimed in the petition, an order will issue showing the number of hours disallowed and the category of services in which claimed hours were disallowed. If the court disallows any portion of the petition, the attorney may move for reconsideration of the decision and provide further documentation or explanation of the disallowed compensation or expense. ” Interned Practices of the Court of Appeals of Oregon 27-28 (Rev. Jan. 1, 1991).

In this case, petitioner filed a petition for attorney fees. The petition itemized, by day and nature of work performed, the amount of time that the lawyer had spent on the appeal, totaling 35.8 hours. The Court of Appeals certified a fee in an order that stated in part:

“The Court has concluded that the time you claim to have expended in this case is not reasonable in these respects:

“_ matters preliminary to researching and writing the brief; therefore a deduction of_hours has been made.

“XX research and writing the brief; therefore a deduction of 6 hours has been made.

“XX preparation for and attendance at arguments; therefore a deduction of 2 hours has been made.

“_ post-argument activities; therefore a deduction of_ hours has been made.

“The court certifies your petition for 27.8 hours at $30 per hour for a total of $834.00

* * * *

“You may ask for reconsideration of this award by submitting additional documentation and explanation within 14 days after the date of this letter.”¹

Petitioner filed a motion for reconsideration, explaining why she believed that the time spent was reasonable.² The Court of Appeals denied the motion without further explanation. On review, petitioner asserts:

“[A]n individual lawyer is kept in ignorance as to why a fee in a particular case was cut [by the Court of Appeals], and the bar is kept in ignorance as to why the court makes reductions generally. Even the identity of the judge making the reduction is not revealed. Lawyers are unable to conform their petition for fees to the law, because the lawyers have no way to discover what the law is.

((* * * * *

“The court must have reduced the fees for a reason. Counsel asks that the court tell her what the reason was.

“* * * [U]nless the lawyer knows why there has been a fee reduction, the lawyer cannot make a meaningful argument that the reduction was inappropriate. Longjaw directed the Court of Appeals to provide that information.” (Footnote omitted.)

Petitioner concludes her petition for review with this request:

“[T]he Supreme Court should grant review, should reverse the Court of Appeals, and should direct the Court of Appeals to order payment in full or to provide a published explanation for the fee reduction.”

Amicus Oregon Criminal Defense Lawyers Association argues:

“Of the 35.8 hours expended by [counsel], there is no clue which 8 hours were disapproved by the Court of Appeals.

“The failure to explain the reduction, together with the absence of any apparent unreasonableness on the face of the fee petition, and the cogent explanation submitted in its support, implies an arbitrary decision, contrary to Longjaw. Accordingly, this Court should vacate the reduction and order full payment for the hours expended.”

Amicus Oregon State Bar contends:

‘ ‘Longjaw requires a ‘brief explanation. ’ But checking a box and identifying a broad area in which the reduction is made cannot be what Longjaw contemplated: the affected attorney cannot meaningfully request reconsideration, and the appellate defense bar is left with the firm impression that its hard work is not respected by the Court of Appeals. * * * Appellate defense lawyers deserve fairness and due process in court procedures to distinguish between the two.”

Contrary to petitioner’s and amici’s assertions, the Court of Appeals’ form does sufficiently explain why the Court of Appeals reduced the claim for fees. Its order advised petitioner that, in its opinion, she spent more time than was reasonable in researching and writing the brief and in preparing for and attending the oral argument. True, that explanation is short and lacks detail. But it gives the lawyer enough guidance for the lawyer to respond meaningfully, as did petitioner in this case. In her motion for reconsideration, she explained, in detail, time spent “reading the transcript * * *, doing legal research, * * * drafting the brief, * * * [and] for preparation and oral argument.”

The court’s response to the fee petition is detailed enough so that a lawyer who believes that the Court of Appeals erred can submit additional documentation to support the claim. Petitioner’s motion for reconsideration in this case shows that she knew why the Court of Appeals disallowed her claim and how to address those matters. The order was sufficiently definite to permit a lawyer to make specific assertions concerning the time needed to research and write the brief and to prepare and deliver oral argument.

The order contains the explanation contemplated by State v. Longjaw, supra, and affords a sufficient explanation for a lawyer to submit a meaningful petition for reconsideration. More is not required.

The order of the Court of Appeals is affirmed.

1 Currently, ORAP 13.15 sets forth procedures for the recovery of court-appointed attorney fees. ORAP 13.15(8)(a) provides:

“If the court approves the amount of compensation, costs and expenses requested, the court shall certify that amount for payment. If the court approves less than the amount requested, the court will issue a notice of disallowance of compensation, costs or expenses in the form prescribed in Appendix P and showing where the request was reduced and by how much.”

Appendix P is, in form, similar, but not identical, to the Court of Appeals’ order. In part, it provides for an order as follows:

“The Court of Appeals (Supreme Court) has certified less than the amount requested for court-appointed counsel compensation, costs and expenses in this case. See the attached Certification form.

“1. COUNSEL COMPENSATION AND LAW CLERK/LEGAL ASSISTANT HOURS

“The court has deducted_hours of attorney time as not reasonable:

“Attorney Law Clerk (ATOA) (PARA)

_ _ hours for matters preliminary to research and to brief writing.

_ _ hours for research and brief writing.

_ _ hours for preparing and attending argument(s).

_ _ hours for postargument activity.

_ _ other (explain)___”

2 Her petition in part stated:

“The transcript in this case was short but complicated. There was also an affidavit of counsel which supplied facts. The time sequence was critical to the argument, yet the facts were produced in a convoluted manner. This was partly due to mid-hearing discoveiy of a new ticket of the defendant’s (for false name to a police officer). This at first appeared to undercut the argument (that the officer did not have probable cause to believe the defendant had given a false name), but in fact did not (because the ticket was issued some time after the arrest.) Thus it took time to sort this out. I believed that clarity was critical to an effective presentation of the case.

“Further, this particular case involved a rapidly developing area of the law. Searches incident to arrest for failure to display a driver’s license, coupled with testimony that the officer did not believe the driver had been truthful, have been addressed by the court of appeals a good deal recently. I thought it was critical that I be absolutely current in this area. I cited 17 cases, one (in slip opinion form) decided 19 days before the day the brief was filed.

“Although there was but one assignment of error, I thought I needed to anticipate potential state arguments. For example, I briefly discussed the ‘inevitable discovery’ and ‘plain view’ doctrines.

“For similar reasons, I spent a good deal of time preparing for oral argument. I re-read the cases I cited, re-read the confusing transcript, and drafted a time line for my use. (I then decided to supply a copy of the time line to the court.) When preparing, I knew my opponent was one of the more experienced assistants attorney general, who is a meticulous and knowledgeable opponent.

“I was sixth on the docket, according to the records I have. It takes me one hour to drive to Salem; I allow some extra time on the drive down. I remember that I did argue for some time on this case.”