Thursday, October 20, 2011

HSC: Burden is on the Court to Explain why it Reduced a Court-Appointed Attorney's Request for Fees Exceeding the Statutory Maximum

In re Attorney's Fees of David Bettencourt (HSC October 19, 2011)

Background. The circuit court appointed David Bettencourt to represent Joshua Gonda in a murder case. The case went to trial and Gonda was found not guilty on all counts. Bettencourt represented Gonda for 16 months. In the middle of the case, Bettencourt requested attorney's fees of $19,188 for 213.2 billable hours at $90.00 per hour. The trial court judge certified the entire amount. The administrative judge, however, struck out billable time submitted for making copies of documents on the grounds that it was not legal work. The administrative judge approved of $18,567.

After trial, Bettencourt made his second request. This time he requested $38,529 in fees for 428.1 hours of work. The trial judge approved it. Again, however, the administrative judge cut out almost $11,000 in fees and awarded $26,640. The administrative judge did not provide any specific grounds for the cut. Attached to the reduced award, however, was a memorandum noting that administrative orders of the court allow "reasonable compensation" and that anything over the statutory threshold may be rejected by the administrative court. The statutory threshold in this kind of case is $6,000. The day the reduced award was issued, the Chief Justice of the HSC ordered that administrative orders would have no effect. Bettencourt appealed.

Court-Appointed Attorneys and Their Bread n' Butter. "The court shall determine the amount of reasonable compensation to appointed counsel, based on a rate of $90 an hour; provided that the maximum allowable fee shall not exceed" a schedule depending on the kind of case. HRS § 802-5(b). Here, the felony case is limited to $6,000. Payment in excess of the maximum is permissible "whenever the court in which the representation was rendered certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the administrative judge of the court." Id.

Certifying and Approving: Two Tiers of Independent Review. The statute, according to the HSC, clearly delineates two levels of review. First, the trial court must certify the amount and secondly the administrative judge must approve. The issue was determining what standards of review were needed. HSC--relying on federal courts--interpreted HRS § 802-5(b) to warrant two independent reviews at the "certifying" and "approving" stages. See United States v. Harper, 311 F.Supp. 1072, 1072-73 (D.D.C. 1970); United States v. Sepulveda, 502 F.Supp. 2d 1104, 1106 (D. Mont. 2007). The HSC held that the trial judge and the administrative judge have de novo review of a request for fees exceeding the statutory maximum.

Reducing the Request Requires a Stated Reason. The HSC reviews the reduction of fees for an abuse of discretion. In re Attorney's Fees of Reinhard Mohr, 97 Hawai'i 1, 6, 32 P.3d 647, 652 (2001). The administrative judge reduced the second amount but did not explain why it was reduced. This made it impossible for the HSC to determine whether the administrative judge did in fact abuse its discretion in reducing the requested amount. Unlike Mohr, where the ICA reduced without explanation an appellate attorney's request that was below the statutory maximum, Bettencourt's request is six times the statutory maximum for a very weighty case--several counts of murder after a 14-day trial. The HSC noted that in this kind of case, "[t]he trial judge (in particular) and the administrative judge are the ones most capable of evaluating whether the compensation Bettencourt requested was fair in light of the work he performed." The HSC further held that in order to enable appellate review of a reduced award, the judge reducing the award must set forth reasons for the reduction. The case was remanded back to the circuit court.

Certifying v. Approving: is there a Difference? The HSC held that both judges conduct an "independent review" of the requested amount. The trial court certifies it, while the administrative judge approves it. Are these different things? Certainly, the legislature intended to put different meaning to the different words, right? Perhaps not. The HSC did not elaborate on the difference. It held that both judges have an independent review. This means that the administrative judge does not defer to the certification of the trial court. And yet, the HSC later noted that "[t]he trial judge (in particular) and the administrative judge are the ones most capable of evaluating whether the compensation Bettencourt requested was fair in light of the work he performed." Does that suggest that when performing an independent review, the administrative judge should have some deference?

No comments: