We hold today that the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney's services constitute property entitling the attorney to just compensation.
Brown v. Howard, No. 26991 (S.C. June 21, 2011).*
Brown was appointed as defense counsel in a case in which Howard was charged with serious felonies "including first degree criminal sexual conduct, two counts of kidnapping, two courts of armed robbery, and possession of a weapon during the commission of a crime." South Carolina law limits attorneys fees in indigent criminal defense matters to $3,500, S.C. Code Ann. §17-3-50(A), and Brown asked the court to withdraw, "stating that his obligations to an appointed capital case were taking up substantial amounts of time."
The court declined Brown's repeated "belligerent" requests. When Brown refused to continue, the court threatened him with contempt. and he decided to continue with his represenation of Howard.
After trial, the court awarded $17,268 for costs for investigative work and expert fees (in excess of the statutory cap of $500), but did not exercise its discretion to award Brown attorneys fees in excess of the statutory $3,500. [Barista's note: one should not expect largess from the court when as an attorney you refuse to stand up when addressing the court, when you don't accept the court's ruling even after your objections are noted and preserved, and when you "consistently refuse[] at different points throughout the pre-hearing trial and now during the trial of this case to continue."]
Brown appealed:
Appellant presents the issue as one of law: may a trial court properly deny a request to exceed the statutory cap for attorney's fees based on the attorney's unprofessional conduct? We answer that question "yes" under the unique and compelling circumstances presented. Given the egregious level of Appellant's inexcusable conduct and persistent disregard of the trial court's orders, we find the trial court did not abuse its discretion in refusing to award fees in excess of the statutory cap.
The South Carolina Bar Association appeared as amicus and argued that when attorneys' services are conscripted for the public good, the Takings Clause is "implicated," even though the practice of law is a regulated profession. The court agreed, holding that the legislature recognized in section 17-3-50 "the inherent fairness in providing for an award of attorney's fees and costs in appointed cases." The court concluded, however, that this is not simply a matter of legislative benevolence, but is required by the U.S. Constitution:
What the legislature has recognized for statutorily authorized appointments, we now find is additionally entitled to constitutional protection. We extend the constitutional protection to all court-ordered appointments.
The court did not limit this to criminal appointments, but included appointment in all cases (the opinion noted that courts have the discretion to appoint counsel in "extraordinary" circumstances when "necessary to render justice." (citing Ex parte Dibble, 310 S.E.2d 440, 443 (S.C. Ct. App. 1983)).
The court rejected the Bar's call for specific guidelines for attorney compensation, but the court "decline[d] to set bright-line rules" and left it up to the trial courts for determination case-by-case. "The question of a taking is one of law. The question of what constitutes a fair attorney's fee under the circumstances would be one of fact, subject to an abuse of discretion standard of review." Finally, the court concluded that its holding would take effect starting in Fiscal Year 2012. [Barista's note: one might think that if compensation was constitutionally required, it wouldn't matter that payment had not been budgeted for the current fiscal year.]
A single justice dissented and would not have reached the issue raised by the Bar, since Brown did not raise the argument. Generally speaking amici cannot raise issues which the appellant does not, and they are considered waived. The dissenting justice also concluded that the trial court abused its discretion by denying fees in excess of the statutory cap, since the only reason stated by the trial court was that Brown acted petulantly and unprofessionally. The statute requires consideration of whether the fee request is "reasonable."
Hat tip to colleague Andy Gowder (who produces the Grounded blog) for alerting us to this case.
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*We're not sure why this case is styled Brown v. Howard (to use the teminology of our Texas-licensed brethren and sistren - thanks, Rebecca) on the court's site. By our reckoning it should be Ex parte Brown. But we'll stick with the official label.
