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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 There is some tension between this clarification and the Court of Appeals’ decision in a recent unpublished case, MacDowell v Houghtaling (Docket No. 328902), where the Court concluded that the phrase “for lack of merit in the grounds presented” “clearly expressed an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.

It is well known in Michigan that attorneys who do court-appointed work are usually paid pretty miserably for their time. This is true both in the trial court and on appeal. Each county sets its own pay scale. A recent supreme court order gives one such court-appointed attorney a chance to recover his "extraordinary fees" on a court appointed criminal appeal. In re Attorney Fees of John W. Ujlaky, SCt order issued September 30, 2015 (Docket 150887). 

Kent County's fee schedule pays $55/hour for court-appointed criminal appeals, and caps the fee for guilty plea appeals at $660. The schedule also provides for "Extra fees with written justification & approval." Kent County appointed Attorney John Ujlaky for a guilty plea appeal. Mr. Ujlaky spent 39.1 hours on the appeal, and submitted a statement to the county for the scheduled amount of $660, plus $1550 in extraordinary fees (which required a motion and a hearing). The county denied the extraordinary fees and the Court of Appeals affirmed. In re Attorney Fees of John W. Ujlaky, COA opinion issued October 23, 2014 (Dockets 316494 & 316809). Based on Attorney Ujlaky's time spent on the appeal (not counting, of course, any time he spent trying to recover fees), Attorney Ujlkay was essentially paid $16.87/hour for his time on the appeal (dividing the scheduled fee of $660 by actual hours spent on the application). The Court of Appeals, like the trial court, noted that Attorney Ujlaky agreed to the fee schedule when he signed on to the County's court-appointed list. The Court of Appeals, like the trial court, was not impressed with his explanation about the need for extraordinary fees in this case (there was a 94 page transcript for an "extensive evidentiary hearing," he wrote a "22-page appellate analysis" that addressed two issues, and when asked by the trial court what characteristic of the case justified extra fees, he responded, "nothing particularly, you know."). The Court of Appeals also noted that, because the evidentiary issue had been briefed in the trial court, Attorney Ujlaky "would not have to ahve done a great deal of original analysis to present those issues on appeal." 

The Supreme Court disagreed and reversed the Court of Appeals decision, and remanded to the trial court for a "determination of the reasonableness of the attorney fees requested." The Supreme Court did note, however, that any amount of time spent above "the schedule for a typical case does not, ipso facto, warrant extra fees." But when an attorney spends a "significant but reasonable number of hours beyond the norm," the Supreme Court concluded that the attorney might be entitled to additional fees. The Supreme Court instructed the trial court to either award additional fees or "articulate on the record its basis for concluding that such fees are not reasonable." It is noteworthy that SADO/MAACS [the quasi-governmental agency that is charged with administering the court-appointed criminal appeal system] filed an amicus brief in support of Attorney Ujlaky's position. 

Because court-appointed attorneys are paid so little in many counties in Michigan (which occurs not just with criminal appeals, but also appeals in the child welfare system, such as termination of parental rights), this Supreme Court decision could give appointed counsel the courage to seek extraordinary fees when the case requires a significant expenditure of attorney time. Apparently the Supreme Court was not satisfied with the Court of Appeals' rationale that the appellate attorney did not have to do much "original analysis" because the issue had been briefed in the trial court. The Court of Appeals did not say, however, that the appellate attorney did or should merely copy and paste what had been filed in the trial court. Indeed, many appellate judges have complained at conferences and meetings about attorneys who take that approach to their appeals. So hats off to Mr. Ujlaky for pursuing this issue, even though the time spent challenging the fees was certainly never going to justify the fees that could potentially be recovered above the scheduled fee amount.