Court of Appeals Holds That Reasonable Compensation for Appointed Appellate Counsel Not Contingent on Outcome on Appeal

On September 22, 2016, the Court of Appeals issued its published opinion in In re Attorney Fees Mitchell Foster, ___ Mich App ___; ___ NW2d ___ (2016) (Docket No. 327707), reaffirming that appointed appellate counsel is entitled to reasonable compensation and holding that reasonable compensation is not contingent on the outcome on appeal.  In Foster, attorney Mitchell T. Foster was appointed as appellate counsel by the trial court for Mr. David Boudrie, Sr., following Mr. Boudrie’s plea-based conviction.  Foster “visited with defendant, reviewed the record, and filed a delayed application for leave to appeal,” raising three issues.  Id. at ___; slip op at 2.  Foster also filed a motion in the Court of Appeals for leave to file a motion to correct an invalid sentence in the trial court.  The Court of Appeals denied leave to appeal “for lack of merit in the grounds presented” and denied the motion for leave to file the motion in the trial court.  People v Boudrie, unpublished order of the Court of Appeals, entered March 5, 2015 (Docket No. 325681).  

After receiving $642 for his services, Foster filed a petition in the trial court for reasonable compensation, arguing that he was not paid for preparing the delayed application for appeal or for the motion filed in the Court of Appeals and that he was not reimbursed for expenses incurred in those filings.  The trial court denied Foster’s petition because the Court of Appeals had denied his application based on “no merit and grounds” and because the trial court resided in a “poor county.”  Foster at ___; slip op at 2.  The trial court stated that it could not afford to pay attorneys who “file stuff that doesn’t have a basis of merit to it.”  Id.  In other words, the trial court denied Foster reasonable compensation for no other reason than his failure to prevail on appeal.  Foster appealed the trial court’s denial of his petition, and the Michigan Assigned Appellate Counsel System joined as intervenor.

The Court of Appeals held that the trial court abused its discretion in denying Foster’s petition, reversed the trial court’s denial of the petition, and reassigned the case to a different judge for assessment of reasonable compensation.  Id. at ___; slip op at 5.  The Court concluded that “the trial court’s policy of not paying counsel for time spent in preparing a delayed application for leave to appeal or for preparing motions filed with this Court when this Court ultimately denies leave to appeal ‘for lack of merit in the grounds presented’ or denies relief on the motions constituted an abuse of discretion.”  Id. at ___; slip op at 3.  The Court reasoned that to conclude otherwise would amount to a contingency fee arrangement in a criminal matter, which attorneys are prohibited to enter into in Michigan.  Id.; MRPC 1.5(d).    

The Court also observed that its denial of an application for leave to appeal for “lack of merit in the grounds presented” may not be equivalent to a final decision on the merits; it may simply be a decision “that the matters asserted were not worthy of further expenditure of judicial resources.”  Id. (citing Halbert v Michigan, 545 US 605, 610; 125 S Ct 2582; 162 L Ed 2d 552 (2005)).  In fact, though not material to its decision, the Court noted that Mr. Boudrie had received “some favorable relief” from his pro se application to the Michigan Supreme Court on one of the issues presented in Foster’s delayed application for leave to appeal.  Id.  

Finally, the Court reaffirmed that appointed appellate counsel is entitled to reasonable compensation. Id., n 1 (citing In re Ujlaky, 498 Mich 890 (2015)).  It also recognized the principle that “reasonable compensation” may vary from circuit to circuit depending on “local considerations, including the population of the county and the county’s financial means.”  Id. (citing In re Recorder’s Court Bar Ass’n, 443 Mich 110, 121; 503 NW2d 885 (1993).  In stating these last two principles, based on the rulings of the Michigan Supreme Court, the Foster Court took the opportunity to reiterate its core holding:  “However, the Court did not state that the trial court may award compensation contingent on the outcome at the appellate level.”  Id.

In sum, the Court reaffirmed that appointed appellate counsel is entitled to reasonable compensation and held that reasonable compensation cannot be based on the outcome on appeal.  We thank Mitchell T. Foster and MAACS Administrator Bradley R. Hall for raising and successfully arguing this important issue.  We recommend that you keep a copy of this opinion in your toolbox for potential use in the future.  

By:  John Zevalking, CDRC Associate Editor