Takings Clause Applies To Appointed Counsel's Representation

A South Carolina attorney who had been appointed to represent an indigent defendant in a complex criminal case advised the judge that he would stop working on the matter in light of his concern that he would not be paid beyond the statutory maximum for the representation. The judge threatened contempt and the attorney retained counsel. Eventually, the attorney agreed to continue with the case.

He did not get paid over the statutory cap. The trial judge denied excess compensation as a result of the attorney's "unprofessional behavior." He appealed the fee decision.

The South Carolina Supreme Court held that the Takings Clause of the Fifth Amendment of the United States Constitution was implicated but that the trial court did not abuse its discretion in denying fees over the cap:

We...recognize the historic obligation of an attorney to honor court-ordered appointments for the representation of indigents, while also recognizing that the attorney's service constitutes property for Fifth Amendment purposes where there is a right to counsel.  We do not view these principles as mutually exclusive.  In harmonizing these positions, a trial court should be guided by Bailey's approach to just compensation assessed in light of the public service foundation associated with membership in the legal profession.

The court quoted with approval this statement from the Kansas Supreme Court:

Attorneys make their living through their services.  Their services are the means of their livelihood.  We do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation.  When attorneys' services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good.  And certainly when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property in the form of money.  We conclude that attorneys' services are property, and are thus subject to Fifth Amendment protection.

A dissent by Justice Pleicones would find an abuse of discretion by the trial judge:

As noted by the majority, the sole basis for denying Appellant an award of fees in excess of the statutory limit was his unprofessional conduct.  In my opinion, the trial court abused its discretion in failing to consider, as required by the statute, whether the requested payment in excess of the limit was necessary to provide effective assistance of counsel or whether the services provided were reasonably and necessarily incurred.  In my opinion, the trial court should have allowed Appellant to submit evidence as to the reasonableness of his fees, and reviewed it accordingly.  Even in light of Appellant's undeniably petulant behavior, I would find the trial court abused its discretion and would remand the matter with instructions to evaluate the necessity for and worth of Appellant's services.

In South Carolina, the statutory cap is $3,500. (Mike Frisch)