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Duffy v. Circuit Court For the Seventh Judicial Circuit2/11/2004
r change or modification of the statement or voucher submitted by counsel.
B. Appeal. If the attorney is dissatisfied with the amount of compensation allowed by the judge presiding in the case, the attorney may request that all judges in that circuit review the claim for compensation and hold a hearing thereon. A decision by the majority of the judges in that circuit shall become the amount of the fees and costs authorized.
South Dakota Rules for Compensation of Court Appointed Counsel. The appeal hearing provides attorneys with the opportunity to explain and defend the reasonableness of their submitted fees to all of the judges in the circuit.
Factors in Determining Reasonableness of Attorney Fees
. In addition to the Rules, this Court has set forth a number of factors for judges to consider in determining the reasonableness of attorney fees. In Tappe we established a two-pronged test for court appointed attorney fees. First, the billed services must be reasonably necessary and second, the amount must be reasonably valued. 326 NW2d at 894. We noted, however, in Tappe that rates for representing indigent clients are generally below the market rates charged to non-indigent clients. Id. at 894-95. We recognize that the per hour fee as currently established is still below the hourly rate attorneys charge. Duffy is not challenging the per hour rate of $69 effective at the time of the assigned cases. The lower court made no adjustments to the per hour rate.
. The factors, as established in Tappe, that a court must consider when determining reasonableness are as follows: "time spent and services rendered, the attorney's skills and experience, the complexity of the case, the attorney's overhead costs, and the character and importance of the litigation." Id. at 895. The Tappe Court noted the factors were not exclusive. Id. Since deciding Tappe, we have listed additional factors for a trial court to consider in determining what constitutes "reasonable" attorney fees. Some of the factors stem from the Model Rules of Professional Conduct. City of Sioux Falls v. Kelley, 513 NW2d 97, 111 (SD 1994). The factors which are in addition to those enumerated in Tappe and are relevant to court appointments are: "the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly"; "the fee customarily charged in the locality for similar legal services"; "the time limitations imposed by the client or by the circumstances"; and "the experience, reputation, and ability of the lawyer or lawyers performing the services." City of Sioux Falls v. Johnson, 2003 SD 115, , 670 NW2d 360, 362 (citing Kelley, 513 NW2d at 111) (quoting Model Rules of Professional Conduct, Rule 1.5)). Another factor relevant to criminal cases and considered by other courts is the possible punishment involved. Hulse v. Wilfvat, 306 NW2d 707, 711 (Iowa 1981).
. Based on the factors set forth in prior cases and the Model Rules of Professional Conduct, we conclude that when reviewing the reasonableness of court appointed attorney fees, a trial court must consider the following factors:
(1) the time spent and services rendered;
(2) the complexity of the case and difficulty of the questions involved;
(3) the character and importance of the litigation;
(4) the skill required to perform the legal service properly;
(5) the time limitations imposed by the client or by the circumstances;
(6) the fee customarily charged in the locality for similar legal services;
(7) the experience, reputation, and ability of the lawyer performing the services; and
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