No. 80-341 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

IN RE: PETITION TO ADOPT RULE REGARDING 

ATTORNEY'S FEES, COSTS & INVESTIGATION 

EXPENSES OF PRIVATE ATTORNEYS APPOINTED 

TO DEFEND INDIGENT DEFENDANTS et al., 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Appellant: 

D. Patrick McKittrick argued, Great Falls, Montana 

Rockwood Brown argued, Billings, Montana 

Mike Stephens argued, Montana Association of County Attorneys, 

Helena, Montana 

Joseph Wolff argued, Butte, Montana 

R. D. Corette, Jr., Butte, Montana 

Michael J. Hughes, Helena, Montana 

William E. Astle, Kalispell, Montana 

John H. Kuenning, Great Falls, Montana 

W. William Leaphart, Helena, Montana 

Willis B. Jones, Billings, Montana 

Russell K. Fillner, Billings, Montana 

James T. Harrison, Jr., Helena, Montana 

Submitted: December 3, 1980 

Decided: SfP 2 9 1981 

Filed: SEP 29 1981 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an original proceeding arising out of a 

petition filed in this Court by the judiciary committee of 

the State Bar of Montana requesting that we adopt a rule 

regarding a minimum schedule for attorneys fees, costs and 

investigation expenses of private attorneys appointed to 

defend indigent defendants in criminal and juvenile cases. 

The judiciary committee submitted a proposed rule with 

the petition, and requested us to set the matter for hearing. 

We did cause a public hearing on the petition to be held on 

December 3, 1980 and invited participation by the public. 

We published notice to the bar through The Montana Lawyer, 

the publication promulgated by the State Bar of Montana. 

Responses or appearances were filed or made by Willis 

B. Jones and Russell K. Fillner, individually, of Billings, 

Montana, and James T. Harrison, Jr., of Helena, Mcntana. 

Written response was received from Daniel Donovan, a public 

defender in Great Falls, Montana. Appearances and written 

responses were received from Michael Stephen, executive 

director of the Montana Association of Counties and from 

Joseph G. Wolf, budget director, Butte-Silver Bow. 

The judiciary committee, acting on behalf of the Board 

of Trustees of the State Bar of Montana, requested that the 

Montana Supreme Court establish hourly rates, maximum totals, 

and investigative fees for court-appointed private counsel 

(not including public defenders) where indigent defendants 

are involved. The suggested hourly rates were $45 for pretrial 

and post-trial appearances and actual trial time in court, 

$25 per hour for travel, and $40 per hour for all other legal 

work. The suggested maximum totals included $7,500 for 
felonies, where the possible penalty is death, life imprisonment, or imprisonment for more than 50 years; felonies with 

lesser punishments, $5,000; in juvenile cases, a maximum of 

$2,000 per trial court proceedings; and for misdemeanors and 

petty offenses, a maximum of $1,000 for trial court proceedings. 

If such cases did not go to actual trial, the maximums would 

be one-half of the suggested amounts for full trial. A total 

sum for appellate proceedings, regardless of the type of 

crime involved was suggested at $2,000. 

The petition also suggests that investigative, expert, 

or other services necessary for adequate defense for an 

indigent client should be allowed, not to exceed $600, 

exclusive of reimbursement for other expenses reasonably 

incurred. 

In his written statement, Russell K. Fillner suggests 

$45 for pretrial and post-trial appearances and $50 for actual 

trial time. He objects to maximums because they may not 

square with a defendant's constitutional right to effective 

counsel. He suggests that the $600 limitation for investigative 

and expert work is unrealistic. 

Daniel Donovan in his written response, contends that 

$50 is proper as an hourly amount to be paid for all legal 

work performed by a court-appointed attorney, and again, he 

also objects to the maximums as being unrealistically low. 

The attorneys who appeared at the oral hearing were 

generally in favor of the judiciary committee petition though 

all suggest that the amounts requested are probably low. 

Opposition, or perhaps restraint, was proposed or 

suggested by Mr. Stephen and Mr. Wolf. Mr. Stephen pointed 

out the different circumstances that prevail in Montana's 

56 counties and the differing situations for taxpayers in 
counties where there are substantial amounts of federal 

lands or Indian reservations which do not produce a tax 

base. (Mr. Stephen contends that the in-lieu payments 

received from the federal government are not sufficient to 

make up the difference.) Mr. Wolf expressed opposition to 

any rule promulgated by this Court upon the ground that the 

matter of fees in criminal cases should be left to the discretion of the local district judge. The attorney general, 

Mike Greely, suggested through his deputy, Jerome J. Cate, 

that such a statewide rule might have anti-trust implications. 

We have carefully studied the judiciary committee petition, 

and the various responses that have been made to that petition, 

orally and in writing. We have tried to assess the ramifications of any statewide rule that we might promulgate, but we 

find such different circumstances from county to county, even 

within the same districts, that we conclude that a just 

application of a statewide rule is hardly feasible. 

The greatest problem we find with the promulgation of 

a statewide fee schedule is the certain impact it would have 

on the county-funded budgets of the district courts. The 

1979 legislature, in Ch. 692, Laws of 1979, limited property 

taxes collected in each county for all district court costs 

(except for judicial salaries and travel expenses) to 6 mills 

for first and second class counties, 5 mills for third and 

fourth class counties, and 4 mills for all other counties. 

Ch. 405, Laws of 1979, requires county-funded district court 

programs to be subjected to the county budgeting process, 

and Ch. 275, Laws of 1979 limits district court judges, in 

making expenditures or incurring liabilities, to the amount 

of the county-detailed budgetary appropriations and classifications. 

As long as those statutes are on the books, and not vacated, 
repealed or modified by a subsequent legislature or by 

order of a court of competent jurisdiction, their strictures 

apply to the district courts. We will not adopt a minimum 

fee schedule and put the district courts in the possible 

predicament, though the predicament may not be intended by 

us, of following our order or breaking the budgetary laws. 

The second problem that we face in considering a statewide fee schedule is the disparity that exists in the costs 

of doing business borne by the legal profession between 

districts with large populations and those areas of smaller 

population. The attendant expenses of paying rent for 

professional offices, purchasing and housing a workable law 

library, and employing competent clerical and stenographic 

help vary greatly from area to area; yet such expenses 

undoubtedly enter into a proper calculation as to what a 

private attorney should receive for his services. A statewide 

figure would probably be a boon to some and a bane to others. 

A third variable is the competence of some attorneys for 

criminal work as compared to others. Experience, learning 

and talent are undoubtedly among the factors that a district 

court may wish to consider in appointing private attorneys 

to defend indigent persons. The district courts should be 

free, within their budgetary limitations, to contract for the 

best possible available defense counsel. This is especially 

true if the crimes charged have a great public significance 

or gravity. 

In State v. Allies (1979), - Mont . - , 597 P.2d 

64, 66, 36 St.Rep. 820, 823, because of the plethora of cases 

coming to this Court involving disputed attorneys fees and 

costs for court-appointed counsel, we set a maximum guideline 
of $30 per hour for legal work, subject to a total maximum 

of $5,000 in any criminal proceeding without prior court 

approval, and we approved a $2,000 fee for the services 

performed on appeal in that case. In State v. McKenzie 

(1979) , - Mont. , 608 P.2d 425, 36 St.Rep. 2157, we 

approved and awarded $3,000 to attorneys representing the 

defendant on one issue in the appellate process. Each of 

those cases involved open-end contracts; that is, no upper 

limit on the amounts to be paid the attorneys was discussed 

or agreed to when the attorneys were first appointed. Thus, 

the attorneys on their part, in good faith, expended their 

hours on behalf of the respective defendants, trusting that 

they would be paid on the agreed schedule; whereas the 

district courts, on their part, being busy and having no 

direct knowledge of the amount of work being done, unexpectedly 

found themselves facing extraordinary claims for attorneys 

costs. These were the considerations that led this Court in 

Allies to set forth the upper limits of $5,000 in district 

court work and $2,000 for appellate work. Of course, each 

of these limits was subject to the further order of the 

district court in justifiable cases. 

A fourth reason for our conclusion in this case is 

found in section 46-8-201, MCA, which provides: 

"Remuneration of appointed counsel. (1) 

Whenever in a criminal proceeding an attorney 

represents or defends any person by order of 

the court on the ground that the person is 

financially unable to employ counsel, the attorney 

shall be paid for his services - such - sum - as - a 

district court or justice of the state supreme 

court certifies --- to be a reasonable compensation 

therefor and shall be reimbursed for reasonable 

costs incurred in the criminal proceedings." 

(Emphasis added. ) 

The intent of the statute is clear: where county funds are 

concerned, a district court should certify as to the propriety 
of the bill; where state funds are concerned, a justice of 

the state supreme court should so certify. The promulgation 

by us of a statewide fee schedule would take from the 

district courts a discretionary duty to determine the 

propriety of the bill for legal services presented against the 

county funds, and make the district courts' certificate 

ministerial rather than discretionary. We find the legislature intended to vest a wide latitude of discretion in the 

district court in the matter of fees, so it could take into 

consideration the factors involved. 

In Allies, 597 P.2d at 65-66, we quoted from State v. 

to the following effect: 

"Elements of consideration in fixing fees 

include the amount of time and effort expended, 

the nature and extent of the services rendered, 

the fees paid for similar service in other 

jurisdictions, the traditional responsibilities 

of the legal profession, the amount of public 

funds made available for such purposes, and a 

judicious respect for the taxpaying public as 

well as the needs of the accused. (Citing cases.)" 

We therefore conclude it proper and statutorily required 

to leave to the district courts the choice of counsel for 

the particular crime charged against indigent defendants, and 

the rate of pay such court-appointed counsel may receive 

for their efforts. We remove the $30 per hour maximum rate 

that we fixed in Allies, supra, and we leave to the discretion 

of district judges the fixing of a maximum hourly rate to 

apply in each district. We keep in effect the upper total 

limit of $5,000 for any given criminal proceeding without 

prior court approval, and the total figure of $2,000 for 

appeal purposes where the same are to be paid from county 

funds. These total limits may be increased by the district 
courts in justifiable cases. We caution the members of 

the bar and the district courts to see to it that in each 

case of appointnerit of private counsel at the outset of the 

appointment, there be placed upon the minutes or other records 

of the district court the rate of pay and upper limits to be 

received by court-appointed private counsel for services, in 

addition to reasonable expenses, and that any subsequent 

modifications or amendments to that contract be also entered 

on the same records of the court. A district court rule 

adopted for each county in each district, setting out rates, 

would comply with this requirement. 

This opinion shall be and does constitute a judgment, 

to be binding upon members of the bar and district courts 

from and after the promulgation of this opinion, and applying 

to criminal cases and juvenile proceedings from and after the 

date of promulgation hereof. Copies of this opinion shall 

be mailed by the Clerk of this Court, to counsel of record, 

to the parties making appearance herein not otherwise 

represented, and to each district judge and county attorney 

in the State of Montana. The further relief requested by 

petitioner, the judiciary committee of the State Ear of 

Montana, is denied. No costs to 

Justice 

We Concur: 

? 

Justices 

This cause deemed submitted prior