No. 81-287 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

vs . 

DAVID ALTON BOYKEN, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Joe Bottomly argued, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Randall Snyder argued, Deputy County Attorney, Great Falls, 

Montana 

For Amicus Curiae: 

Lawrence Anderson, Great Falls, Montana 

Daniel Donovan, Great Falls, Mt. 

Submitted: October 19, 1981 

Decided : 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Joe Bottomly, a court-appointed attorney, moved the 

District Court to waive its local rule which sets forth a maximum 

amount in attorney fees to be awarded a court-appointed attorney 

for representing an indigent criminal defendant. The District 

Court denied the motion and Bottomly appeals. We reverse. 

Bottomly was appointed by the District Court of the Eighth 

Judicial District to represent David Alton Boyken. Boyken had 

been charged with three felonies: aggravated assault, robbery and 

felony theft. A trial on these charges began on March 26, 1981, 

and lasted for four days. After deliberating for over nine 

hours the jury returned verdicts of acquittal on the robbery and 

aggravated assault charges but was unable to reach a verdict on 

the felony theft charge. 

Following the trial, Bottomly moved the District Court for 

compensation and submitted an affidavit itemizing his work hours 

and expenses. He requested a total of $3,431.98 for 129.5 hours 

of out-of-court time at $20.00 per hour, 27 hours of in-court 

time at $30.00 per hour, and $31.98 for expenses. The District 

Court denied his request and limited his compensation to $1,000 

for attorney fees plus $31.98 for expenses. 

Rule 45 of the Rules of the Eighth Judicial District Court 

provides that a court-appointed attorney shall be compensated at 

a rate of $30.00 per hour for in-court time and $20.00 per hour 

for out-of-court time. However the rule also provides that such 

compensation shall not exceed $1,000 in a case in which one or 

more felonies are charged unless the case is an extended or 

complex representation. 

The District Court concluded that this case was not the 

type of case contemplated by Rule 45 for allowing fees in excess 

of the $1,000 maximum. In his order denying Bottomly's request 

and setting attorney fees at $1,000, the District Court judge 

noted that more than the usual number of outside attorneys were 
being appointed to represent indigent defendants charged with 

criminal offenses. The judge also noted that an unknown amount 

of expenses still had to be paid out of the District Court's 

budgeted funds. 

On April 17, 1981, Bottomly moved the District Court to 

reconsider its order. A hearing was held and Bottomly submitted 

the af f idavits of three experienced criminal lawyers which 

stated in substance that the case was complex from both a legal 

and factual standpoint, that the number of hours spent by 

Bottomly was reasonable and that a private attorney handling a 

similar case would charge at least $50.00 per hour. An affidavit 

from Bottomly's accountant was also submitted showing that 

Bottomly's share of his firm's monthly overhead for the time he 

spent on this case was approximately $1,006.20. 

The District Court reaffirmed its earlier order and 

Bottomly appeals. 

The following issues are presented for review: 

1. Whether the District Court abused its discretion in 

this case in limiting the award of attorney fees to $1,000. 

2. Whether the award of attorney fees in this case 

constitutes an unconstitutional denial of the indigent 

defendant's right to effective assistance of counsel. 

3. Whether the District Court's award of attorney fees 

violates the Fifth and Fourteenth Amendments to the United States 

Constitution and corresponding sections of the 1972 Montana 

Constitution by taking defense counsel Is property without just 

compensation or by denying him equal protection of the laws. 

4. Whether a Montana District Court has inherent 

authority to order that court appointed counsel be compensated. 

To determine whether the District Court abused its discretion in limiting Bottomly's fees to $1,000 it is necessary to 

refer to section 46-8-201(1) , MCA. It provides: 

"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 proceeding .I' 

This statute requires that a "reasonable compensation" be paid a 

court-appointed attorney. 

This court has adopted guidelines to be followed when 

awarding a court-appointed attorney reasonable compensation. 

They are as follows: 

"'The fee need not be of an amount equal to that 

from a paying client, but should strike a 

balance between con£ licting interests, including 

the professional obligation of a lawyer to make 

legal counsel available and the increasingly 

heavy burden on the legal profession created by 

expanded indigent rights. Court appointed counsel should neither be unjustly enriched nor 

unduly impoverished, but must be awarded an 

amount which will allow tminancial survival 

of his practice. A county shall pay a reasonable amount for all professional services which 

are not donated. 

"I 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 services in other 

j urisdictions , the traditional responsibilities 

of the legal profession, the amount of public 

funds made available for such purposes, and a 

judicious respect for the tax paying public as 

well as the needs of the accused. I' State v. 

Allies ( 1979), Mon t . , 597 P.2d 64, 36 

St. Rep. 820, citing State v. Lehirondelle 

(1976), 15 Wash.App. 502, 550 P.2d 33. 

A court-appointed attorney must be awarded an amount that 

will allow the financial survival of his practice. We agree that 

"fees awarded appointed counsel must reimburse the attorney for 

office overhead and expenses and yield something toward his own 

support." People v. Johnson (1981), 93 Ill.App.3d 848, 417 

In Allies, supra, this Court set forth a guideline 

regarding the maximum hourly rate to be awarded a court-appointed 

attorney. This guideline was abolished in In re Petition to 

Adopt Rule, Etc. (1981), Mont . , 634 P.2d 1185, 38 St.Rep. 
1613, but the other guidelines set forth in Allies, supra, remain 

in effect. 

In this case the District Court did not indicate that it 

had ever considered the guidelines set forth in Allies, supra, 

when it determined that Bottomly should be awarded the $1,000 

maximum established by its own local rule. The $1,000 award is 

not reasonable compensation in this case and the District Court 

abused its discretion in limiting Bottomly' s compensation to 

this amount. Bottomly submitted an af f idavit from his accountant 

showing that his overhead costs alone for the period of time that 

he worked on this case exceeded the $1,000 award, leaving nothing 

to be applied toward his own support. Regardless of its own 

local rules, a District Court must award an amount which will 

allow for the financial survival of the court-appointed 

attorney's practice, and the elements set forth in the Allies 

case must be considered when fixing a fee. 

Since we have determined that the award of attorney fees 

in this case was unreasonable, we need not address the remaining 

issues raised in this appeal. 

We reverse and remand this case to the District Court for 

a reconsideration and redetermination of the award of attorney 

fees following the guidelines set forth in Allies, supra, as 

modified by In re Petition to Adopt Rule, Etc. , supra. 

Chief Justice 

We concur: