### No. 81-287 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

THE STATEOF 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,Judgepresiding. Counsel of Record: ForAppellant: 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 CountyAttorney, Great Falls,

Montana ForAmicus Curiae: LawrenceAnderson, GreatFalls,Montana Daniel Donovan, Great Falls,Mt.

Submitted: October 19, 1981 Decided:



### ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Joe Bottomly, a court-appointed attorney, moved the District Court towaive its 

### local rule which sets forth a maximum amount in attorney fees to be awarded a court-appointed attorney forrepresenting 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 forover 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, Bottomlymoved the District Court for compensation and submitted an affidavit itemizing hiswork 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 

### timeat $30.00 per hour, and $31.98 

### for expenses. The District Court denied hisrequest and limited his compensation to $1,000 forattorney fees plus $31.98 for expenses. Rule 45 of the Rules of the EighthJudicial 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 forout-of-court time. However the rule also provides that such compensation shall not exceed $1,000 ina case inwhich 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 inexcess of the $1,000 maximum. In hisorder 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 

### werebeing appointed to represent indigentdefendants charged with criminaloffenses. The judge 

### also noted that an unknown amount of expenses still had tobe paid outof the District Court's budgeted funds. On April 17, 1981, Bottomlymoved the District Court 

### to reconsider its order. A hearing 

### was held and Bottomly submitted the affidavitsof 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 spentby Bottomly 

### was reasonable and that a private attorney handling a 

### similar case would charge 

### at least $50.00 per hour. An affidavit fromBottomly'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 thiscase in limiting the award of attorney fees to $1,000. 2. Whether the award of attorney fees in this

### case constitutesan unconstitutional denial of the indigent defendant's right 

### to effective assistanceof 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 1972Montana Constitution by taking defense counselIsproperty without just compensation orby 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 limitingBottomly'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 attorneyrepresents 

### or defends any person by order of the court on the ground that the person is financiallyunable 

### to employ counsel, the attorney shallbe paid forhis services such sum as a districtcourt 

### or justice of the 

### state supreme court certifies to be a reasonable compensation therefor and shallbe 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 legalcounsel available and the increasingly heavy burden on the legal profession created by expanded indigent rights. Court appointed counsel should neitherbe unjustly enriched nor unduly impoverished, butmust be awarded an amount which will

### allow tminancial survival of hispractice. A county shallpay a reasonable amount for 

### allprofessional services which arenot donated. "IElements of consideration in fixing fees include the amount of time and effort expended, the nature and extentof the services rendered, the feespaid for similar services in other jurisdictions

## ,the traditional responsibilities of the legal profession, the amount of public fundsmade available for such purposes, and a judicious respect for the tax paying public as 

### well as the needs of the accused. I' Statev. Allies (1979), Mont

# . ,597 P.2d 64, 36 St. Rep. 820, citing Statev. Lehirondelle (1976), 15Wash.App. 502, 550 P.2d 33. A court-appointed attorneymust be awarded an amount that willallow the financial survival of hispractice. 

### We agree that "fees awarded appointed counsel must reimburse the attorney for officeoverhead and expenses and yield something toward hisown support." People v. Johnson (1981), 93 Ill.App.3d 848, 417

In Allies, supra, this Court set forth a guideline regarding the maximum hourlyrate to be awarded a court-appointed attorney. This guideline 

### was abolished inIn 

### re Petition 

### to Adopt Rule, Etc. (1981), Mont

# . ,634 P.2d 1185, 38 St.Rep.1613, but the other guidelines 

### set forth inAllies, supra, remain ineffect. In thiscase 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 thiscase and the District Court abused its discretion in limiting Bottomly's compensation to thisamount. Bottomly submitted an affidavit from his accountant showing thathisoverhead costs alone for the period of time that he worked on thiscase exceeded the $1,000 award, leaving nothing tobe 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

casemust be considered when fixing a fee. Since

### we have determined that the award of attorney fees inthis case was unreasonable, 

### we need not address the remaining issuesraised in thisappeal. 

### We reverse and remand thiscase to the District Court for

a reconsideration and redetermination of the award of attorney fees following the guidelines 

### set forth inAllies, supra, as modified by In re Petition to Adopt Rule, Etc.

## , supra.

Chief Justice



### We concur: