In Re the Attorney Fees of Meizlish

Swainson, J.

On February 6, 1969, Fred Clay was convicted in Wayne County Circuit Court, upon a plea of guilty, of breaking and entering a business establishment with intent to commit the crime of larceny.¹ On March 3, 1969, he was sentenced to a term of not less than eight nor more than ten years. Defendant had been represented by Max M. Silver-man, of the Defender’s Office — Legal Aid and Defender Association of Detroit, and that office was initially appointed to represent him for post-conviction and appellate proceedings. However, that office filed a motion to withdraw on the grounds that it could not “objectively review the validity and merits of a plea of guilty in which it participated and which, in the opinion of Max M. Silverman, was providently entered.” The motion was granted on May 23, 1969, and on May 28, 1969, Sheldon M. Meizlish was appointed as substitute counsel for post-conviction and appellate proceedings. After a careful and considered review of the matter, Mr. Meizlish concluded there was no basis for any meaningful challenge of the conviction and, after securing the approval of defendant, filed a motion to withdraw. That motion was granted on September 5, 1969.

The defendant indicated that he still desired to challenge his conviction and in conformity with the requirements of In re Hoffman, 382 Mich 66 (1969), the court appointed David Eason as new counsel.

In seeking leave to withdraw, Mr. Meizlish followed the suggested procedure of the United States Supreme Court in Anders v California, 386 US 738; 87 S Ct 1396; 18 L Ed 2d 493 (1967). Mr. Meizlish requested a fee for his services and submitted to the court a detailed service voucher showing that he had spent 9-3/4 hours working on defendant’s case.² The trial court agreed that the services claimed were reasonable and did not doubt that they were performed.

Wayne Circuit Court Rule 14.13³ provides for compensation for assigned counsel. The trial court construed it to allow $50, and this amount was awarded to Mr. Meizlish. Mr. Meizlish was dissatisfied with the award and filed a motion for rehearing. The motion was denied on December 5, 1969. The Court of Appeals denied leave to appeal on April 16, 1970. We granted leave to appeal. 384 Mich 752.

Appellant states the issue as follows:

“Did Wayne County Circuit Court Local Rule 14.13 and the award for attorney fees in this case violate the Appellant’s rights, under the Fourteenth Amendment of the Federal Constitution and Article I, Sections 2 and 17, of the State Constitution, to due process of law and equal protection of laws, and do they violate the right of every indigent defendant, particularly those who desire to institute post-conviction proceedings, to effective assistance of counsel, the right to an effective appeal, due process of law and equal protection of laws, in violation of Amendments 6 and 14 of the Federal Constitution and Article I, Sections 2, 17 and 20, of the State Constitution?”

Wayne Circuit Court Rule 14.13 provides:

“Any attorney assigned by a judge of this court to defend an indigent person charged with a crime, shall, before payment therefor, file with the Clerk a written statement that he has not received or been promised payment for [sic] any other source.

“On certification of the trial judge, such attorney shall be entitled to receive from the Wayne County Treasurer:

“(a) A fee not to exceed $50.00 for appearance by the attorney at arraignment on the warrant.

“(b) A fee for appearance by the attorney at the examination:

If Examination is waived, $50.00.

If Examination is adjourned at the request of the prosecutor or on Court’s own motion, each adjournment, but not to exceed two adjournments, $50.00.

If Examination is conducted where testimony is taken or if Motion to Dismiss is granted for each day or portion thereof, $100.00.

“(c) A. fee for appearance by the attorney at the arraignment in Circuit Court, $50.00.

“(d) A fee for preparation of case for trial in Circuit Court; defendant on bond, including plea, $100.00:

For preparation of case for trial in Circuit Court; If defendant is in jail and is interviewed by attorney at the jail, including plea, $125.00.

“(e) A fee for appearance on written Motion in Circuit Court when the Motion is actually argued; A fee of up to $50.00 to be awarded at the discretion of the judge hearing the Motion.

“(f) In addition, a fee for attendance in Circuit Court for Trial:

Cases in which the maximum penalty is life imprisonment, for each day or portion thereof, $150.00; All other cases, for each day or portion thereof, $100.00.

“(g) A fee for appearance at time of sentence, $50.00.

“(h) A fee for appearance at probation violation hearing; For each one-half day, $50.00.

“(i) A fee for appearance at sanity hearing, for each day or portion thereof, $100.00.

“(j) A fee for filing written Motion for new trial and arguing the same, filing of briefs thereof, etc., $50.00.

“(k) In all cases of appeals to a higher court, a fee not to exceed $50.00 for each one-half day spent in the Circuit Court, plus $100.00 for every 400 pages of transcript, or major fraction thereof, but not less than $100.00; plus $250.00 for all proceedings in the higher court where claim of appeal and brief is filed.

No attorney appointed pursuant to this rule shall incur any expense to the county in preparing the indigent’s defense without written permission of the trial judge or of the presiding judge, except for ordinary witness fees.

Upon its adoption, this rule shall be effective for all services rendered subsequent thereto.”

Appellant contends that the system provided under Wayne Circuit Court Rule 14.13 is irrational and promotes assembly line justice. We cannot agree with this contention. Distinctions are made in the amount of money a lawyer receives if, for example, he conducts a preliminary examination as opposed to waiving a preliminary examination (Rule 14.13 subd [b]). Additional fees are granted if a case is appealed to a higher court (Rule 14.13 subd [k]). Obviously, lawyers may spend more time on some cases than on others and still receive the same compensation, and certainly in some cases a lawyer will receive far below the minimum bar fees. Rut, in general, the court rule does provide reasonable compensation for court appointed attorneys for indigents.

Appellant’s contention that he has been deprived of due process and equal protection under the United States Constitution and Michigan Constitution 1963 has been discussed and decided adversely to him by numerous courts in this country.⁴ In United States v Dillon, 346 F2d 633 (CA 9, 1965), cert den 382 US 978; 86 S Ct 550; 15 L Ed 2d 469, the Court rejected an attorney’s contention that property was taken in violation of due process of law when he was forced to defend an indigent defendant without compensation. The Court stated (p 635):

“An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a ‘taking of his services.’ ”

In Jackson v State, 413 P2d 488, 490 (Alas, 1966), the Court held that the attorney did not have a constitutional right to compensation for defending an indigent defendant. The Court stated:

“The requirement of the attorneys’ oath and Canon 4 reflect a tradition deeply rooted in the common law — that an attorney is an officer of the court assisting the court in the administration of justice, and that as such he has an obligation when called upon by the court to render his services for indigents in criminal cases without payment of a fee except as may be provided by statute or rule of court. This principle is so firmly established in the history of the courts and the legal profession that it may be said to be a condition under which lawyers are licensed to practice as officers of the court.”

Likewise, the courts have uniformly rejected the contention that an attorney is denied the equal protection of laws when he defends an indigent without compensation. In State v. Rush, 46 NJ 399, 407; 217 A2d 441; 21 ALR3d 804 (1966), the Court stated:

“We turn to the constitutional claims advanced by counsel in his own right. They are that an assignment without compensation for services takes private property for public use without just compensation (N. J. Const., Art I, par. XX; U. S. Const., 5th and 14th Amendments), takes property without due process of law and denies equal protection of the law (N. J. Const., Art. I, par. I; U. S. Const., 14th Amendment), constitutes involuntary servitude (U. S. Const., 13th Amendment) or peonage prohibited by federal law, 42 U. S. C. A. § 1994.

“None of these contentions is new, and if one accepts the premise that the duty to defend the poor is a professional obligation rationally incidental to the right accorded a small segment of the citizenry to practice law, these claims fall away. Essentially the same claims were rejected recently in United States v. Dillon, 346 F. 2d 633 (9 Cir. 1965), cert. denied 86 S. Ct. 550 (1966), and State v. Clifton, 247 La. 495, 172 So. 2d 657, 667 (Sup. Ct. 1965), Indeed in Powell v. State of Alabama, 287 U. S. 45, 73, 53 S. Ct. 55, 65, 77 L. Ed 158, 172 (1932), the Supreme Court assumed without pause that attorneys were so obligated, saying ‘Attorneys are officers of the court, and are bouiid to render service when required by such an appointment,’ and although the Supreme Court did not add ‘without compensation,’ the context, makes it clear that uncompensated service was in mind. The Supreme Court of course did not mean that the ultimate obligation to furnish counsel reposed in the bar rather than in the State, for quite plainly the obligation the Court there found and later expanded in Gideon v. Wainwright, supra, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed 2d 799, is the obligation of the State itself rather than the personal obligation of any of its officers, but Powell did assume that, if attorneys as officers of the Court were called to serve without pay, no constitutional restraint stood in the way.

“Conceivably the burden upon the bar could reach such proportions as to give the due process argument a force it does not now have. We have not reached that extraordinary stage. Nonetheless, and far short of that point, there is the policy question whether in fairness the bar alone should be required to discharge a duty which constitutionally is the burden of the State.”

The Court in Rush also dealt with appellant’s claim that an indigent defendant is denied his constitutional right if lawyers are forced to defend without compensation. The Court stated (pp'405-407):

“In strictness counsel for an indigent defendant is hardly in a position to claim compensation on the ground that the rights of his assigned client have been infringed. However, we appreciate that counsel’s purpose is to place a pressing problem before us rather than to gain a dollar result for himself. In fact, he expressly asks that, should he prevail, the award for his services be limited to six cents. To the end that all phases of the issue may be in view, we will assume he has the status to press the constitutional claims of defendants charged with crime.

“As to the right of an accused, appellant contends that counsel, if unpaid, cannot by his performance satisfy the constitutional guarantee of the right to the aid of counsel. We know of no data to support a claim that an assigned attorney fails or shirks in the least the full measure of an attorney’s obligation to a client. Our own experience, both at the bar and on the bench, runs the other way. A lawyer needs no motivation beyond his sense of duty and his pride.

“Nor can it be said that assigned counsel are less qualified than counsel privately retained. As in other callings, some men acquire reputations for excellence. In numbers they are few, and sometimes it is not clear why fortune has chosen them alone. It is understandable that a defendant will seek a lawyer of wide repute if he can afford him, but of course the Constitution does not assure every man, indigent or not, that only a leader of the bar will speak for him. Even the State cannot command such representation; most criminal cases are prosecuted by young men who have yet to be acclaimed but who are not in the least unequal to their responsibility on that account. Nor does preeminence at the bar necessarily bespeak special experience in criminal matters. In the State courts, criminal work is not too rewarding financially. Yery few specialize in that area, and overall the well known lawyers have had but sporadic exposure to it.

“Nor is prior experience in criminal matters essential. The law is a vast field and no man is in command of all of it. Lawyers, as do judges, move from scene to scene, absorbing the special features of each. A capacity to that end goes to the essence of the practice of law. A lawyer’s training equips him for it, and his every experience sharpens that skill. And although a new scene may demand a greater initial effort, the newcomer may well bring a zeal and a freshness long lost to a tired or comfortable expert.

“Moreover, few cases really turn upon the skill of the advocate. The facts and the applicable law are quite compelling, and a lawyer who has both on his side will do well against anyone. No doubt a small number of cases are lost through lack of skill or poor preparation, but while the legal profession, like all others, suffers to a degree from the inept and the indolent, the phenomenon cannot he said to he related to a system of assignment of counsel. Further, illogical though it may be, judges tend to have a larger sense of responsibility for the performance of lawyers, they assign than for the performance of counsel privately retained, and to the extent that this is true, there may be an advantage for the indigent accused.

“We are satisfied our system of assignment yields representation equal to that obtained by defendants who retain their own counsel. This is not to say that another approach would not he more desirable. Rather our point is that what we have meets the constitutional demand, and to recur to the precise point counsel here seeks to make, we are satisfied that our assignment system does not fall short because assigned counsel are unpaid.”

We agree with the New Jersey Court that an indigent defendant is not deprived of his constitutional rights by the appointment of unpaid counsel. Dedication and diligence to a client’s cause should not be altered because of the payment of a higher fee. Judging by the numerous complaints received by the State Bar Grievance Administrator, the payment of minimum fees does not insure the quality of work from retained counsel. Most attorneys are dedicated and will zealously protect the rights of any client they defend.

Moreover, the Wayne Circuit Court Rule does provide compensation and, thus, attorneys appointed for indigent defendants are not working without compensation. In this case, defendant Clay was provided with the services of three attorneys, and it cannot he seriously contended that he was denied his constitutional right of representation by counsel.

Appellant has demonstrated the difficult problems that courts face in insuring an. efficient administration of criminal justice, combined with the concern for defendants’ constitutional rights. Our Court will continue to work for improvement of our present system, agreeing with appellant that it must be improved.

To this end the State Bar as well as a number of local bar associations have recently petitioned the Court to adopt a rule requiring that court appointed counsel be compensated for their services in accordance with the State Bar Minimum Fee Schedule. Because of these increasingly insistent demands for such a uniform schedule of fees, and in view of the present dialog regarding improved methods of financing the entire judicial system, we shall doubtless review the question again in the future, but for the present we are reluctant to take such action as would plunge the counties into a position of responsibility for the payment of attorneys’ fees more than double those presently paid.⁵ Such a burden we are not yet prepared to thrust upon them.

Therefore, we hold that Wayne Circuit Court Rule 14.13 is not arbitrary and capricious and does not violate appellant’s rights under the due process and equal protection clauses of the United States Constitution or the Michigan Constitution of 1963.

Judgment affirmed.

T. M. Kavanagh, C. J., and T. E. Brennan, T. G. Kavanagh, and Williams, JJ., concurred with Swainson, J.

1 MCLA 750.110; MSA 28.305.

2 “Date Description of Service Amount of lime

“June 24, 1969 Drafting Stipulation and Order for extension of time to file post-conviction motions; obtaining approval of Chief Appellate Lawyer Torina; obtaining entry of Order lhr.

“June 26, 1969 Dictating memo re: conversation with Det. Everett Plumb, officer in charge of case. 1/4 hr.

Bate Description of Service Amount of Time

“July 16, 1969 Research; dictating letter to client. 3 hrs.

“July 31, 1969 Preparing Motion to Withdraw. 2 hrs.

“Aug. 8, 1969 At hearing oh Motion to Withdraw; other work on file. 1-1/2 hrs.

“Aug. 14, 1969 Dictating letter to client,.etc. 1/2 hr.

“Aug. 25, 1969 Dictating letter to client; dictating ‘Report of Assigned Counsel’; die- 1-1/2 hrs. tating letter to Judge Kennedy. 9-3/4 hrs.”

3 The present Wayne Circuit Court Rules became effective on November 1, 1970. At the time this action commenced the applicable rule was 14.5. Present rule 14.13 is identical to the previous rule 14.5.

4 For a complete collection of tliese eases, see 21 ALB3d 804 et seq. It appears that only one state, Indiana, has held that the state constitution requires compensation for an attorney appointed to represent an indigent defendant.

5 The foEowing statistics were provided by the appropriate governmental units.

Number of indigent defendants appearing in:

Recorder’s Cowt — Detroit Circuit Court — Wayne County

1969: 6,522 — Cost $ 950,954.11 1969: 1,026 — Cost $385,439.29

1970: 8,688 — Cost $1,690,648.00 1970: 1,451 — Cost $531,830.72