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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

A trial court cannot refuse to award fees to court-appointed attorneys even when an appeal is denied for lack of merit. In <em><a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20160922_C327707_39_327707.OPN.PDF" target="_blank" rel="noreferrer noopener">People v. Boudrie</a></em>, No. 327707, the Court of Appeals held that because the Due Process and Equal Protection Clauses require the appointment of counsel for defendants convicted on their pleas who seek review, reasonable compensation must be paid to counsel even when the appellate court denies leave to appeal for lack of merit.

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The trial court appointed Mitchell Foster as appellate counsel for a defendant following the defendant’s plea-based conviction for unlawful imprisonment. After visiting with defendant and reviewing the record, Foster filed a delayed application for leave to appeal with the Court of Appeals and a motion requesting leave to file a motion in the trial court to correct an invalid sentence. The Court of Appeals denied both the application and motion. Foster received $642 for his services. Subsequently, he filed a petition for a reasonable fee in the trial court, arguing that he was not paid for the time he spent preparing the appellate application and motion. During the hearing on Foster’s petition, the trial court judge explained that he presided in a “poor county” that could not afford to pay appellate attorney fees when attorneys “file stuff that doesn’t have a basis of merit to it.” Thus, because the Court of Appeals denied defendant’s application based on “no merit and grounds,” the trial court refused to pay Foster additional fees. The trial court judge further indicated that his policy was to abstain from paying fees for work incurred by a court-appointed appellate attorney anytime the Court of Appeals denied an appeal “for lack of merit on a guilty plea case.” Foster appealed, arguing that the trial court abused its discretion when it denied his request for additional fees. The Court of Appeals agreed.

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The Court of Appeals reasoned that the Due Process and Equal Protection Clauses require the appointment of counsel for indigent defendants who are convicted on their pleas and seek first-tier review in the Court of Appeals. The trial court’s policy of denying fees when an appeal “lacked merit” essentially constituted a contingency fee arrangement in a criminal matter. The Michigan Rules of Professional Conduct bars such an arrangement. Therefore, under the trial judge’s policy, no attorney could agree to be a court-appointed attorney without violating the attorney’s professional responsibilities. Additionally, notwithstanding the impermissible nature of the trial court’s decision, Foster’s application for leave to appeal contained some level of merit. Therefore, Foster was entitled to reasonable attorney fees and expense reimbursement. The Court of Appeals remanded the case to a different judge to resolve the compensation dispute.

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COA: Court-appointed appellate counsel entitled to reasonable compensation for work done even when COA denies application for lack of merit

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COA: Court-appointed appellate counsel entitled to reasonable compensation for work done even when COA denies application for lack of merit

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