8.8Costs of a Court-Appointed Attorney

“If a defendant is able to pay part of the cost of a lawyer, the court may require contribution to the cost of providing a lawyer and may establish a plan for collecting the contribution.” MCR 6.005(C). MCL 769.1k(1)(b)(iv) specifically permits a court to impose on a defendant “[t]he expenses of providing legal assistance to the defendant.”

A.Finding of Guilt Prerequisite to Imposition of Fees

“A court may not impose upon [a] defendant the expenses of providing his legal assistance [under MCL 769.1k(1)(b)(iv)] until [that] defendant is found guilty, enters a plea of guilty, or enters a plea of nolo contendere.” People v Dyer, 497 Mich 863, 863 (2014) (noting that “if defendant withdraws his plea [under MCR 6.310(A)], imposition of attorney fees is not appropriate at [that] time”).

Under MCL 768.34,¹ the court cannot order a defendant to repay the cost of appointed counsel if the prosecution files an order of nolle prosequi. People v Jose, 318 Mich App 290, 296 (2016). “MCL 768.34 precludes a trial court from ordering reimbursement of any costs—including the cost of court-appointed counsel—for a defendant whose prosecution is suspended or abandoned.” Jose, 318 Mich App at 297, 299 (additionally holding that MCR 6.005(C) does not provide authority for the trial court to order reimbursement for the work appointed counsel performed before trial where “[t]he court never determined that defendant was ‘able to pay part of the cost of a lawyer’ and never ‘require[d] contribution’” under MCR 6.005(C)) (second alteration in original).

B.Factual Findings Must Support Attorney Fees

Trial courts must make factual findings regarding the cost of providing legal services to a defendant in support of attorney fees assessed under MCL 769.1k(1)(b)(iv). People v Lewis, 503 Mich 162, 163-164 (2018) (noting that “the language of MCL 769.1k(1)(b)(iii), which gives trial courts the authority to assess costs without ‘separately calculating those costs involved in the particular case,’ [does not apply] to the attorney-fee provision in [MCL 769.1k(1)(b)(iv)], which authorizes the imposition of expenses for legal assistance to a defendant”).

C.Defendant’s Ability to Pay

A trial court is not required to analyze a defendant’s ability to pay a court-appointed attorney fee before imposing the fee; it is only required to do so when the fee is actually enforced. People v Jackson, 483 Mich 271, 275 (2009). However, “once an ability-to-pay assessment is triggered, the court must consider whether the defendant remains indigent and whether repayment would cause manifest hardship.” Id. 

“[R]emittance orders of prisoner funds, under MCL 769.1l, generally obviate the need for an ability-to-pay assessment with relation to defendants sentenced to a term of imprisonment because the statute is structured to only take monies from prisoners who are presumed to be nonindigent.” Jackson, 483 Mich at 275.

D.Reasonableness of the Fee Must be Considered

The trial court erred where it limited an award of attorney fees to the maximum allowed for plea cases under the county’s fee schedule without consideration of “the reasonableness of the fee in relation to the actual services rendered[.]” In re Ujlaky Attorney Fees, 498 Mich 890, 890 (2015). “Although the expenditure of any amount of time beyond that contemplated by the schedule for the typical case does not, ipso facto, warrant extra fees, spending a significant but reasonable number of hours beyond the norm may.” Id. (directing the trial court, on remand, to “either award the requested fees, or articulate on the record its basis for concluding that such fees are not reasonable”).

E.Contingency Fee Arrangement Impermissible

“[T]he trial court’s policy of not paying [appointed appellate] counsel for time spent in preparing a delayed application for leave to appeal or for preparing [appellate] motions . . . when [the Court of Appeals] ultimately denies leave to appeal ‘for lack of merit in the grounds presented’ or denies relief on the motions constitute[d] an abuse of discretion.” In re Foster Attorney Fees, 317 Mich App 372, 376 (2016). “[A]ttorneys are not allowed to enter into contingency-fee arrangements in criminal matters under the Michigan Rules of Professional Conduct. MRPC 1.5(d). Therefore, no attorney in the state of Michigan could agree to be a court-appointed attorney . . . under [the trial] court’s current policy because to do so would require entering into a contingency-fee arrangement in violation of the attorney’s professional responsibilities.” Foster, 317 Mich App at 377.