Opinion
No. 85-1615
Decided July 9, 1986.
Attorneys at law — Attorney fees for counsel assigned to indigent defendant — Attorney removed from case by trial judge — Payment of fees may be compelled for work performed prior to removal, when — R.C. 2941.51.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellant, John W. Martin, was appointed defense counsel for an indigent defendant in State v. Anderson, case No. 176153, in the Court of Common Pleas of Cuyahoga County, on September 20, 1982. At appellant's request the court permitted a jury view of the crime scene. The court directed all counsel to meet at the Justice Center before departing to the crime scene with the jury. Despite the court's directive, appellant did not appear at the Justice Center at the prescribed time. The jury proceeded to the scene without appellant and waited for approximately one hour before appellant's arrival.
At the conclusion of the jury view and upon returning to the Justice Center, appellant was summoned to the chambers of appellee Judge John E. Corrigan to determine the reasons for his tardiness. Appellees claim that during the course of this meeting, appellant began to conduct himself in a manner disrespectful to the court and was, therefore, removed from the case. Appellant claims that he was removed from the case without just cause.
The defendant was assigned substitute counsel and the case continued. On August 13, 1983, the defendant was sentenced by the court. On September 22, 1983, appellant filed his application for assigned counsel fees claiming he had worked over one hundred thirteen hours on the case before being dismissed. Appellee Judge Corrigan reviewed appellant's application and determined that appellant was not entitled to attorney fees.
Appellant filed an action in mandamus in the court of appeals seeking an order that he be paid for services rendered in the defense of Will Anderson. The court of appeals granted the appellees' motion to dismiss on August 27, 1985. Appellant petitioned the court of appeals to reconsider its ruling, and this motion was denied on September 13, 1985.
The cause is now before this court upon an appeal as a matter of right.
John H. Carson, Jr., for appellant.
John T. Corrigan, prosecuting attorney, and Michael Pokorny, for appellees John E. Corrigan, Timothy McCormack and Francis G. Gaul.
The sole question before this court is whether an attorney appointed by the court to represent an indigent defendant, who performs legal services for that defendant but is later removed by the court from the case, has a clear legal right to attorney fees. For the following reasons we find that appellant has effectively demonstrated his right to a writ of mandamus compelling payment of attorney fees in this case.
R.C. 2941.51, which governs payment of assigned counsel, stated in pertinent part:
"Counsel assigned to a case * * * shall be paid for their services by the county, and shall receive therefor:
"(A) Subject to division (B) of this section, such compensation and expenses as the trial court may approve." (Emphasis added.) (136 Ohio Laws, Part I, 1868, 1892.)
Part II(B) of Loc. R. 33 of the Court of Common Pleas of Cuyahoga County, General Division, is consistent with this statute and provides:
"Such assigned counsel shall receive compensation for such professional services * * *. * * * The trial judge, after due consideration of such itemized statement, shall determine the amount of compensation * * *." (Emphasis added.)
In the recent case of State, ex rel. Wood, v. Christiansen (1984), 14 Ohio St.3d 27, this court held a local rule establishing a thirty-day time limitation for filing attorney fee applications unreasonable in light of the "statutory right (R.C. 2941.51) of assigned counsel to be paid." The Wood court stated at 28 that:
"While R.C. 2941.51 requires payment for services to assigned counsel, division (A) thereof affords discretion to the trial court by limiting such payment to `such compensation and expenses as the trial court may approve.'"
The facts in Wood are distinguishable from the facts in the instant case as the assigned counsel in Wood was not removed by the trial court before completion of the trial. However, the above-quoted language suggests that counsel assigned to a case has a right to be paid for his work, and that the trial judge's discretion is limited to determining the amount of such payment.
In the instant case appellant has attached to his brief a transcript of the in-chambers meeting that led to his dismissal. While it is perhaps debatable whether appellant's behavior warranted dismissal, it is clear that he put a substantial amount of work into the case before being dismissed. Under R.C. 2941.51 and this court's interpretation of that statute, appellant is entitled to compensation for that work. Accordingly, we find that it was error for the court of appeals to deny appellant's requested writ of mandamus.
We, thus, reverse the decision of the court of appeals and issue a writ of mandamus directing appellees to determine, and pay, an appropriated amount of compensation for the work performed by appellant as appointed defense counsel for an indigent defendant in State v. Anderson, supra.
Judgment reversed and writ allowed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.