The June 21, 2011 South Carolina Supreme Court opinion in Ex Parte Brown 393 S.C. 214, 711 S.E.2d 899 (2011), finally establishes “that the Takings Clause of the Fifth Amendment to the United States Constitution is implicated when an attorney is appointed by the court to represent an indigent litigant. In such circumstances, the attorney’s services constitute property entitling the attorney to just compensation.”
Brown came to the Supreme Court in an unusual procedural posture. Brown was appointed to represent Howard in a death penalty trial. The current statute regarding compensation for attorneys in court appointed criminal cases allows compensation in excess of $3,500 “only if the court certifies, in a written order with specific findings of fact, that payment in excess of the rates is necessary to provide compensation adequate to ensure effective assistance of counsel and payment in excess of the limit is appropriate because the services provided were reasonably and necessarily incurred.” S.C. Code §17-3-50(C).
During the litigation process, Brown repeatedly tried to get relieved as counsel, often threatening to discontinue working on the case even when the trial judge informed him he did not have that option. Three times the trial judge had to order Brown to continue the representation over his threats to stop working. At the end of the trial, the trial court considered Brown’s motion to exceed the normal $3,500 fee cap but ultimately denied his request solely based on his unprofessional conduct. Brown appealed. With Justice Pleicones dissenting, the Supreme Court held that Brown’s unprofessional conduct was an adequate reason to deny Brown fees above the normal statutory cap.
The interesting part of the Brown opinion stems from issues raised by the South Carolina Bar in its Amicus Curiae brief. The majority opinion considers and accepts the Bar’s argument that Rule 608 court appointments implicate the takings clause of United States Constitution. It took its reasoning from a Kansas Supreme Court decision in State v. Smith, 747 P.2d 816, 842 (Kan. 1987)
Attorneys make their living through their services. Their services are the means of their livelihood. We do not expect architects to design public buildings, engineers to design highways, dikes, and bridges, or physicians to treat the indigent without compensation. When attorneys’ services are conscripted for the public good, such a taking is akin to the taking of food or clothing from a merchant or the taking of services from any other professional for the public good. And certainly when attorneys are required to donate funds out-of-pocket to subsidize a defense for an indigent defendant, the attorneys are deprived of property in the form of money. We conclude that attorneys’ services are property, and are thus subject to Fifth Amendment protection
The South Carolina Supreme Court further held that for court appointments after July 1, 2012, an appointed attorney is entitled to “a fair attorney’s fee.” In a ruling I am not wise enough to decipher, it explained what a “fair attorney’s fee” might be:
It under the circumstances would be one of fact, subject to an abuse of discretion standard of review. Take the case before us—Appellant’s takings argument would be resolved by the payment of some amount as attorney’s fees; whether the amount awarded is constitutionally appropriate or just under the circumstances is a question of fact, subject to an abuse of discretion standard.
We believe the case-by-case approach is in accord with the amicus curiae brief. Consider the following excerpt from the Bar’s brief: “This does not mean that a lawyer is entitled to a fee which exceeds the statutory cap in all cases. Since takings analysis is a sliding scale, it is possible that an appointed case might require so small an allocation of a lawyer’s time that a lawyer is entitled to no fee for his services.”
The Bar’s position reflects its recognition of the unique nature and role of the legal profession in society, thus explaining its preference for a “sliding scale” approach. Bailey [v. State, 309 S.C. 455, 424 S.E.2d 503 (1992)] spoke to this in the statutory context, and we agree with the Bar that it applies in the constitutional context: “[an] appointed attorney should not expect to be compensated at market rate, rather, at a reasonable, but lesser rate, which reflects the unique difficulty these cases present as balanced with the attorney’s obligation to defend the indigent.”
If anyone reading the Brown opinion can determine how much I, and my fellow members of the South Carolina Bar, are going to get paid for our court appointed work after July 1, 2012, please let me know.
 I note the irony of the South Carolina Supreme Court addressing an issue only raised in an amicus curiae brief the day after the United States Supreme Court reversed a judgment of the South Carolina Supreme Court in Turner v. Rogers based solely upon an issue only raised in an amicus curiae brief.