Well-Paid Lawyer Can’t Be Forced to Pay Costs for Indigent Client, Appeals Court Rules

Thursday, October 18, 2001

Page No.: 1

Well-Paid Lawyer Can’t Be Forced to Pay Costs for Indigent Client, Appeals Court Rules

By ROBERT GREENE, Staff Writer

Famed defense attorney Leslie Abramson cannot be forced to dip into her $300,000 fee for representing an accused murderer in order to pay her client’s expert and investigative fees, the Fourth District Court of Appeal has ruled.

The court on Tuesday reversed an Orange County judge’s order denying public funding to indigent defendant Thai Bao Tran.

Orange Superior Court Judge Kazuharu Makino reasoned that since Abramson’s retainer was about $150,000 more than a court-appointed lawyer would have gotten, the defense had enough money to pay for its own “ancillary services.” But Justice Kathleen O’Leary of Div. Three said it didn’t matter whether Tran’s family was able to scrape together enough to pay what Abramson was asking.

Tran himself had no money and was entitled to funding for expert and investigative fees whether or not Abramson’s fees were reasonable or Tran’s family could afford them, O’Leary said.

The justice criticized the trial court’s ruling for promoting a policy to simply test whether a lawyer’s charges exceed the ordinary and customary defense rates before deciding whether to grant public funding for ancillary services.

If every retainer agreement were to be scrutinized in that way, O’Leary explained, “it would impinge on the ability of the free market economy to set the price for legal services” and “it would deter many of the best, most experienced attorneys from taking privately retained cases without charging for ancillary services.”

In Tran’s case, the defendant’s mother hired a lawyer who failed to convince prosecutors to drop their bid for a death sentence. So she and the defendant’s sister, three aunts and a cousin pooled their money and hired Abramson, agreeing to pay half the $300,000 fee up front and pay the rest from their salaries over the next 20 months.

Abramson agreed to hire from her fee a second attorney to assist her in representing Tran through the trial, including the penalty phase.

She also agreed to seek funding from the Superior Court for expert and investigative fees.

Following up on that commitment, the high-profile lawyer—best known for her defense of parent-killer Erik Menendez—applied to the court under Penal Code Sec. 987.9 for $17,369.70 for services including investigation, psychological evaluation, an interpreter, and transcription.

Makino denied the motion without a hearing, but offered Abramson a hearing if she wanted one. She did, and told the court that she would not have taken the case if she knew she would have to pay for her client’s investigation and other services. Forcing her to do so against her will would create a conflict of interest, she said, by pitting her duty to represent her client vigorously against the prospect of shrinking a portion of her fee as she seeks additional investigation.

Makino again denied the motion, saying a court-appointed lawyer paid $50 to $75 an hour would produce a total attorney fee of $42,800 to $112,350—-based on billable hour estimates ranging from 856 to 1,498. Since Abramson’s fee was so much higher, the judge said, she should be able to pay for the investigation.

O’Leary noted that Makino failed to consider the fact that Abramson already was using her fee to pay a second lawyer. But even if the judge had taken that into account, it still would have been an abuse of discretion to deny the request for ancillary funding because of rote application of an ordinary-and-customary-charges test, she said.

“Abramson entered into an agreement with Tran’s relatives to defend him,” the justice noted. “It set out exactly what she would be paid, how it would be paid, and what services would be provided for the money. Those services did not include providing the ancillary services Abramson requested under Penal Code section 987.9. The money she received to render the services set forth in the agreement was hers, and she was not obligated to pay some of it for ancillary services.”

Taking into account $3,000 in miscellaneous expenses and hiring the second lawyer, O’Leary said Abramson’s hourly rate worked out to about $200. The figure is far higher than the average rate for court-appointed counsel, but is well within the range of top-flight private criminal defense attorneys, the justice noted.

O’Leary cautioned that the ruling should not be read as an invitation for counsel to raise their fees. If a lawyer’s fee is so high that it shocks the conscience, she said, courts could scrutinize the arrangement to determine whether some of the money was not intended as compensation at all, “but was held for the benefit of the defendant’s defense expenses.”

In this case, she said, it was clear from the beginning that Abramson was not to cover ancillary expenses from her fee.

O’Leary was joined by Justices David G. Sills and William F. Rylaarsdam.