Ineffective assistance of counsel.

In People v Gioglio, __ Mich __ (#143136, 9/21/2011) the Michigan Supreme Court reiterated that when claims of ineffective assistance present a mixed issue of fact and constitutional law, the trial court must first determine the facts and then decide whether those facts demonstrate a violation of the defendant’s constitutional right to the assistance of counsel. People v Lewis (On Remand), 287 Mich App 356 (2010). “When a defendant asserts that his assigned lawyer is not adequate or diligent . . . the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.” People v Ginther, 390 Mich 436 (1973).  A trial court’s factual findings are reviewed for clear error and its ultimate determination de novo. People v Petri, 279 Mich App 407 (2008).).

If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance. Id. at 657 n 21, citing Jones v Barnes, 463 US 745 (1983) and Morris v Slappy, 461 US 1 (1983).  In People v Frazier, 478 Mich 231 (2007), the Michigan Supreme Court clarified how to apply the Cronic/Strickland standards: “[t]he Cronic test applies when the attorney's failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding.”  In Frazier, the Supreme Court refused to apply Cronic and presume prejudice when the defense counsel advised defendant to waive his right to counsel at the police interrogation and failed to attend the interrogation with the defendant. Id. at 244-245.

In this case, because counsel’s failure to test the prosecution’s case was not complete, the analysis is under the Strickland ineffective assistance of counsel test. The right to effective counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; Strickland, 466 US 686. To establish ineffective assistance of counsel, defendant must show that: (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, (2) there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different, and (3) the resultant proceedings were fundamentally unfair or unreliable. People v Toma, 462 Mich 281, 302 (2000); People v Pickens, 446 Mich 298 (1994). Unlike Cronic, the Strickland test addresses specific errors made by counsel, requiring defendant to show that not only was counsel’s performance deficient but also that the defective performance was prejudicial. Strickland, 466 US at 6; Mitchell, 454 Mich at 157. 

Effective assistance of counsel is presumed and defendant bears a heavy burden of proving otherwise. Rockey, 237 Mich App at 76. Defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy. People v Riley (After Remand), 468 Mich 135, 140 (2003). Decisions as to when to make an opening statement, what evidence to present, whether to call or question witnesses, and on what to focus in closing argument are presumed to be matters of trial strategy, People v Horn, 279 Mich App 31 (2008); People v Dixon, 263 Mich App 393 (2004), and declining to raise objections to procedures, evidence, or argument can also be sound trial strategy, People v Unger, 278 Mich App 210 (2008). “This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251 (2001).

Requests for Attorney fees in domestic relations cases, and maybe otherwise.

In Bowers v Bowers, Unpub per curiam opinion, (9/20/2011, #298268) the Court of Appeals addressed requests for attorney fees in a domestic relations matter.  I am considering requiring a separate (evidentiary) hearing to address any request for attorney fees.

In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13, and court rule, MCR 3.206(C).” Reed v Reed, 265 Mich App 131, (2005). MCR 3.206(C) provides: (1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. (2) A party who requests attorney fees and expenses must allege facts sufficient to show that (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

MCL 552.13(1), authorizes as follows the imposition of fees and costs in divorce actions: In every action brought, either for a divorce or for a separation, the court may require either party to pay alimony for the suitable maintenance of the adverse party, to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them, and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. It may award costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.  In addition, this Court has held that attorney fees are “authorized when the party requesting payment of the fees has been forced to incur them as a result of the other party’s unreasonable conduct in the course of litigation.” Stackhouse v Stackhouse, 193 Mich App 437, 445 (1992); Milligan v Milligan, 197 Mich App 665, 671 (1992). “[T]he attorney fees awarded must have been incurred because of misconduct.” Reed, 265 Mich App at 165.

When requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to determine what services were actually rendered, and the reasonableness of those services. Miller v Meijer, Inc, 219 Mich App 476, 479-480 (1996); Petterman v Haverhill Farms, Inc,125 Mich App 30, 33 (1983).

The Supreme Court in Smith v Khouri, 481 Mich 519 (2008) set forth a process for how a court should determine the reasonableness of requested attorney fees. The Smith Court first noted that the party requesting fees bears “the burden of proving the reasonableness of the requested fees.” Smith, 481 Mich at 528–529. The trial court should “consider the totality of special circumstances,” applying as appropriate the six factors listed in Wood v Detroit Auto Inter–Ins Exch, 413 Mich 573, 588 (1982), and the eight factors listed in Michigan Rules of Professional Conduct (MRPC) Rule 1.5(a). The factors overlap and include “the professional standing and experience of the attorney,” “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,” and “the expenses incurred.” Id. at 529–530, quoting Wood, 413 Mich at 588, MRPC 1.5(a).  The Smith Court held that, in determining whether requested attorney fees are reasonable, the trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services.... In determining this number, the court should use reliable surveys or other credible evidence of the legal market. This number should be multiplied by the reasonable number of hours expended in the case.... The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee.... [Id. at 530–531.]  The Court “emphasize[d]” that “‘the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’” Id. at 531, quoting Blum v Stenson, 465 US 886, 895 n 11 (1984). This “satisfactory evidence” of customary fees “can be established by testimony or empirical data found in surveys and other reliable reports.” Id. at 531–532. Mere “anecdotal statements” are not sufficient. Id. at 532.

To determine “the reasonable number of hours expended in the case,” the attorney requesting fees “must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness.” Id. The burden of establishing the reasonableness of the hours reported lies with the attorney requesting fees. If the other party raises a factual dispute regarding the reasonableness of the hourly rates or the hours billed, “the party opposing the fee request is entitled to an evidentiary hearing to challenge” the evidence submitted by the attorney requesting fees and to present contrary evidence. Id. Only after the trial court has determined a reasonable fee by multiplying the reasonable hourly rate by a reasonable number of hours billed, should the court “consider the other factors and determine whether they support an increase or decrease in the base number.” Id. at 533.