Civil Procedure: SPEES V. KENTUCKY LEGAL AID (COA 6/30/2006)

CIVIL PROCEDURE:  Costs (not award warning order attorney fees; indigent defendant

DATE RENDERED:  6/30/2006

This appeal arose from a divorce filed by an indigent petitioner against a non-resident defendant (Gonzalo).  The petitioner Esmeralda was represented by a legal aid attorney and litigated this matter  without payment of costs after a finding by the court she ws in forma pauperis (IFP) pursuant to KRS 453.190.  Since respondent was a non-resident, Spees was appointed as a warning order attorney  under Kentucky Rules of Civil Procedure (CR) 4.06-4.08 to notify Gonzalo of the pending action.  TAs required by CR 4.07, Spees filed his warning order attorney report in a timely manner and submitted a fee of $150 for his services.

The family court found that Esmeralda’s indigent status prevented her being assessed the warning order attorney fee and, furthermore, that the Finance Cabinet was not required to pay the fee because the dissolution proceedings did not involve child abuse or termination of parental rights.  The family court’s order made no mention of whether Spees’s request for a $150 fee was a reasonable fee for his services, nor did it address Spees’s claim that Kentucky Legal Aid should be responsible for his fee.   Legal Aid is not a party to this action, and the Court did not have jurisdiction over it.  Nor can the Commonwealth be held responsible for the fees because it was not a party to the dissolution action. Held petitioner’s indigent status prevented her from being assessed the warning order fee.

As the COA then stated

regrettably, we are confronted with a deprivation for which no remedy lies. . . . It is our hope and belief that the members of the bar of this state will continue to perform as warning order attorneys in cases involving indigent parties without any expectation of compensation. But any attorney who believes that performing such services will lead to financial hardship may seek to decline an appointment under the auspices of Rules of the Supreme Court (SCR) 3.130(6.2).

The commentary to that rule states that “[a] lawyer may also seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would impose a financial sacrifice so great as to be unjust.” Therefore, unless granting such a motion would work a hardship, we urge the judiciary of this state to grant motions to withdraw made under SCR 3.130(6.2).

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