STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

June 1, 1970

Michael V. Braley
State's Attorney, Hutchinson County
Parkston, South Dakota 57366

OFFICIAL OPINION NO. 70-22

Public funds may be expended within discretion of proper governing bodies for attorney fees of public officials sued for official duties, when suit was commenced before but terminated after July 1, 1969. Ch. 232 Session Laws of 1969; SDCL 3-19-1 through 3-19-3, inclusive

Dear Mr. Braley:

You have requested an official opinion in answer to the following factual situation:

"In March, 1069, litigation was commenced by a water well driller against the City of Parkston, Hutchinson County, South Dakota and two aldermen of such city, who served as members of the City Water Committee. The complaint was served upon the parties, and answer to such complaint entered and served prior to July 1, 1969. Thereafter all other legal work, including research, depositions, pretrial conferences, motions, etc., were accomplished after July 1, 1969. On October 8, 1969, motions to dismiss the complaint as against the two city aldermen comprising the City Water Committee were granted, and they are no longer parties to the lawsuit."

In view of this factual situation, you have asked:

"Does Chapter 232 of the Session Laws of 1969 (codified as SDCL 3-19-1 through 3-19-3, inclusive) authorize the payment from city funds of the attorney fees of the above mentioned two city aldermen?"

Chapter 232, Session Laws of 1969, denominated SDCL 3-19-1 through 3-19-3, inclusive, authorizes the governing body of any political subdivision to payor indemnify any of its officials subject to litigation arising from his exercise of official duties or responsibilities as an officer or member of the governing board of such political subdivision. Such payment or indemnity cannot exceed seven hundred fifty dollars. The granting of any payment or indemnity is within the discretion of the governing board of the particular political subdivision involved. The effective date of such act was by statute July 1, 1969.

From the facts you have given, it is assumed that the two city aldermen were acting within their sphere of official duties or responsibilities, and as a result of such action, together with the political subdivision, the City of Parkston, were subject to litigation which commenced prior to July 1, 1969, but which did not terminate, as to them, until after July 1, 1969.

It is well settled that the right of an attorney to a fee from his client depends upon a contract, express or implied, between the attorney and client. If the attorney is compelled to resort to litigation to collect his fee, he must show a valid contract of employment, and further show either performance or excuse for nonperformance of the obligations placed upon him by contract. The 1969 enactment authorizes the political subdivision to payor indemnify an officer or employee "the reasonable attorney fees incurred by virtue of such claim or action."

Ritz v. Carpenter (1920) 43 SD 236, 178 NW 877, 19 ALR 840 involves the liability of a person charged with committing a federal offense for attorney fees. Our court pointed out that which seems logical. A person "employed to defend a person charged with a criminal offense" ordinarily is employed as such attorney throughout the entire length of litigation, and until the defendant is either acquitted or convicted of such crime. Such employment ordinarily does not terminate with representing such criminal defendant through an appearance before a committing magistrate or a United States Commissioner.

It is my opinion that it can be assumed that when the city aldermen sued in the lawsuit employed attorneys, such attorneys were employed until these parties were removed by court order from such litigation, or a verdict was rendered in the action. As I have heretofore indicated, the right to any attorney fees depends upon the contract of employment, and in the absence of evidence to the contrary, it is not a violent presumption to presume that in the factual situation given, such attorney fees would be payable at the conclusion of the litigation in question. In the factual situation given, this lawsuit terminated, as to these individual defendants, after the effective date of Chapter 232 of the Session Laws of 1969.

In People v. Lee (1957) 4 A.D. (2) 873. 166 NYS 2d 646, it was shown that on February 8, 1956 an attorney was appointed to defend an indigent for murder. Effective July 1, 1957 the New York statute authorizing the payment of attorney fees for indigent defendants was increased from $1000 to $1500. After July 1, 1967 the attorney applied for $1500 in attorney fees. The New York Court in awarding such $1500 attorney fees stated:

"Counsel's service here was rendered before such date. Nevertheless in determining reasonable compensation of counsel, the court, as in determining other issues of fact before it, applies the law in effect at the time it makes its determination."

Under federal statutes under specified circumstances, interest is allowed against the government in suits wherein the government or its agencies are defendants. In Bertelsen & Petersen Engineering Co. v. United States (CCA 1 - 1932) 60 F 2d 745 said the court:

"Interest against the government is allowable as provided by statute. There is no fixed right to it. It depends upon the law at the time the claim is allowed by the department, or, if the claim is litigated, when the case is heard in court. Hinds v. U. S. (Court of Claims 1930) 41 F 2d 892."

It is my opinion, consistent with these decisions in analogous situations, that because the dismissal of the suit as against the individual defendants occurred after July 1, 1969, the purpose for which such attorney or attorneys were hired was accomplished. At that time, Chapter 232 of the Session Laws of 1969 authorized and permitted the governing body of the city to payor indemnify the two city aldermen for "the reasonable attorney fees incurred by virtue of such action in which such aldermen were made parties in their official capacity."

Your specific question is answered YES.

I would suggest that in determining such reasonable attorney fees, not exceeding the statutory limit of seven hundred fifty dollars, that the aldermen who are to be paid or indemnified should not be allowed to vote. This seems reasonable, as it would be unfair to the general public to permit them to appropriate from the general city funds for their own benefit.

Attention is also called to State v. Pope (Dist. Ct. of Nebraska 1966) 251 Fed. Supp. 234, for the consideration of the governing body of the City of Parkston in this matter. In the Pope case, two attorneys, Crosby and Rudolph were appointed to defend Pope for murder on June 25, 1965. The Federal Act (18 U.S.C. Sec. 3006A) authorizing the appointment and payment of attorneys for indigents became effective on August 8, 1965. Thereafter, and as soon as possible, the district court reappointed Crosby and Rudolph as attorneys for the indigent Pope. The attorneys in moving for attorneys' fees, itemized the amount of time spent in court and in preparing the case, in relation to what occurred prior to August 8, 1965, and what time was expended in such defense, in preparation and in court thereafter. The Nebraska District Court in this opinion held the reappointment, after effective date of the act was assumed necessary, and that such attorney fees should be computed for time expended after August 8, 1965.

The governing body to authorize the payment or indemnity of attorney fees may desire an accounting of time in court and in preparation prior to and subsequent to July 1, 1969. This requirement, in my mind, is proper. If the payment of such reasonable attorney fees were based upon time expended after July 1, 1969, I doubt if the attorneys would have any legal grounds to dispute this ruling, made in the discretion of such governing body.

To determine what may be considered to be included in finding a "reasonable attorney fee," your attention is called to Wright v. Wright (1931) 58 SD 612, 237 NW 896, wherein our court said:

"Some of the many circumstances to be considered in determining an attorney's compensation are: the nature and importance of the business in which the services were rendered; the labor, time, and trouble involved, the results secured, the burden carried by the attorney, his fitness for the particular task, the weight of responsibility imposed, the contingent nature of the fee."

If the governing body of the City of Parkston, South Dakota (or those members eligible to determine what compensation, if any, shall be authorized for the defense of the two aldermen) follow the suggestions made, it is my conclusion that they will have properly acted within the discretion granted to them by the statute.

Respectfully submitted,

Gordon Mydland
Attorney General