South Carolina: Attorneys' Fees Can't Be "Taken"

by: Anthony F. Della Pelle
27 Jun 2011

Court Holds Appointed Attorneys’ Time is Compensable Property

 As our colleague from Hawaii, Robert Thomas, recently posted in his excellent blog,, the South Carolina Supreme Court has ruled that an attorney’s services constitute a property right which entitles the attorney to just compensation under the Takings Clause of the Fifth Amendment.  An appointed attorney sought removal as appointed counsel to an indigent client, and refused to move forward with the case despite warnings from the judge.

 At issue was whether the trial judge could deny an attorney fees above and beyond the statutory cap provided for under South Carolina law.  The South Carolina Supreme Court answered “that question ‘yes’ under the unique and compelling circumstances presented.  Given the egregious level of Appellant’s inexcusable conduct and persistent disregard of the trial court’s orders, we find the trial court did not abuse its discretion in refusing to award fees in excess of the statutory cap.”  That Court also recognized that the “question of a taking is one of law.  The question of what constitutes a fair attorney’s fee under the circumstances would be one of fact. . . . [W]hether the amount awarded is constitutionally appropriate or just under the circumstances is a question of fact, subject to an abuse of discretion standard.”

This decision by South Carolina’s highest court is not binding upon other states, but its impacts are worth watching.  In New Jersey, just compensation is ordinarily awarded for real property rights which are taken, not personal property such as a right to or claim for payment, with few exceptions, so it will be interesting to see how the South Carolina opinion might influence other courts around the country.

 To read the South Carolina Supreme Court’s opinion in this case, please click here.

 For posts from other blogs discussing the topic, please see the following:

 South Carolina: “Court-Appointed Attorneys’ Service Is Property For Purposes Of The Takings Clause” –

 Amicus Brief In S. Carolina Case: “The State may not require a lawyer to spend office overhead or render his services on an appointed case without providing just compensation.” –

 Takings Clause Applies To Appointed Counsel’s Representation – Legal Profession Blog

 South Carolina Supreme Court Finds Statutory Caps On Fees For Appointed Counsel Could Constitute Taking Under 5th Amendment – Josh Blackman’s Blog

 The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.