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South Carolina
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TO: All Circuit Court Judges
FROM: Chief Justice Jean Hoefer Toal
DATE: July 6, 2005
       
RE: Ordering Additional Attorney’s Fees for Appointed Counsel.

Several concerns about the authority to order attorney’s fees for appointed counsel in excess of the amount provided by statute have recently come to my attention. Pursuant to S.C. Code Ann. § 17-3-50(C) (2003), payment of attorney’s fees in excess of the statutory amount is allowed if the circuit court “certifies, in a written order with specific findings of fact, that payment in excess of the rates is necessary to provide compensation adequate to ensure effective assistance of counsel.” Because § 17-3-50(C) does not provide for ex parte proceedings to determine attorney’s fees, hearings on requests for additional fees should be held in open court.

Further, whether additional fees are necessary to ensure effective assistance of counsel should be determined with reference to the facts of a particular case. Payment in excess of the statutory rates should not be authorized for all appointment cases or for all of a particular attorney’s appointment cases.