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TO: All Circuit Court Judges
FROM: Chief Justice Jean Hoefer Toal
DATE: July 8, 2005

RE: Ordering Additional Fees for Investigative, Expert, or Other Services for Appointed Counsel.

Several concerns about circuit court judges authorizing fees exceeding the limit in S.C. Code Ann. § 17-3-50(B) (2003) for investigative, expert, and other services have recently come to my attention. Pursuant to S.C. Code Ann. § 17-3-50(C) (2003), payment of fees in excess of the statutory limit is allowed if the circuit court “certifies, in a written order with specific findings of fact, that . . . payment in excess of the limit is appropriate because the services provided were reasonably and necessarily incurred.”

When requests for investigative, expert, or other services in excess of the statutory limits are received, circuit court judges should closely examine the need for the services, especially when approval for advance fees is requested. Judges may wish to ask the Office of Indigent Defense to participate in the hearing on the request for additional fees to contribute information concerning fees awarded in similar cases.

In determining whether additional fees are reasonable and necessary, judges should require the requesting party to show that there is a substantial factual basis for the contention the party seeks to prove by the use of the services and that the services are integral to the building of an effective defense . In addition, where the party seeks funding for services of a particular provider, the party should be required to show why the services must be provided by that particular provider.