The opinion of the court was delivered by: Grady, District Judge.
MEMORANDUM DECISION AND ORDER
The question presented here is whether a judge should take
action, sua sponte, when it appears that a defendant in a
criminal case has been charged a clearly excessive fee by his
privately retained attorney. A statement of the facts will put
the matter in focus.
The indictment names two defendants, Steven A. Vague and
Gerald E. McDermott, Jr., both of whom have now been sentenced
after pleas of guilty. Vague received 90 days on work release,
followed by five years probation, and McDermott received four
years probation under the Youth Corrections Act, 18 U.S.C. § 5010.
The fee question arises only in the case of the
defendant Vague.
The indictment, which concerns the possession of freight
stolen at O'Hare International Airport in Chicago, is in five
counts. Count I charges that Vague and McDermott violated
18 U.S.C. § 371, the federal conspiracy statute, by conspiring to
receive and possess various items of freight which were stolen
from interstate and foreign air shipments moving through
O'Hare, in violation of 18 U.S.C. § 659. It was charged that
the goods were stolen from the possession of AM Air Freight,
Inc. and consisted of such things as leather coats, fur coats,
cameras, and watches. The remaining four counts of the
indictment alleged substantive violations of § 659, charging
the defendants with unlawful possession of specific stolen
items on particular dates.
The facts of the case, as disclosed by the defendants'
admissions when they entered their pleas of guilty and by the
subsequent presentence investigation conducted by the
Probation Office, are simple. Steven Vague, age 23, worked as
a truck driver for AM Air Freight Company, a trucking company
which carried freight to and from O'Hare Airport. The company
was owned by Vague's parents. The other defendant, Gerald E.
McDermott, Jr., age 22, was a partner in Sunrise Air Freight,
a similar business. In April 1980, McDermott was arrested in
Carpentersville, Illinois, for unlawfully
discharging a firearm. McDermott's gun was confiscated and
Officer Dwight Willenius of the Carpentersville Police
Department told him the gun might not be returned. McDermott
volunteered that if he could get the gun back they might be
able to work something out, since there was always "a lot of
stuff floating around the airport." Thereafter, McDermott and
Willenius discussed the possibility of obtaining stolen
cameras. McDermott obtained some stolen cameras from Steven
Vague and asked Willenius if he was interested. Willenius said
he would have to check with "Frank S." Shortly thereafter,
McDermott, Willenius and Frank S. had a meeting, at which it
was agreed that Frank S. would "get rid of" anything McDermott
could obtain. McDermott then introduced Vague to Willenius and
Frank S. On August 6, 1980, McDermott obtained three fur coats
from Vague and sold them to Frank S. for $125.00 each. These
coats were stolen out of a shipment from Poland which had been
picked up by AM Air Freight at O'Hare Airport for delivery to
the consignee in Chicago. Thereafter, during the summer of
1980, McDermott and Vague sold to Frank S. various items
described in the indictment, all of which had been stolen from
foreign shipments handled by AM Air Freight.
"Frank S." was, unknown to Vague and McDermott, an agent of
the United States Customs Service. He was also wired for sound
during many of his conversations with the defendants. Not
surprisingly, these conversations are highly incriminating to
the defendants. On one tape, for instance, Steven Vague is
heard to say, "If there's ever anything taken off that
airport, it does not go by my vision. I've heard about
everything. . . . That's why I'm out there. I'm not out there
to make a living, I'm out there to set things up."
On December 1, 1980, Vague invited Frank S. to inspect some
merchandise at Vague's residence. The agent went there and
Vague displayed 75 leather coats and some photographic lenses
and digital watches, all of which had been stolen from foreign
shipments. At this point, Vague was placed under arrest by
other agents who descended upon the premises. The items in his
possession at that time were seized and are the subject of
Count V of the indictment.
The next day Officer Willenius telephoned McDermott and told
him to turn himself in, along with any stolen merchandise he
possessed. Pursuant to these instructions, McDermott
surrendered at the office of the Customs Service and turned in
some additional stolen articles.
On December 2, 1980, the defendant Vague was brought before
a United States magistrate for the purpose of setting bail.
Attorney Robert DeMeo, whose fees are in question here, filed
his appearance on behalf of Vague at that time. Vague, who
lives with his parents and has no prior criminal record, was
released on his own recognizance. The case was continued to
December 9, 1980, for a probable cause hearing.
On December 9, the magistrate conducted a preliminary
hearing and made a finding of probable cause. The defendants
were held to the district court.
The indictment was returned on December 23, 1980, and the
defendants were arraigned on January 9, 1981. Both defendants
entered pleas of not guilty. The parties were ordered to hold
a pretrial conference pursuant to our local Rule 2.04 (a
self-executing rule which requires the parties to turn over
all discovery materials which would be appropriate under
Fed.R. Crim.P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215) within 5 days after arraignment. The
order also provided that any pretrial motions were to be filed
by January 19, 1981, and the case was set for a status report
on February 3, 1981.
On January 21, 1981, Attorney DeMeo filed five separate
motions on behalf of the defendant Vague. They were as
follows:
2. "Motion for Discovery and Inspection." This was a
boilerplate motion seeking discovery of the items the
government is required to turn over pursuant to Rule 2.04,
such as evidence favorable to the defendant and any written
statement of the defendant. The motion also requested items
the government is rarely required to produce and are routinely
denied, e. g., a written list of the names and addresses of all
prospective government witnesses.
3. "Motion to Inspect Grand Jury Minutes." The principal
purpose of this motion, consisting of a little over one page,
was ". . . to determine whether there was in fact the
requisite number of Grand Jurors concurring in the findings of
the true bill under Rule 6(e) of the Federal Rules of Criminal
Procedure. . . ." The motion set forth no grounds for
believing that there was any irregularity in the Grand Jury
proceeding, nor any other reason which would justify making an
exception to the usual rule of Grand Jury secrecy.
4. "Motion to Dismiss Indictment." The best way to describe
this motion is to quote it in its entirety:
NOW COMES THE DEFENDANT, STEVEN A. VAGUE, by his
Attorney, ROBERT A. DE MEO, and moves this Court,
pursuant to Rule 12 of the Federal Rules of
Criminal Practice (sic) to dismiss the indictment
in the instant case and in support thereof states
as follows:
1. The indictment and each count thereof fails
to inform the Defendant, STEVEN A. VAGUE, of the
nature and cause of the accusations against him
with the certainty required by law.
2. The indictment and each count thereof is
void as it merely states conclusions and does not
advise the Defendant, STEVEN A. VAGUE, of the
acts he allegedly committed to constitute the
offense charged.
3. The indictment and each count thereof fails
to charge the commission of acts by this
Defendant, STEVEN A. VAGUE, constituting any
offense against any Statute of the United States
with the certainty required by law.
4. The indictment and each count thereof is
insufficient and violates Rule 7(c) of the
Federal Rules of Criminal Procedure in that it
fails to set forth in a plain, concise and
definite manner the essential facts constituting
the offenses attempted to be charged.
5. Specifically, Count 1 of the Indictment is
defective because it fails to allege that the
objects of the conspiracy to be (sic) an offense
against the United States of America.
6. Counts 2, 3, 4 and 5 fail to set forth with
particularity where, when or how Defendant,
STEVEN A. VAGUE, wilfully and knowingly violated
Federal Law and how Defendant managed,
established or condicted (sic) alleged unlawful
activity.
The indictment in this case was more than sufficient to meet
the pleading requirements of Rule 7(c)(1), Fed.R.Crim.P.,
which states that an indictment "shall be a plain, concise and
definite written statement of the essential facts constituting
the offense charged. . . ." Count I alleges the conspiracy in
more detail than would be necessary, and each of the
substantive counts alleges in specific terms that on a
particular date the defendants possessed described property
which had been stolen from foreign shipments, knowing it to
have been stolen. The motion to dismiss was entirely specious.
That there was obviously no argument to be made in support of
the motion may explain why Mr. DeMeo ignored our local
criminal rule 2.05(c), which requires that all contested
motions be "accompanied by a short, concise brief in support
of the motion, together with citations of authority." No brief
was filed in support of any motion.
It may be significant that none of these motions was ever
served on the government. Mr. DeMeo simply filed them in the
Clerk's office. When the attorney for the government appeared
at the status call on February 3, he was surprised to learn,
when
informed by the court, that motions had been filed. Mr. Louis
Aldini, an associate of Mr. DeMeo, appeared on that date
because Mr. DeMeo was out of town. The status call as to the
defendant Vague was continued until February 5. At the status
call of February 3, the defendant McDermott entered a plea of
guilty to Counts I and IV of the indictment. The plea was
pursuant to a written agreement whereby the government
undertook to dismiss the remaining counts against McDermott,
and, for his part, McDermott agreed to cooperate with the
government in any investigation of the case. His cooperation
was to "include his truthful testimony if called upon to
testify, before any federal grand jury and United States
District Court proceeding." The case as to McDermott was
referred to the Probation Office and set for sentencing on
March 13, 1981. Trial of the defendant Vague was set for
February 17, 1981.
On February 5, the case was called again as to the defendant
Vague. Mr. DeMeo stated that all discovery he desired had been
furnished by the government. The three discovery motions, as
well as the motion to dismiss the indictment, were thereupon
denied.
On February 11, the government filed a motion to continue
the trial date for defendant Vague from February 17 to March
16 due to the engagement of government counsel. The government
also requested that the time the defense motions had been
pending — January 21 to February 5 — be excluded under the
Speedy Trial Act. The motions were allowed without objection.
By March 16, the parties had entered into a written plea
agreement for Vague similar to that of McDermott, and on that
date Vague entered a plea of guilty to Counts I and V of the
indictment. His case was referred to the Probation Office for
a pre-sentence investigation and sentencing was set for April
23.
It is customary in this district for the presentence report
of the Probation Office to describe the defendant's assets and
liabilities, including, among the latter, the amount of the
fee he is paying his attorney. The presentence report in this
case disclosed that Mr. DeMeo's fee was $12,000.00. The
defendant had paid $11,000.00 and was intending to pay the
remaining $1,000.00.
When the case was called for sentencing on April 23, 1981,
I asked Mr. DeMeo to explain the basis for his $12,000.00
charge. He responded that when he had originally set the fee
he had anticipated the case would go to trial. I inquired
whether he believed that some adjustment was appropriate in
view of the fact that there had been no trial. He replied that
he did. I asked how much Mr. DeMeo thought the fee should be
reduced, and he responded that he had not given the matter any
thought. I then indicated that he should give the matter some
thought and discuss it with his client and the client's father
(who, it developed, had actually advanced the money).
Sentencing was continued to May 12.
On May 12, Mr. DeMeo reported that he had decided to reduce
the fee to $8,000.00. I stated that I believed $8,000.00 was
too much for a plea of guilty and that a further reduction was
necessary. Mr. DeMeo replied, "Your Honor, that is a matter
between my client and myself," thus succinctly stating the
issue with which this opinion deals. I expressed the view that
the court has a responsibility in the matter and then
proceeded to make inquiry as to the amount of time Mr. DeMeo,
had spent on the case. All of the knowledgeable persons were
before the court — Mr. DeMeo, the defendant, the defendant's
father and the Assistant United States Attorney who had handled
the case from the outset — and they all answered the questions
put to them.
Mr. DeMeo stated that he had spent ten or twelve hours in
conferences with his client, Steven Vague. Steven Vague said
that he believed he had spent about eight hours in conference
with Mr. DeMeo, and Steven's father said he had spent about 1
1/2 hours in conference with the attorney.
Mr. DeMeo said he had spent 3 to 4 hours in connection with
the appearances before the magistrate for the setting of bond
and the preliminary hearing. There were six appearances before
the district court, and my own estimate is that this would
have involved another 3 to 4 hours. No estimate was given for
the time spent preparing the four pretrial motions referred to
above. Mr. DeMeo stated that he had no time records and that
his estimates were necessarily approximate. At the conclusion
of this colloquy, I took the matter of Mr. DeMeo's fee under
advisement and proceeded to impose sentence.
RULE 2-106 OF THE ILLINOIS CODE OF PROFESSIONAL
RESPONSIBILITY
The value of legal services is not, of course, a simple
function of the time spent by the attorney. Other factors are
involved, and I turn now to a discussion of whether the
$8,000.00 fee is excessive when considered in the light of all
relevant criteria.
The applicable standards for determining the propriety of
Mr. DeMeo's fee are set forth in the Illinois Code of
Professional Responsibility, which has been made a part of the
disciplinary rules of the Illinois Supreme Court. These rules,
derived largely from the disciplinary rules drafted by the
American Bar Association and the Illinois State Bar
Association, were adopted as rules of the Illinois Supreme
Court effective July 1, 1980. Mr. DeMeo was admitted to the
Illinois Bar in 1970 and enjoys his privilege to practice in
this court by reason of his Illinois admission. This court has
adopted no independent disciplinary standards.
Rule 2-106 of the Illinois Code of Professional
Responsibility ("DR 2-106") ...