In Arnold v. Kemp, 306 Ark. 294 (1991), the Arkansas Supreme Court struck down statutory caps on the fees paid to court-appointed defense attorneys, ruling that a lawyer’s professional services are property and that forcing counsel to work for a fraction of their value amounted to a taking without just compensation.1Justia. Arnold v. Kemp, 306 Ark. 294
The Fee Caps at the Center of the Case
Arkansas Code section 16-92-108 set the ceilings. In a capital murder case, an appointed attorney could be paid no more than $1,000 in fees, with investigative expenses capped at $100.2Justia. State v. Post, 311 Ark. 510 Lawyers appointed to a complex murder defense challenged those limits, arguing that the evidence and preparation a capital case demanded could not be handled within the statutory ceiling without absorbing a substantial personal loss.
The dispute framed a straightforward conflict. The state wanted to control what it spent on indigent defense. The attorneys argued that the ceilings shifted the cost of a constitutional obligation onto private practitioners.
Why the Caps Were an Unconstitutional Taking
The court grounded its analysis in the Fifth Amendment’s prohibition on taking private property without just compensation, applied to the states through the Fourteenth Amendment. The pivotal question was whether an attorney’s time and expertise counted as property at all. The court held that they do: a lawyer’s services and specialized knowledge belong to the lawyer.1Justia. Arnold v. Kemp, 306 Ark. 294
From that premise, the outcome followed. Compelling an attorney to try a capital case for a fee capped at $1,000 took that property without paying its fair value, and the court found the statute unconstitutional on that basis.1Justia. Arnold v. Kemp, 306 Ark. 294
The Sixth Amendment and the State’s Duty
The court also read the statute against the Sixth Amendment right to effective assistance of counsel.3Constitution Annotated. Effective Assistance of Counsel Providing a lawyer to defendants who cannot afford one, in cases where imprisonment is imposed or a suspended sentence is given, is a state obligation.4Constitution Annotated. Appointment of Counsel The court reasoned that the state cannot satisfy that duty by pushing its cost onto individual attorneys through underfunded appointments. When resources run out before the work is done, the defense suffers, and the right to counsel becomes hollow.
What Replaced the Caps
The Arkansas Supreme Court later invalidated the entire compensation statute in State v. Post, 311 Ark. 510 (1993), because the caps were central to how the scheme operated.2Justia. State v. Post, 311 Ark. 510 Fixed ceilings gave way to a reasonable-compensation standard, with judges weighing the circumstances of each appointment.
Factors the courts consider include:
- The experience and ability of the attorney
- The complexity and difficulty of the legal issues involved
- The time and labor required to handle the matter properly
- The typical fees charged in that community for similar legal services
- The overhead expenses the attorney must pay to maintain their practice
Detailed time records, covering research, interviews, and court appearances, anchor the analysis. The point of the individualized review is to keep appointed lawyers from absorbing a personal loss while still leaving the state in control of what a reasonable fee looks like for a given case.