BENTONVILLE — Benton County prosecutors are challenging the reimbursement of $73,044.85 in attorney fees requested July 16 by County Judge Dave Bisbee.
“The bill submitted is outrageous,” Prosecuting Attorney Van Stone said Wednesday.
Bisbee was on trial in June for three misdemeanor charges stemming from his decision to hire his then-company, Valley Homes, to do remodeling at the county collector’s and assessor’s offices in Rogers. Gary Wierman, Bisbee’s longtime construction superintendent and then-vice president of Valley Homes, did the remodel.
State law says if a county employee or official is put on trial and acquitted, that person shall be awarded reasonable legal fees.
Asa Hutchinson, Bisbee’s attorney, contended the key word in the law is “shall.” He contends in his response to Stone filed Wednesday afternoon that Stone was aware of the law before he decided to prosecute Bisbee.
“The decision to prosecute this case was made with full awareness of the prosecuting attorney that an acquittal would mean that the taxpayers would have to pay the defense legal bills,” Hutchinson said in his response.
The prosecutor’s first battle plan is to have Special Judge John Walton Cole look at the acquittal issue stated in the law. Cole had been appointed to hear the case after the six Benton County circuit judges recused from the case.
A jury found Bisbee not guilty on two of the three charges, but could not reach a decision on the charge accusing Bisbee of using his office or the influence created by his office to advance the economic interests of an associate. Prosecutors later dismissed that charge.
The law states attorney fees are entitled in cases of acquittal and does not mention the event of a dismissal.
Stone contended the court should examine the law further to see if it should include cases where charges are dropped.
Stone also requested the court look at the word “reasonable.” Stone’s response to Bisbee’s petition for attorney’s fees dissects the $73,000 request.
“It is completely unreasonable,” Stone said.
Hutchinson said his fees are comparable to those charged by other area attorneys with his level of experience.
Court documents filed by Hutchinson list his hourly rate at $660. Hutchinson charged Bisbee $400 per hour. Two other attorneys helped Hutchinson with Bisbee’s case. Hutchinson’s son Asa Hutchinson III charged $200 an hour and Duane A. Kees billed $175 an hour.
All three were in court during Bisbee’s four-day trial at a total rate of $775 per hour.
The elder Hutchinson said his fee of $400 an hour is reasonable.
“What I’m charging is normal,” Hutchinson said. “It might be on the high end of things, but it is reasonable.”
The prosecutor’s response stated Bisbee’s case did not require the support of Kees and the younger Hutchinson.
The elder Hutchinson disagreed.
“It would have been akin to legal malpractice for the defense to use only one attorney when the prosecution had three attorneys supported by investigators and a large staff, all working to convict the defendant and remove him fromoffice,” Hutchinson wrote in his response.
Prosecutors claimed Asa Hutchinson III accumulated many of his billable hours during the four-day trial, but he did not conduct any cross examination or direct examination of witnesses. According to the response, the younger Hutchinson rarely sat at the counsel table and sometimes sat in the audience. He was absent during half of the trial on June 2 and during a portion of jury deliberations on June 4, the response states.
Hutchinson said his son did not bill for hours he was not working on Bisbee’s case.
Hutchinson claimed in the petition for attorneys fees filed earlier that his firm spent a significant amount of time defending Bisbee and lost a major case in the process.
However, the prosecutor’s response questioned whether Bisbee’s case created any hardship for Hutchinson’s firm and whether the practice lost a major case because of the time devoted to Bisbee’s case.
Stone detailed the amount of time spent working on Bisbee’s case by breaking it down by the day.
Hutchinson spent an average of less than three hours a day working on Bisbee’s case between April 22 and May 20. Hutchinson’s son spent an average of 30 minutes a day working on Bisbee’s case during the same time frame. Kees spent an average of less than one hour a day working on the case during that time, Stone’s response states.
“The Asa Hutchinson Law Group did not devote the ‘vast majority’ of its legal resources to [Bisbee’s] case for ‘over a month’ as is alleged in the petition for attorney’s fees,” Stone wrote in his response.
Hutchinson’s law firm worked 239 hours between April 22 and June 4 on Bisbee’s case.
“Two hundred hours over a month’s time period is a significant amount of time for a law firm with three lawyers,” Hutchinson said.
Ro ge rs atto rn ey A n - drew Miller said he believes Hutchinson’s fee is reasonable considering the resources devoted to the Bisbee case, according to court documents.
Miller stated in court documents that Hutchinson asked him to review the fee. Miller believes Hutchinson’s hourly rate of $400 is consistent with the fees charged by other attorneys with Hutchinson’s experience.
Hutchinson also included the affidavit of Fayetteville attorney John C. Everett.
Everett states in his affidavit that he reviewed Hutchinson’s bill and found it reasonable.
Everett said he charges $400 an hour and has for years.
Prosecutors asked four attorneys - Eldon Cripps, Doug Norwood, Joel Huggins and W.H. Taylor - to review Hutchinson’s bill. All of them described the $73,000 bill as unreasonable.
Cripps said he has never heard of a criminal defense attorney in Benton County charging $400 per hour or a fee in excess of $73,000 in a misdemeanor case.
Norwood said he could not imagine any lawyer charging more than $25,000 for defending a misdemeanor criminal case in Benton County.
Taylor states in his affidavit he would have provided Bisbee with two quotes: $10,000 to $15,000 if the case was settled and $25,000 to $30,000 if the case went to trial.
Hutchinson said he plans to file additional documents supporting his legal fees before the Aug. 10 hearing before Cole.
Northwest Arkansas, Pages 8 on 07/29/2010