Who pays a private prosecutor appointed after a Louisiana district attorney is recused?

Plain-English summary

When a district attorney was recused from a criminal case, the trial judge could appoint a qualified private lawyer to serve in that case. Jefferson Parish's district attorney's office asked whether that lawyer could be paid when the prosecution-cost provision named only a district attorney or the attorney general. In Opinion 03-0172, the AG answered yes: the appointee acted in place of the recused district attorney and had the same powers for that case.

The AG treated the private lawyer's fee as part of the cost of prosecution payable by the parish where the proceeding took place. With no case law specifically fixing a rate, the opinion assigned the reasonableness decision to the appointing court, considering the charge and the hours it would reasonably require.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at issuance

Parish officials

The opinion counted an appointed private prosecutor's fee among prosecution costs under Article 683.1 and assigned payment to the parish in which the proceeding took place.

Judges and appointed prosecutors

Article 682 let the trial judge appoint a qualified lawyer of the district after the district attorney's recusal. The AG said the appointing court should decide a reasonable fee in the particular case, considering the type of charge and the hours reasonably needed.

Common questions

Q: Could the appointed lawyer be paid even though Article 683.1 named the district attorney and attorney general?
A: Yes. The AG read Articles 682 and 683.1 together and treated the private appointee as acting as district attorney for that one case.

Q: Which parish bore the fee?
A: The opinion assigned the prosecution cost to the parish where the proceedings took place.

Q: Did the AG set an hourly rate for the lawyer?
A: No. It said the appointing court should determine reasonableness in the particular judicial district, taking account of the charge and the hours it would reasonably require.

Background and statutory framework

The office quoted Article 682 as giving the trial judge a choice after a district attorney was recused: appoint a qualified district lawyer outside the recused district attorney's staff, or notify the attorney general to designate a replacement. It quoted Article 683.1 on reimbursement of prosecution and investigation costs by the parish of original jurisdiction and venue. The opinion resolved the payment question by reading the appointed lawyer's case-specific powers under Article 682 together with the cost rule.

Citations and references

Provisions quoted: C.Cr.P. Art. 682; C.Cr.P. Art. 683.1.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0172

Original opinion text

DEPARTMENT OF JUSTICE
P.O. BOX 94095
BATON ROUGE, LA 70804-9095
RICHARD P. IEYOUB CRIMINAL DIVISION Telephone:
ATTORNEY GENERAL
(225) 342-7552
FAX:
JUL 1 1 2003
(225) 342-7893
OPINION 03-0172

     John Molaison, Jr.                              22       DISTRICT & PROSECUTING ATTORNEYS

Executive Assistant District Attorney C.Cr.P. Art. 682; C.Cr.P. Art. 683.1

Jefferson Parish District Attorney’s Office It is permissible to pay a private attorney appointed pursuant to
Gretna, Louisiana 70053
Article 682. The fees of that private attorney are part of the
cost of prosecution under Amcle 683.1 and must be paid from the parish in which the proceedings take place. The decision as to reasonableness of fees should be made by the appointing court, considering such factors as the type of charge, and the
Dear Mr. Molaison: number of hours such a charge would reasonably require.

This office is in receipt of your opinion request containing the following questions:

Is it permissible to pay a private attomey appointed pursuant to Code of Criminal Procedure article 682 when Article 683.1 authorizes payment only to a district attorney or attorney general?

2. Does the appointed private attorney become the "district attorney" authorizing payment pursuant to Article 683.1 ?

3. Are attorneys or professional fees an un-reimbursed court cost under article 683.1?

4. If attorney fees are reimbursable under 683.1, how is a reasonable rate established?

According to Code of Criminal Procedure article 683.1, "Whenever the district attorney of the parish of original jurisdiction and venue is recused or requests another district attorney or the attorney general to undertake a prosecution or an investigation reasonably related to a possible prosecution and such other district attorney or the attorney general actually undertakes same, the costs of such prosecution and investigation shall be borne by the parish of original jurisdiction and venue, which shall reimburse such other district attorney or the attorney general therefore".

Louisiana Code of Criminal Procedure article 682 states that, "When a district attorney is recused, or recuses himself, the trial judge shall either appoint an attorney at law of that district, who has the qualifications of a district attorney and is not an assistant to the recused district attorney, to act in the place of the district attorney in the case, or shall notify the attorney general in writing of the recusation. In the latter instance, it shall be the duty of the attorney general to appoint a member of his staff or a district attorney of another district to act in the place of the recused district attorney. The substitute appointed for the recused district attorney shall have all powers of the recused district attorney with reference to the case."

Page 2

John Molaison, Jr.
OPINION 03-0172
Page 2

Construing the language of the above articles together, we conclude the following:

1) We believe that it is permissible to pay a private attorney appointed pursuant to Article 682, because that private attorney is, in essence, a district attorney as it relates to that specific case. Under this article, the private attorney acts in the place of the recused district attorney and has all of the same powers with reference to the case in which he or she is appointed, and therefore, is a "district attorney" for purposes of Article 683.1.

2) Further, when the option of appointing a private attorney -- rather than contacting the attorney general -- is exercised, the fees of that private attorney are part of the cost of prosecution under Article 683.1 and must be paid from the parish in which the proceedings take place.

3) As to what constitutes a reasonable rate of compensation, there is no case law specifically addressing the issue, and therefore the decision as to reasonableness in that particular judicial disNct should be determined by the appointing court, considering such factors as the type of charge, and the number of hours such a charge would reasonably require.

I trust that this opinion has satisfactorily answered your questions. If you require further assistance, please call. With best regards, I remain

Very Truly Yours,

RICHARD P. IEYOUB
Attorney General

Attorney General
SBS,Jr./et/jy