Richland County H&HS v. D. M. K.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 14, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP2190 Cir. Ct. No. 2014JC34

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE INTEREST OF K.L.M., A PERSON UNDER THE AGE OF 18:

RICHLAND COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

D.M.K.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Richland County:
LISA A. MCDOUGAL, Judge. Affirmed in part; reversed in part and cause
remanded with directions.
No. 2022AP2190

¶1 GRAHAM, J.1 D.M.K. is the mother of the child who was
determined to be in need of protection and services in this CHIPS proceeding. She
appeals a circuit court order that terminated the appointment of adversary counsel
to represent her in the proceeding, and that ordered payment of attorney fees in an
amount that was less than counsel requested for work performed between
October 2021 and November 2022. I conclude that the court did not err when it
terminated counsel’s appointment, but that the court did err with respect to
counsel’s fee request. I therefore affirm the portion of the order that terminated
the appointment; I reverse the portion of the order that addressed the payment of
counsel’s fees; and I remand for additional proceedings to address the amount of
fees that adversary counsel is entitled to for work performed between
October 2021 and November 2022.

BACKGROUND

¶2 D.M.K. is the mother of K.L.M. K.L.M. has severe autism, and both
of his parents have mild cognitive disabilities.

¶3 In 2014, when K.L.M. was eight years old, Richland County Health
and Human Services (the “Department”) commenced the CHIPS proceeding,
alleging that K.L.M.’s parents were unable to provide for his needs. In addition to
appointing a guardian ad litem to represent K.L.M.’s interests, the circuit court,
the Honorable Andrew Sharp presiding, appointed two attorneys as “adversary
counsel” to represent K.L.M.’s parents. See State v. Tammy L.D., 2000 WI App
200, ¶24, 238 Wis. 2d 516, 617 N.W.2d 894 (“[T]he juvenile courts of this state

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version.

2
No. 2022AP2190

have the discretionary authority on a case-by-case basis to appoint counsel for a
parent in a CHIPS case.”); Joni B. v. State, 202 Wis. 2d 1, 549 N.W.2d 411
(1996) (same). Since 2014, the attorney fees for K.L.M.’s guardian ad litem and
the court-appointed adversary counsel representing his parents have been borne by
Richland County. See State v. Dean, 163 Wis. 2d 503, 515-16, 471 N.W.2d 310
(Ct. App. 1991) (when the court appoints counsel other than a state public
defender, the county bears counsel’s costs).

¶4 K.L.M. was found in need of protection or services in 2015, and he
has primarily been in institutional placement since then. There have been ongoing
disputes about custody and placement and whether K.L.M. has been receiving
proper care.

¶5 In 2019, the court-appointed adversary counsel who had been
representing D.M.K. withdrew from the case, and Attorney Theresa Anne Carey
was appointed as adversary counsel. Like the other attorneys appointed to work
on this case, Carey regularly submitted petitions requesting payment of attorney
fees and costs, and the circuit court routinely issued orders directing Richland
County to pay her bills.

¶6 Judge Sharp retired in 2022, and in June, Reserve Judge Jennifer
Day presided over the circuit court hearing to address a permanency plan for
K.L.M. During the hearing, the circuit court mentioned that it would soon be time
to consider options for guardianship and placement for the following year, when
K.L.M. would turn 18. At one point during the hearing, the court questioned
whether K.L.M.’s parents should continue to be represented by court-appointed
adversary counsel. The court raised concerns about the expense to the county and
noted, among other things, that there was “really no threat of termination of

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No. 2022AP2190

parental rights” under the circumstances. The attorney representing the
Department argued that, to the extent that “the reason for retaining counsel for the
parents is to look out for [K.L.M.’s interests], … that’s the guardian ad litem’s
role,” and that the existing guardian ad litem had been very proactive.

¶7 After a discussion with the parties, the circuit court terminated the
appointment of adversary counsel for K.L.M.’s father, but kept Attorney Carey’s
appointment to represent D.M.K. in place. The court stated that “there aren’t
really the strong identified reasons for the county to provide counsel for [D.M.K.]
under Joni B., [202 Wis. 2d 1] or Tammy L.D., [238 Wis. 2d 516].” However, the
court reasoned that Carey had played an important role in maintaining the bond
between mother and child and, “perhaps, [counsel] is necessary just to ensure that
there is that minimal regular reoccurring contact.” The court stated: “I’m not
going to dismiss you[, Attorney Carey]. But I do need you to temper, and be
cognizant of your obligations as legal counsel for [D.M.K.], as opposed to being a
sounding board for [D.M.K.].”

¶8 In August 2022, following the permanency hearing, there were two
events that are pertinent to the issues on appeal. First, Attorney Carey filed a
petition for payment of a total of $14,681.24 in adversary counsel fees and costs,
along with a spreadsheet identifying the date, activity, time, and amount of legal
services performed between October 2021 and June 2022. Second, following
Judge Sharp’s retirement, the incoming circuit court judge, the Honorable Lisa
McDougal, was assigned to the case.

¶9 Shortly thereafter, the circuit court scheduled a hearing to “address
[the] status of the case and attorney fees.” Attorney Carey responded by
submitting a letter to the court stating that, to her knowledge, there had been no

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dispute as to the amount of work she had performed on the case, and expressing
concerns about the delay in payment.

¶10 During the scheduled hearing on November 7, 2022, the circuit court
indicated that it had decided to terminate Attorney Carey’s appointment. As
discussed in detail below, the court pointed to the number of attorneys that had
been involved in the CHIPS proceeding and the extent of the expenses that had
been borne by the county to date. The court indicated that, although it did not
question Judge Sharp’s decision to appoint counsel to represent the parents at an
earlier stage of the proceeding, the court could no longer justify the expense given
that reunification was no longer a goal of the proceeding, the current guardian ad
litem had taken a “collaborative approach” and was working well with the parents,
and K.L.M. was nearing adulthood. The court also indicated that “some of
[Carey’s] billing has been excessive.” After terminating Carey’s appointment, the
court directed the guardian ad litem to continue to represent K.L.M.’s best
interests, and to work directly with both of K.L.M.’s parents.

¶11 Attorney Carey did not specifically object to the circuit court’s
decision to terminate her appointment, nor did she argue that the court was
required to make any particular findings before making its decision. Instead,
Carey indicated that, notwithstanding the termination of her appointment, she
would continue to represent D.M.K. on a pro bono basis. For her part, D.M.K.
expressed her gratitude and appreciation for the legal services and support that
Carey had provided, and said that she did not “want that [support] ripped from
[her].” D.M.K. said that it “would be really great … if [Carey] could stay with
me.” In response, the court stated that, although it could not justify continuing the
appointment at county expense, Carey had expressed an intention to continue
representing D.M.K. on a pro bono basis.

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No. 2022AP2190

¶12 Following the hearing, Attorney Carey filed a second petition for
payment of adversary counsel fees, which requested an additional $6,452.24 in
fees and costs, and a spreadsheet identifying the date, activity, time, and amount of
legal services from July through November 2022. Along with the second fee
petition, Carey filed a letter that provided some additional information about the
services that she had provided starting in October 2021, which were included in
the first fee petition.

¶13 On November 15, 2022, the circuit court issued the order that
terminated Attorney Carey’s appointment. The order also directed Richland
County to pay Carey $13,948.10, which was $7,185.38 less than the total of
$21,133.48 that Carey had requested in the petitions. As discussed in greater
detail below, the court stated that it had reduced the amount of the payment
because the requested amount was “excessive” and included “fees generated for
work that lay beyond the scope of the attorney’s appointment.” D.M.K., who
continued to be represented by Attorney Carey on a pro bono basis, appealed the
November 15, 2022 order.2

2
This appeal was placed on hold pending another appeal by D.M.K. from the circuit
court’s denial of D.M.K.’s petition for waiver of fees and costs associated with this appeal.
Richland County HHS v. D.M.K., No. 2023AP454, unpublished op. and order (WI App Feb. 8,
2024). Briefing ensued upon disposition of that appeal.

Separately, the court-appointed guardian ad litem filed a letter with the clerk of the court
of appeals that requested guidance on her involvement in this appeal, and asserted that she does
not believe that “there is a ‘best interest of the child’ issue before the [c]ourt.” I appreciate
receiving this letter, which I construe as consistent with the guardian ad litem obligations
described in Marotz v. Marotz, 80 Wis. 2d 477, 488, 259 N.W.2d 524 (1977).

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No. 2022AP2190

DISCUSSION

¶14 On appeal, D.M.K. challenges the circuit court’s decision to
terminate Attorney Carey’s appointment, and its decision to reduce Carey’s fees.
For reasons I now explain, I conclude that the court did not err when it terminated
Carey’s appointment, but that it erred in the process of reducing Carey’s fees.

I. Termination of Appointment

¶15 D.M.K. acknowledges that she did not have a constitutional or
statutory right to counsel in this CHIPS proceeding, and that it was within the
circuit court’s discretion to terminate Attorney Carey’s appointment as adversary
counsel. However, according to D.M.K., the circuit court “did not exercise
discretion in the manner contemplated by the supreme court in Joni B.,” 202 Wis.
2d 1, and Tammy L.D., 238 Wis. 2d 516.

¶16 Portions of D.M.K.’s argument on this topic are inconsistent with the
applicable standard of review. For example, D.M.K. asserts: “Judge Sharp and
Judge Day, both familiar with the case, properly determined that due process
required continuing appointment of court-appointed counsel.” To the extent that
D.M.K. means to argue that the only determination that Judge McDougal could
reasonably have made was to continue Attorney Carey’s appointment—either
because due process required it or because other judges exercised their
discretionary authority in favor of an appointment—I disagree. D.M.K. does not
cite any legal authority to support the proposition that the termination of counsel’s
appointment violates due process under these facts, and the fact that other judges
exercised their discretion in favor of the appointment does not make this judge’s
decision to terminate the appointment erroneous. Hartung v. Hartung, 102 Wis.
2d 58, 66, 306 N.W.2d 16 (1981) (“It is recognized that a [circuit] court in an

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No. 2022AP2190

exercise of discretion may reasonably reach a conclusion which another judge or
another court may not reach.”).

¶17 At other times, D.M.K. argues that the circuit court erroneously
exercised its discretion because it failed to make findings under Joni B., which
directs the court to “memorialize its findings and rationale on the record to
facilitate appellate review.” Joni B., 202 Wis. 2d at 18. This argument fails for
reasons I now explain.

¶18 First, D.M.K. has arguably forfeited the argument that the circuit
court was required to make any particular findings because she did not raise that
argument in the circuit court. Shadley v. Lloyds of London, 2009 WI App 165,
¶25, 322 Wis. 2d 189, 776 N.W.2d 838 (under the forfeiture rule, “issues not
presented to the [circuit] court will not be considered for the first time at the
appellate level”). The forfeiture rule enables a court “to avoid or correct any error
with minimal disruption of the judicial process, eliminating the need for appeal.”
State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612 (footnote
omitted).3 There may be good reasons to apply the forfeiture rule in a situation
like this—had D.M.K. raised her argument that particular findings were required
during the circuit court proceeding, the court could have addressed that argument
and might have made the findings that D.M.K. now asserts were required,
potentially eliminating the need for this appeal.

3
The forfeiture rule also “gives both parties and the circuit court notice of the issue and a
fair opportunity to address the objection,” “encourages attorneys to diligently prepare for and
conduct trials,” and “prevents attorneys from ‘sandbagging’ opposing counsel by failing to object
to an error for strategic reasons and later claiming that the error is grounds for reversal.” State v.
Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612 (footnote omitted).

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No. 2022AP2190

¶19 Even so, D.M.K. asks me to overlook the forfeiture rule because the
circuit court did not give prior notice that it was considering terminating
Attorney Carey’s appointment, and Carey was “taken off guard” during the
hearing. Even if I were to overlook the forfeiture rule on that basis, I would reject
D.M.K.’s argument based on the applicable case law and the record that the court
made in this case.

¶20 In Joni B., the court emphasized that a decision regarding the
appointment of adversary counsel should be “individualized” and “will differ from
case to case.” Joni B., 202 Wis. 2d at 18. The Joni B. court stated that “a circuit
court should only appoint [adversary] counsel after concluding that either the
efficient administration of justice warrants it or that due process considerations
outweigh the presumption against such an appointment.” Id.; see also Tammy
L.D., 238 Wis. 2d 516, ¶¶17-22 (discussing Joni B.).

¶21 Although D.M.K. asserts that the court failed to “memorialize its
findings and rationale on the record,” the transcript of the hearing tells a different
story. The court thoroughly and thoughtfully explained its reasons for terminating
Attorney Carey’s appointment as follows:

As I was getting up to speed in this case, … I was
given submissions of attorney bills. I had to take a little
step back, and look at what this case was costing the
County.

It is not an inexpensive matter.…

And certainly, there’re a lot of attorneys involved. There
have been attorneys for [K.L.M.] this whole time as is
appropriate. There’s a Guardian ad Litem. And then, there
have been attorney[s] for each of the parents at various
points. And of course, the attorney for the County.

The attorney fees that have been submitted … since
2014, in this case, across the board for all the attorneys, has

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No. 2022AP2190

amounted to more than $71,000. This is County money.
This is tax-payer money. And while the Guardian ad Litem
is a mandated attorney, in []other words, is a required
attorney, the attorney for the parents has not been a
required attorney. A required appointment.

I know that Attorney Carey has sent a letter
enquiring as to why the Court has not approved her bill.
And it’s because the Court has wanted to take some time to
really think about … the appointment of an attorney for
[D.M.K.]. And the appropriateness of that at this time.
That led me back, of course, to the Joni B. case and the
Tammy L.D. case, which is the law surrounding the
appointment for attorneys in cases, and for individuals
where there is not either a constitutional or statutory right
to have an attorney.

So … [c]ourts, of course, have inherent powers to
appoint attorneys in cases where it’s needed. But that
power is not derived from the litigant’s constitutional right
to have counsel, but is inherent to serve the interest of the
Circuit Court.

Certainly, sometimes circumstances call for … an
appointment [of] an attorney in … this type of case. When
there is a need for a fair and orderly presentation of the
case. Joni B. also addresses issues of due process and
fundamental fairness.

I am certainly not second guessing … Judge Sharp’s
determination when he appointed attorney[s] for the
parents. I think that there was a time in the lifecycle of this
case where that was no doubt very needed. I know that the
parents were very frustrated. That they had a lot of
questions. A lot of those questions were falling to Court
staff, and the appointment of attorney[s] seemed to help.
And certainly, did serve the interest of the Circuit Court.

The parents in this case are people who have very
few resources, and have a lot of life challenges. And
because of that, it was appropriate for the Court to assign
an attorney.

We fast-forward to today, now. And things have
shifted in this case quite a bit. Reunification is no longer a
goal. There is no possibility that [K.L.M.] is going to come
back home to live with [D.M.K.]. We are quickly rounding
the bend to [K.L.M.]’s adulthood. And I am very glad that
we have a Guardian ad Litem on board, now who

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No. 2022AP2190

understands the process, is on board with the process, and
enjoys the endorsement of all the parties here.…

I know that [the guardian ad litem] take[s] a
collaborative approach to her work. She has certainly
demonstrated an ability to work well with different players
and stakeholders in a situation like that, and do well while
still advancing the interest of her client. I know that she
will, certainly, continue to take an interest in the issues that
have been raised here today .... And of course, she herself
is looking into issues of whether or not [K.L.M.] can be
placed at [a state-run facility that helps children with
disabilities develop independent living skills]. And
everybody seems very enthusiastic with regard to that.

I know it’s not what [D.M.K.] wants to hear here,
but I -- at this juncture can no longer justify the cost to the
County to have a court-appointed attorney for [D.M.K.]. In
reviewing Attorney Carey’s billings, I have some big
questions as to some of the nature of the work that’s been
done. And I do find that some of the billing has been
excessive.

I know that the response to that will be that
Attorney Carey has done a lot of the heavy lifting here.
And that that’s been done by the agreement of the parties. I
don’t question[] that. There are some things that I question,
bottom line is that the Court cannot justify continuing this
appointment given the extreme fiscal crisis that this county
is in. Given the excessive -- well not excessive, with the
very high total of attorney billings in this case overall. And
-- I’ll just leave it at that.

¶22 Based on the transcript, it is apparent that the circuit court
considered the facts it found relevant, which included but were not limited to the
expense to the county. Contrary to D.M.K.’s assertions, the expense to the county
was an appropriate consideration. Tammy L.D., 238 Wis. 2d 516, ¶21 (“While
acknowledging the legitimacy of the State’s pecuniary interests in not appointing
counsel, Joni B. nevertheless concluded that in some cases, such an interest would
not outweigh the shared interest ‘in a just and accurate result which will require

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No. 2022AP2190

the “equal contest” of counseled adversary proceedings.’” (citations omitted)).4
The court also considered that, although it may have been appropriate to appoint
counsel for D.M.K. at an earlier stage in the CHIPS proceeding, the situation had
changed such that D.M.K.’s interests were aligned with the interests represented
by the guardian ad litem, who was able to work collaboratively with both parents.
Under the circumstances, I conclude that the circuit court properly exercised its
discretion consistent with Joni B. and Tammy L.D.

II. Attorney Fee Reduction

¶23 I now turn to D.M.K.’s challenge to the circuit court’s decision to
order the county to pay a reduced portion of the fees that Attorney Carey billed
between October 2021 and December 2022. According to D.M.K., there is no
dispute that Carey performed the work that is itemized in her billing spreadsheets.
The issue turns on the extent of the court’s authority to modify or disallow fees
itemized in Carey’s bill and to direct the county to pay a reduced amount of fees.

¶24 Our supreme court has addressed a circuit court’s authority with
respect to fees for legal services performed by court-appointed attorneys. See
State v. DeKeyser, 29 Wis. 2d 132, 138 N.W.2d 129 (1965); State v. Sidney, 66
Wis. 2d 602, 225 N.W.2d 438 (1975). Those cases generally recognize that a
circuit court has a role in overseeing the payment of such fees—specifically, the
court has “the duty of not only determining what services were reasonably
necessary to constitute … adequate [representation] but also what money value

4
D.M.K. also asserts that the circuit court erroneously assumed that Attorney Carey
would continue representing her pro bono, and that assumption played into the court’s decision to
terminate her appointment. I address that assertion no further because it finds no support in the
record.

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No. 2022AP2190

was to be placed upon the services so rendered.” DeKeyser, 29 Wis. 2d at 138
(citing Conway v. Sauk County, 19 Wis. 2d 599, 120 N.W.2d 671 (1963)). Those
cases also recognize that a court can modify or disallow items in a fee request
based on its determination of “the extent, necessity or details of the services,”
among other things. Id. at 135.

¶25 The DeKeyser court provided the following guidance on the process
that should be followed in such circumstances:

Claims for legal services should be submitted to the court
by verified petition explaining the nature and extent of the
work and in itemized form showing not only the amount of
time spent but also the nature of the work and the problems
involved in sufficient detail so that it can be properly
appraised and a reasonable fee determined for the services.
The facts so stated should be considered prima facie
evidence, and modifications, allowances, and disallowances
for the items made by the court and the reasons therefor
should be set forth in writing and an opportunity given to
counsel to contest the modifications. Reasonable [persons]
may differ over the value of legal services and there is no
question of an attorney’s integrity involved when the court
differs with [the attorney] as to the necessity or value of
services rendered. Such procedure we hope will minimize
misunderstanding between counsel and the trial court and
reduce the number of appeals to this court.

Id. at 137 (emphasis omitted). Based on this passage, it is evident that a circuit
court can, within its exercise of discretion, order the payment of something less
than the full amount of fees claimed by a court-appointed attorney, assuming that
the court allows the attorney to develop a record and provides reasons for any
modifications that are consistent with law and supported by the record.

¶26 D.M.K. does not appear to question that the circuit court had
authority to consider the necessity and value of the services that Attorney Carey

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No. 2022AP2190

provided.5 Instead, she argues that the court made several errors in the course of
evaluating and reducing Carey’s fees. More specifically, D.M.K. argues that the
court erred: by failing to identify any fee items that it was modifying or
disallowing; by failing to provide an explanation for any modifications or
disallowances; by failing to give Carey “a formal opportunity to challenge the …
reduction”; and by considering the county’s “budget and finances” when
evaluating the request. D.M.K. also contends that the reasons the court provided
for the reduction are not supported by the record. Although I do not agree that the
court erred in every way that is identified in D.M.K.’s brief, I conclude that the
process the court used to evaluate the fee request was inconsistent with the
applicable case law and that the reasons the court gave for reducing the amount of
fees it ordered are not adequately supported by the record.

¶27 I begin by addressing the process that was used during the circuit
court proceeding. When it reduced the amount of Attorney Carey’s fees, the court
did not identify any specific entries on the billing spreadsheets that it was
modifying or disallowing. See DeKeyser, 29 Wis. 2d at 137 (“[M]odifications,
allowances, and disallowances of the items made by the court…should be set forth
in writing.”). Instead, it simply reduced the total amount based on its

5
At most, D.M.K. contends that Judge McDougal was not in as good of a position to
evaluate the necessity of the fees as the judges who had previously presided over the CHIPS
proceeding because Judge McDougal had recently been assigned to the case and was not
personally familiar with the work that had been performed. However, it is undisputed that, based
on the timing of Attorney Carey’s fee petitions, it fell to Judge McDougal to exercise her
discretion about the requested fees.

D.M.K. also cites to SCR 81.01 and SCR 81.02, which require a circuit court to “fix the
amount [of an appointed attorney’s] compensation” and set a minimum rate. These rules do not
undermine the court’s responsibility to “determin[e] what services were reasonably necessary to
constitute … adequate [representation] [and] what money value was to be placed upon the
services so rendered.” State v. DeKeyser, 29 Wis. 2d 132, 138, 138 N.W.2d 129 (1965).

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No. 2022AP2190

determination that the fees requested were excessive and unreasonable. The order
provided:

IT IS ORDERED THAT Attorney Theresa Carey,
adversary counsel for the mother, shall be awarded
attorney’s fees and costs in the amount of $13,948.10 for
legal services and disbursements in said action.

The court finds the attorney fees requested in the
amount of $21,133.48 for the period of 10/1/21 to 11/7/22
in this case to be excessive and unnecessary, along with
some fees generated for work that lay beyond the scope of
the attorney’s appointment, and are therefore unreasonable.

Thus, contrary to DeKeyser, the court did not explain which entries it was
modifying or disallowing.

¶28 At the same time, I acknowledge that Attorney Carey’s fee petitions
and billing spreadsheets did not adequately “explain[] the nature and extent of the
work” she performed. See Dekeyser, 29 Wis. 2d at 137 For example, in the
spreadsheet that was submitted along with the first fee petition, dozens of entries
are described simply as “Telephone call client,” without any additional detail
about the subject of the phone calls or the context in which they were made. It is
arguable that the billing spreadsheets are not sufficiently detailed to constitute
prima facie evidence under the process set forth in DeKeyser, and the lack of
detail undoubtedly frustrated the circuit court’s review of the necessity and value
of the legal services that she had provided. However, that does not mean that the
circuit court could simply “eyeball” the fee request and “cut it down by an
arbitrary percentage because it seemed excessive to the court.” Johnson v. Roma
II-Waterford LLC, 2013 WI App 38, ¶26, 346 Wis. 2d 612, 829 N.W.2d 538
(citation omitted) (addressing a fee award in a different context). Instead,
following DeKeyser, the court should have identified “modifications, allowances,

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No. 2022AP2190

and disallowances … and the reasons therefor,” and Carey should have been given
an opportunity to contest any modifications. DeKeyser, 29 Wis. 2d at 137.

¶29 I now turn to the reasons the circuit court gave for reducing the total
amount of Attorney Carey’s fees. As mentioned, the court provided two reasons
for the reduction: it found that the fees were “excessive and unnecessary,” and it
also found that some of the fees were “generated for work that lay beyond the
scope of [Carey’s] appointment.” As I now explain, I conclude that neither reason
has adequate record support that would allow me to affirm the court’s exercise of
discretion.

¶30 First, the circuit court did not provide any support for its
determination that the legal services Attorney Carey provided were “excessive and
unnecessary” or “beyond the scope” of her appointment. The court did not explain
why it reached these determinations. Nor, as mentioned, did it identify any
particular fee entries—or even categories of entries—that were unnecessary or
exceeded the scope of the appointment. In the absence of a record of the court’s
reasoning, I cannot conclude that the court appropriately exercised its discretion.
See Hartung, 102 Wis. 2d at 66 (“[T]he exercise of discretion is not unfettered
decision-making. A discretionary determination, to be sustained, must
demonstrably be made and based upon the facts appearing in the record.”).

¶31 Second, there is a separate problem with the circuit court’s
determination that Attorney Carey billed for legal services that went beyond the
scope of her appointment. Specifically, the court did not identify anything in the
record that limited the legal services that Carey could provide to D.M.K., and my
independent review of the record does not reveal any such limitation. Indeed, the
parties agree that the order appointing Carey contained no such limitation, and

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No. 2022AP2190

there is no indication that Judge Sharp, who oversaw the proceeding at the time
that the majority of the services at issue were performed, implicitly or explicitly
limited the tasks that Carey could perform as adversary counsel for D.M.K.

¶32 In its respondent’s brief on appeal, the Department attempts to
defend the circuit court’s determination by arguing that the applicable limitations
are found in the Supreme Court Rules.6 The Department argues that
Attorney Carey should have limited her work to those tasks that were undertaken
to advance D.M.K.’s interests, and that she instead took on tasks which should
have been undertaken by the court-appointed guardian ad litem to promote
K.L.M.’s best interests.

¶33 It is possible that, in some circumstances, a circuit court might
reasonably reduce a fee award based on its determination that an attorney who was
appointed to represent a certain party did work that went beyond what was
reasonably necessary to represent that party. Here, however, D.M.K. points to
portions of the record that could support the inference that, when Carey took on
tasks to promote K.L.M.’s best interests, she did so with Judge Sharp’s knowledge
and approval, and sometimes even at his request. Indeed, at the time the circuit
court terminated Carey’s appointment, it explicitly recognized that Carey was
likely to argue that she had “done a lot of the heavy lifting here [for the former
guardian ad litem and the Department],” and had taken on those responsibilities
“by the agreement of the parties.” Under the circumstances, the limited record on

6
Specifically, the Department points to SCR 20:1.2(a), which provides that “a lawyer
shall abide by a client’s decisions concerning the objectives of representation …. A lawyer may
take such action on behalf of the client as is impliedly authorized to carry out the representation.”

17
No. 2022AP2190

this issue does not support the court’s exercise of discretion to reduce fees based
on the scope of representation.

CONCLUSION

¶34 For the reasons above, I affirm the order terminating
Attorney Carey’s appointment as adversary counsel, I reverse the order directing
the county to pay a portion of the fees that Carey requested, and I remand for
additional proceedings to address the amount of fees that Carey should be paid for
her work from October 2021 through November 2022. On remand, the circuit
court should hold additional proceedings in its discretion as required to comply
with DeKeyser, 29 Wis. 2d at 137.

By the Court.—Order affirmed in part; reversed in part and cause
remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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