Accountings to OLR Are Not “Charging” an Unreasonable Fee Without Proof of Client Billing Under a Flat-Fee Agreement

1. Introduction

This disciplinary proceeding concerns Attorney Patrick J. Rupich’s conduct in three client matters: two privately retained criminal-defense representations for A.G. and M.M. (advanced flat-fee agreements) and one State Public Defender appointment for J.J. (sentencing-after-revocation hearings). The Office of Lawyer Regulation (OLR) charged eight counts of misconduct, principally focused on (i) flat-fee handling at termination (final accounting, refund of unearned fees, arbitration notices) and (ii) repeated failures to appear and comply with a tribunal directive.

A pivotal issue emerged on review: whether Rupich “charged” an unreasonable fee in violation of SCR 20:1.5(a) where the only evidence was that Rupich provided the OLR (not the clients) an hourly-style accounting valuing his work above the flat fee, and where there was no evidence he billed, demanded, or collected more than the flat-fee amounts from the clients.

Referee Jean A. DiMotto recommended a 60-day suspension and $13,000 restitution ($3,000 to A.G.; $10,000 to M.M.). The Wisconsin Supreme Court dismissed the two SCR 20:1.5(a) counts for insufficient proof, increased the suspension to 90 days, and ordered restitution and costs.

2. Summary of the Opinion

• Misconduct proven: The court found clear, satisfactory, and convincing evidence of violations of SCR 20:1.5(g)(2) (termination accounting/refund/arbitration notices), SCR 20:1.16(d) (failure to refund unearned advanced fees), SCR 20:1.3 (lack of diligence), and SCR 20:3.4(c) (knowingly disobeying a tribunal obligation).
• Counts dismissed: The court dismissed Counts 2 and 5 (the two alleged SCR 20:1.5(a) “unreasonable fee” counts) because the record lacked evidence that Rupich ever billed, demanded, or collected amounts exceeding the flat-fee agreements; an accounting provided to the OLR did not, on this record, establish that Rupich “charged” the client more than the flat fee.
• Discipline: The court imposed a 90-day suspension (three months), concluding that 60 days was inadequate given the seriousness, pattern, and number of violations, notwithstanding dismissal of two counts.
• Restitution and costs: The court ordered restitution totaling $13,000 (A.G. $3,000; M.M. $10,000), accepted OLR’s representation that Rupich had already refunded both clients in full, and imposed costs of $11,384.17.
• Open questions left for another day: The court expressly declined to decide the correct methodology for valuing “earned” portions of a prematurely terminated flat fee where work was performed but objectives were not achieved, because Rupich’s full refunds were treated as a concession on offset.

3. Analysis

3.1 Precedents Cited

Standards of review and burden of proof

• In re Disciplinary Proceedings Against Alfredson, 2019 WI 17, ¶27: the court reiterated it will affirm a referee’s factual findings unless clearly erroneous, while reviewing legal conclusions de novo. This frame mattered because the court ultimately held the referee’s “charging” findings for Counts 2 and 5 were clearly erroneous on the record.
• SCR 22.16(5): the OLR bears the burden of proving misconduct by clear, satisfactory, and convincing evidence. The court invoked this rule to dismiss the SCR 20:1.5(a) counts—illustrating that admissions to legal conclusions do not eliminate OLR’s obligation to have evidence supporting the charged theory.
• In re Disciplinary Proceedings Against Lemanski, 2017 WI 5, ¶22: ordinarily, admissions may suffice to support findings, but the court treated this as a general principle with limits where the pleaded “legal fit” between facts and rule is questionable—especially when the record lacks proof of a necessary element (“charged” to the client).

“Clearly erroneous” findings and what counts as evidence of “charging”

• Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI 46, ¶12: a finding is not clearly erroneous if evidence permits a reasonable person to make it. Here, the court used that benchmark to conclude the record did not permit the finding that Rupich charged clients more than the flat fees, because there was no evidence of billing/invoicing/demanding additional sums.
• Bergmann v. McCaughtry, 211 Wis. 2d 1, 7: “A party’s concession of law does not bind the court.” The court relied on this to avoid treating Rupich’s admissions as dispositive of whether an accounting to OLR is a “charge” to a client. This is significant in attorney-discipline pleadings where respondents may admit counts without litigating nuanced interpretive questions.

Flat-fee valuation and the court’s explicit non-decision

• In re Disciplinary Proceedings Against Boyd, 2010 WI 41, ¶¶27-28 and In re Disciplinary Proceedings Against Din, No. 2012AP2695-D, OLR Resp. Br. at 6-8 (July 9, 2014): the court noted apparent tension between OLR’s position here (suggesting hourly-rate valuation is ethically prohibited under a flat fee) and prior matters where hourly rate × hours was treated as at least some indicator of value. Importantly, the court did not resolve this interpretive dispute due to lack of adversarial briefing and the dispositive absence of evidence that Rupich billed clients above the flat fee.

Sanction framework and comparative discipline

• In re Disciplinary Proceedings Against Zenor, 2021 WI 77, ¶10: supplied the four-factor sanction framework (seriousness/nature/extent; public protection; impressing seriousness on the lawyer; deterrence). This was the court’s explicit rationale for selecting a 90-day suspension.
• In re Disciplinary Proceedings Against Mross, 2013 WI 44: used as a lower comparator (60-day suspension) involving diligence/communication/fee agreement deficiencies, with emphasis on refund. The court found 60 days inadequate for Rupich given multiple offenses and repeated failures to appear and to comply with termination duties.
• In re Disciplinary Proceedings Against Christnot, 2004 WI 120: used as an upper comparator (six-month suspension) involving diligence, communication, fee refund, and failure to respond to OLR. The court found six months too harsh here given mitigating factors and accepted restitution.

Mitigation, medical conditions, and rehabilitation

• In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243: absent a causal connection between medical condition and misconduct, the condition does not mitigate. The referee and court applied this directly: Rupich offered no expert proof, and he admitted his condition did not affect cognition.
• In re Disciplinary Proceedings Against Frisch, 2010 WI 60, ¶22: restructuring practice as evidence of rehabilitation can mitigate. The court credited Rupich’s scaling back and practice changes.

Restitution proof and the limits of burden-shifting

• In re Disciplinary Proceedings Against Scholz, 2025 WI 13, ¶95: when poor recordkeeping or other attorney conduct prevents discerning restitution, burden may shift to the attorney to establish offset. The court acknowledged Scholz but cautioned it “does not operate to relieve the OLR of the burden of proving an underlying SCR violation.” That caution is consequential: restitution doctrine cannot be used to backfill proof gaps on liability (as the dismissed SCR 20:1.5(a) counts illustrate).

Costs

• SCR 22.24(1m) and In re Disciplinary Proceedings Against Lister, 2015 WI 8, ¶47: reinforced the general policy of imposing full costs on the respondent absent a reason to depart.

3.2 Legal Reasoning

A. Why the SCR 20:1.5(a) “unreasonable fee” counts failed (Counts 2 and 5)

The OLR charged Rupich with “charging” A.G. and M.M. fees far above their flat fees, based on hourly-rate calculations contained in accountings Rupich provided during the OLR investigation (A.G.: $11,333.22; M.M.: $20,799.99). On review, the court identified a critical evidentiary gap: the record contained no evidence that Rupich ever provided those accountings to the clients, invoiced them, demanded additional payment, or collected anything beyond the flat-fee amounts already paid.

The court treated “charge” in its ordinary sense—fixing/asking/imposing a fee on the client—and emphasized that the OLR itself conceded it had “no evidence” Rupich submitted invoices reflecting higher amounts to A.G. or M.M. With the accountings not in the record and all testimony indicating no final accounting was given to clients upon termination, the court held the referee’s finding that Rupich “charg[ed] a fee” in excess of the flat fee was clearly erroneous. Consequently, the OLR failed its SCR 22.16(5) burden as to Counts 2 and 5, and they were dismissed.

The opinion also rejected a shortcut: even if Rupich admitted the counts, an admission to a legal conclusion does not bind the court (Bergmann v. McCaughtry). Nor did the court accept (without authority) the proposition that an accounting to the OLR is itself a “charge” to a client.

B. Why the termination-accounting and refund duties were proven (Counts 1, 3, 4, 6)

By contrast, liability under SCR 20:1.5(g)(2) and SCR 20:1.16(d) was straightforward: after termination by A.G. and M.M., Rupich did not provide the required written final accounting, did not provide required dispute/arbitration notices, and did not refund unearned portions of the advanced flat fee.

The court emphasized that Rupich’s flat-fee letters defined the covered stage as “any motions, a guilty plea and sentencing; or a dismissal of charges.” It was undisputed he achieved none of those endpoints for either A.G. or M.M. Therefore, “at least some portion” of each flat fee was unearned—triggering the duty to refund under SCR 20:1.16(d) and the refund/accounting framework of SCR 20:1.5(g)(2).

C. Diligence and tribunal-obedience in the appointed case (Counts 7 and 8)

In J.J.’s sentencing-after-revocation matters, Rupich missed three hearings (including one he selected), failed to take procedural steps to receive notices (opt-in/notice of retainer), and failed to provide a written explanation as ordered by the court. That supported violations of SCR 20:1.3 and SCR 20:3.4(c).

D. Sanction selection: why 90 days

Applying In re Disciplinary Proceedings Against Zenor, the court viewed the misconduct as serious and patterned: repeated failures to appear, failure to comply with termination duties, retention of fees despite non-completion of agreed stages, and a demonstrated need for deterrence and public protection. Although two counts were dismissed, the court found the remaining misconduct warranted a suspension longer than 60 days, but less than six months, settling on three months after comparing Mross and Christnot and weighing aggravating/mitigating factors.

E. Restitution: a pragmatic resolution without endorsing a valuation method

The court acknowledged a live question: how to calculate the “unearned” portion of a flat fee when representation ends early. The referee did not provide a methodology, and the OLR’s arguments leaned on client testimony of perceived lack of benefit and on Scholz burden-shifting. The court avoided deciding the valuation methodology because OLR represented Rupich already refunded both clients in full; Rupich did not dispute that representation and did not respond to the court’s questions. On these “unique facts,” the court treated the full refund as a concession that no offset was owed and left the broader methodology question for another day.

Importantly, the court cautioned that Scholz does not relieve the OLR of proving an underlying violation—an admonition that ties back to the court’s rejection of the OLR’s SCR 20:1.5(a) theory without evidence of actual client charging.

3.3 Impact

• Evidence requirements for fee “charging” claims: Future OLR prosecutions alleging SCR 20:1.5(a) violations premised on “charging” above a flat fee should be supported by evidence of an actual client-directed billing act (invoice, demand, collection attempt, or communication asserting additional amounts owed), not merely an internal or regulatory accounting provided to OLR.
• Pleading discipline and theory alignment: The decision signals that the court will scrutinize whether charged rule elements match the proven facts, even where the respondent admits counts. OLR may need to plead alternative or different theories (e.g., misrepresentation to OLR, if supported; or termination/refund/accounting violations, which were proven here).
• Flat-fee termination compliance is non-negotiable: The opinion reinforces that flat-fee lawyers must, upon termination, deliver the written final accounting, refund unearned amounts, and provide arbitration/dispute notices under SCR 20:1.5(g)(2)—and must return unearned advances under SCR 20:1.16(d).
• Restitution methodology remains unsettled: Because the court avoided deciding how to value partially performed flat-fee work, future cases will likely present that question with fuller records. The court’s mention of Boyd and Din suggests hourly-rate evidence may remain relevant in some contexts, notwithstanding OLR’s argument that flat fees “may not be billed against” hourly.
• Scholz’s burden-shifting has limits: The cautionary note clarifies that restitution doctrines cannot substitute for proof of misconduct; OLR must still prove the rule violation first.

4. Complex Concepts Simplified

• Advanced flat fee: Money paid up front for a defined service or stage (here, motions/plea/sentencing or dismissal). If the representation ends early, the lawyer may have earned only part of the fee; the unearned portion must be returned.
• SCR 20:1.5(g)(2) (termination package): When representation ends, the lawyer must provide (in writing) a final accounting, refund unearned advanced fees/costs, and give specific notices about fee disputes and binding arbitration timelines.
• SCR 20:1.16(d) (protecting client at termination): A broad “wrap-up” duty—return papers/property, give reasonable notice, and refund any unearned advance.
• SCR 20:1.5(a) (unreasonable fee / “charging”): The court focused on the word “charge” as requiring evidence that the lawyer actually asked the client to pay (or imposed) an amount. An internal or investigative accounting to OLR, without evidence it was presented to the client as a bill or demand, did not prove “charging” in this record.
• Clear, satisfactory, and convincing evidence: A heightened proof standard used in attorney discipline—more than “more likely than not,” less than “beyond a reasonable doubt.”
• Restitution vs. discipline: Restitution is repayment to restore clients financially; discipline (reprimand/suspension) is designed to protect the public and the courts and deter misconduct.

5. Conclusion

Office of Lawyer Regulation v. Patrick J. Rupich delivers a targeted but important evidentiary and doctrinal clarification in Wisconsin lawyer discipline: alleging that a lawyer “charged” an unreasonable fee under SCR 20:1.5(a) requires proof the lawyer actually billed, demanded, or collected an excessive amount from the client. An hourly-style valuation submitted to the OLR—without proof it was conveyed to the client as an amount owed—was insufficient here, leading to dismissal of two fee counts.

At the same time, the decision underscores strict enforcement of flat-fee termination obligations—final accountings, refunds of unearned advances, and arbitration notices—and treats repeated nonappearance and disobedience of court directives as serious diligence and tribunal-obligation violations. The court’s 90-day suspension, restitution order, and cost assessment reflect a sanction calibrated between Mross and Christnot, while leaving for future cases the harder question of how to value partially performed services under prematurely terminated flat-fee agreements.