“Charging” an Unreasonable Fee Under SCR 20:1.5(a) Requires Proof of a Client-Facing Demand Beyond a Flat-Fee Agreement

1. Introduction

Office of Lawyer Regulation v. Patrick J. Rupich (2026 WI 32) is a Wisconsin attorney-discipline decision arising from the Office of Lawyer Regulation’s (OLR) eight-count complaint alleging misconduct in three representations: two privately retained criminal matters (clients A.G. and M.M.) and one State Public Defender (SPD) appointment (client J.J.). Referee Jean A. DiMotto recommended a 60-day suspension and restitution of the full flat fees paid by A.G. ($3,000) and M.M. ($10,000). Neither party appealed.

The Supreme Court of Wisconsin largely agreed that misconduct occurred—particularly failures to provide termination accountings, failures to refund unearned advanced fees, lack of diligence, and disobedience of a tribunal directive. But the court made a consequential clarification: OLR did not prove two counts alleging violations of SCR 20:1.5(a) (charging an unreasonable fee) because the record contained no evidence that Attorney Rupich ever actually billed, demanded, or collected from either client more than the flat fee set by contract. The court dismissed those two counts, increased the suspension to 90 days, and ordered restitution and costs.

2. Summary of the Opinion

  • Misconduct found (proved by clear, satisfactory, and convincing evidence): violations of SCR 20:1.5(g)(2) (termination accounting/refund/arbitration notices), SCR 20:1.16(d) (return unearned advanced fees upon termination), SCR 20:1.3 (diligence), and SCR 20:3.4(c) (knowingly disobeying tribunal obligations).
  • Misconduct not proved: two counts alleging SCR 20:1.5(a) “charging” an unreasonable fee were dismissed because OLR showed only that Rupich provided OLR an internal “accounting” using hourly-rate math that exceeded the flat fee, not that he “charged” the clients above the flat-fee amount.
  • Discipline: a 90-day suspension (three months), longer than the referee’s recommended 60 days.
  • Restitution: ordered in the amounts of $3,000 (A.G.) and $10,000 (M.M.); the court accepted OLR’s representation that Rupich had already refunded both clients in full and treated that payment as a concession that no fee “offset” was claimed. The court expressly left for another day the methodology for calculating “unearned” portions of prematurely terminated flat fees.
  • Costs: imposed in the amount of $11,384.17.

3. Analysis

3.1. Precedents Cited

Standards of review and burden of proof

  • In re Disciplinary Proceedings Against Alfredson, 2019 WI 17: the court reaffirmed it will uphold a referee’s factual findings unless clearly erroneous, while reviewing conclusions of law de novo. Rupich uses Alfredson to frame its willingness to depart from the referee’s conclusions where the evidentiary record does not support them.
  • In re Disciplinary Proceedings Against Lemanski, 2017 WI 5: admissions ordinarily suffice to establish misconduct. Rupich acknowledges this baseline but treats it as non-dispositive where the admitted “misconduct” turns on an unproven legal predicate—namely whether an internal accounting equals “charging” a client.

Clearly erroneous findings; what counts as evidence-supported factfinding

  • Royster-Clark, Inc. v. Olsen's Mill, Inc., 2006 WI 46: the court invoked the “reasonable person” evidentiary sufficiency standard for factual findings. Applying Royster-Clark, the court deemed it clearly erroneous to find Rupich “charged” above the flat fees when no evidence showed any invoice, bill, demand, or collection beyond those flat-fee amounts.

Concessions of law do not bind the court

  • Bergmann v. McCaughtry, 211 Wis. 2d 1 (1997): even if Rupich “admitted” the SCR 20:1.5(a) counts, the court emphasized that a party’s concession of law does not bind the court. This is central to the opinion’s willingness to dismiss charges despite the respondent’s admissions.

Flat fees and valuation disputes (raised, but not resolved here)

  • In re Disciplinary Proceedings Against Boyd, 2010 WI 41 and In re Disciplinary Proceedings Against Din, No. 2012AP2695-D: the opinion notes tension between OLR’s theory (that using an hourly rate to value flat-fee work is impermissible) and prior cases where hourly-rate calculations have been treated as at least potentially relevant in valuing work under a flat fee. The court flagged this conflict but declined to decide it because the case could be resolved on the narrower ground: OLR did not prove any client-facing “charge” above the flat fee.

Discipline framework and comparator cases

  • In re Disciplinary Proceedings Against Zenor, 2021 WI 77: supplied the standard sanction factors (seriousness, public protection, deterrence, and impressing the seriousness of misconduct).
  • In re Disciplinary Proceedings Against Mross, 2013 WI 44: used as a lower-bound comparator (60-day suspension) for diligence/communication/fee-agreement problems. Rupich’s misconduct was deemed more extensive and thus a longer suspension was warranted.
  • In re Disciplinary Proceedings Against Christnot, 2004 WI 120: used as an upper comparator (six-month suspension) for diligence/communication/unearned-fee and OLR noncooperation misconduct. The court viewed Rupich as less severe than Christnot given certain mitigating considerations, but still beyond Mross.

Mitigation: medical conditions require causation

  • In re Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241 (1997): the court reiterated that absent a causal connection between a medical condition and the misconduct, the condition is not mitigating. Here, no expert evidence linked Rupich’s health issues to the violations, and Rupich admitted his condition did not impair cognition.
  • In re Disciplinary Proceedings Against Frisch, 2010 WI 60: supports considering practice restructuring and rehabilitation efforts as mitigation.

Restitution burden shifting and limits

  • In re Disciplinary Proceedings Against Scholz, 2025 WI 13: OLR relied on Scholz to argue that where the amount of restitution cannot be reasonably ascertained due to the lawyer’s conduct, the burden shifts to the lawyer to establish an offset. Rupich accepted OLR’s representation that full refunds were paid and treated that as a concession, while cautioning that Scholz does not relieve OLR of proving an underlying SCR violation.

Costs policy

  • In re Disciplinary Proceedings Against Lister, 2015 WI 8: cited for the general policy of imposing full disciplinary costs on the respondent absent a reason to depart.

3.2. Legal Reasoning

(A) The opinion’s key doctrinal move: “charging” under SCR 20:1.5(a) is client-facing

The court’s most important analytical step is its strict insistence on evidentiary proof that the attorney actually charged the client an unreasonable fee. Counts 2 and 5 were pleaded as “charging” fees of $11,333.22 and $20,799.99 when the flat fees were $3,000 and $10,000. But those larger numbers appeared only in accountings Rupich provided to OLR during the investigation; OLR conceded it had no evidence that Rupich sent invoices or otherwise demanded those amounts from A.G. or M.M.

On that record, the court held the referee’s findings clearly erroneous and dismissed the SCR 20:1.5(a) charges. The reasoning is both evidentiary and conceptual: an internal computation or investigative response—even if it uses hourly figures that exceed the flat fee—does not become “charging” unless it is communicated as a demand for payment or financial obligation imposed on the client. The court reinforced the point by citing a dictionary definition of “charge” and by emphasizing the absence of proof that any amount beyond the flat fee was fixed, asked, imposed, billed, invoiced, or collected from the clients.

(B) The court declined to decide OLR’s broader flat-fee theory

OLR advanced a more aggressive theory rooted in the definition of “flat fee” under SCR 20:1.0(dm)—specifically the clause that a flat fee “may not be billed against at an hourly rate.” OLR treated Rupich’s hourly-rate accounting (even if only provided to OLR) as per se unethical under SCR 20:1.5(a).

The court explicitly declined to decide whether OLR’s interpretation is correct, noting the lack of adversarial briefing and—more importantly—the threshold factual gap: no evidence of an actual client-facing charge beyond the flat fee. The opinion’s restraint is significant: it preserves future litigation over whether, and to what extent, hourly-rate metrics may be used to value partially completed flat-fee work after termination (an issue the court flagged as potentially in tension with In re Disciplinary Proceedings Against Boyd and the briefing in In re Disciplinary Proceedings Against Din).

(C) Termination duties and unearned fees: violations sustained despite uncertainty about “how much” was unearned

While the court dismissed the “unreasonable fee” counts, it sustained the termination-related charges:

  • SCR 20:1.5(g)(2): Rupich did not provide the mandatory written termination materials—final accounting, refund of unearned advanced fees, and notices about dispute and fee arbitration—for either A.G. or M.M.
  • SCR 20:1.16(d): Rupich did not return unearned portions of advanced flat fees when he did not complete the specific agreed-upon objectives (motions, plea and sentencing, or dismissal).

Notably, the court found it unnecessary to define a comprehensive methodology for calculating the “unearned” portion because it was undisputed that Rupich did not achieve the specified milestones and because Rupich ultimately refunded the full amounts. Still, the court’s reasoning implies a core principle: when the flat fee is tied to “specific, agreed-upon services” or a “fixed, agreed-upon stage,” failure to reach that stage makes at least some portion unearned.

(D) Diligence and tribunal obedience in the SPD matter

For J.J., the misconduct findings reflect basic professional obligations in modern court administration: failure to opt in to electronic systems, failure to track hearings, repeated nonappearances, and failure to provide a court-ordered written explanation. The sustained violations—SCR 20:1.3 and SCR 20:3.4(c)—underscore that logistical failures can be ethical failures when they predictably jeopardize client interests and court process.

(E) Sanction selection: between Mross and Christnot, with aggravation outweighing mitigation

Using In re Disciplinary Proceedings Against Zenor and the ABA Standards framework, the court calibrated the sanction:

  • Aggravation: selfish motive in retaining fees, multiple offenses, pattern of missed hearings, and substantial experience. (The court agreed the old private reprimands were too remote or dissimilar to carry much weight.)
  • Mitigation: truthful/forthright hearing testimony, admissions and cooperation at the hearing stage, practice restructuring as rehabilitation, and post-report payment of full restitution (treated as “somewhat mitigating,” while noting compelled restitution is not).

The court rejected both endpoints: 60 days (as in Mross) was too low for the breadth and seriousness; six months (as in Christnot) was too high given mitigation. The court landed on a three-month suspension.

3.3. Impact

(A) Charging an unreasonable fee: OLR must prove a client-facing overcharge, not merely an investigative-time valuation

The opinion’s clearest prospective effect is disciplinary pleading and proof. If OLR alleges an attorney “charged” an unreasonable fee by exceeding a flat-fee agreement, it must marshal evidence that the attorney actually presented the client with the higher amount (e.g., invoice, bill, demand letter, collection attempt, trust transfer, or other communication imposing a payment obligation). Internal time records or statements to OLR, standing alone, do not satisfy that element as framed by this decision.

(B) Flat-fee termination compliance is non-negotiable

The decision reinforces strict compliance with SCR 20:1.5(g)(2) and SCR 20:1.16(d). Even where an attorney has done substantial work, the lawyer must still provide the mandated final accounting and arbitration notices and must promptly return any unearned portion of advanced fees. The “flat fee” label does not negate termination duties; it can heighten them because “earned” is tied to the agreed-upon stage/services.

(C) Restitution disputes under flat fees remain an open doctrinal area

The court explicitly “leave[s] for another day” the methodology for calculating unearned portions of prematurely terminated flat fees, even while discussing In re Disciplinary Proceedings Against Scholz. Future cases will likely address: (1) what evidentiary showings make the restitution amount “reasonably ascertainable,” (2) when the burden shifts to the lawyer to prove an offset, and (3) whether hourly-rate valuation is permissible (and for what purpose) under the “may not be billed against at an hourly rate” language in SCR 20:1.0(dm).

(D) Practical compliance warning for appointed counsel and e-filing systems

For SPD-appointed attorneys, Rupich underscores that administrative steps (notice of retainer, e-filing “opt-in,” monitoring notices) are part of diligence. Repeated failures to appear—and failure to comply with court directives to explain—can generate both discipline exposure and immediate client harm.

4. Complex Concepts Simplified

  • Advanced flat fee: money paid up front for specified services or a specified stage, not simply for time spent. Under SCR 20:1.0(dm), the fee is “fixed” for defined services/stages “regardless of the time required.”
  • “Unearned” fee: the portion of an advanced payment the lawyer has not earned because the agreed services/stage were not completed. Under SCR 20:1.16(d), unearned advanced fees must be refunded when representation ends.
  • Termination packet under SCR 20:1.5(g)(2): when the representation ends, the lawyer must provide a written final accounting, refund unearned fees and costs, and give specific notices about how to dispute the fee and the availability and timing of binding fee arbitration.
  • SCR 20:1.5(a) “charging” an unreasonable fee: as applied here, the court treated “charging” as requiring evidence the client was asked to pay, or had imposed on them, an amount beyond what was agreed—more than a lawyer’s internal valuation.
  • SCR 20:3.4(c): disobeying a court’s rules or orders (here, the order to provide a written explanation for nonappearance) is an ethical violation, not merely a procedural misstep.

5. Conclusion

Office of Lawyer Regulation v. Patrick J. Rupich delivers a focused but important clarification in Wisconsin legal ethics: to prove that a lawyer “charged” an unreasonable fee under SCR 20:1.5(a) based on exceeding a flat-fee agreement, OLR must show an actual client-facing overcharge—billing, demanding, or collecting beyond the agreed flat fee—not merely an hourly-rate-based accounting provided to OLR.

At the same time, the opinion reinforces core termination and diligence duties: lawyers must provide mandatory termination accountings and arbitration notices, must promptly refund unearned advanced fees when agreed-upon flat-fee objectives are not achieved, and must reliably manage court appearances and comply with tribunal directives. The court’s three-month suspension and restitution order signal that repeated administrative failures, court nonappearances, and fee-retention after termination will draw meaningful discipline—even where “unreasonable fee” counts fail for lack of proof of a client-facing charge.