## Facts

- Warren P. Fisher was arrested and charged with misdemeanor battery arising from a family dispute.
- Fisher retained attorney Luis Kutner to represent him on the single battery charge.
- Kutner required and received a $5,000 flat fee for the representation.
- The battery charge was dismissed on Fisher’s first court date, without trial.
- Kutner claimed about 10 hours of work; the disciplinary fact-finder found roughly 5–6 hours.
- Expert testimony stated the customary fee for a simple battery case in the locality was approximately $750 to $1,250, even if tried.
- Fisher complained after other attorneys told him the $5,000 fee was excessive.
- The disciplinary complaint also alleged Kutner used a curriculum vitae to induce Fisher to pay an excessive fee; the Hearing Board found it did not influence Fisher and did not warrant discipline.

## Issues

1. Whether a client’s assent to a fixed or advance flat fee bars attorney discipline when the fee is clearly excessive.
2. Whether Kutner’s $5,000 fee for a straightforward battery case dismissed before trial was clearly excessive under DR 2-106.
3. What sanction was appropriate for a DR 2-106 violation under the circumstances.

## Decision

- The Illinois Supreme Court held that charging and retaining a clearly excessive fee is professional misconduct subject to discipline, even where the client agreed to a fixed fee.
- The court found the $5,000 fee clearly excessive under DR 2-106 given the simplicity of the matter, the short duration, the limited time spent, and customary local fees.
- The court imposed public censure, adopting the Review Board’s recommended sanction.
- The court did not impose discipline based on the curriculum vitae allegation.

## Legal Principles

- A fee agreement is not insulated from attorney discipline; ethical rules independently limit fees regardless of client consent.
- Under DR 2-106, a lawyer may not charge a clearly excessive fee; reasonableness is evaluated using factors including time and labor, novelty and difficulty, customary local charges, results obtained, and the lawyer’s experience and reputation.
- In determining excessiveness, disciplinary authorities may consider expert testimony on customary fees and findings about actual time expended.
- Sanctions for excessive fees may include public discipline when the amount charged is grossly disproportionate to the services rendered.

## Conclusion

The Illinois Supreme Court censured Kutner for violating DR 2-106 by charging and retaining a clearly excessive $5,000 flat fee for a simple battery defense that ended in dismissal at the first court appearance, holding that such fee misconduct is disciplinable even if framed as a fixed-fee contract.


In re Kutner, 78 Ill. 2d 157, 399 N.E.2d 963 (Ill. 1979)