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In Re Kutner

OPINION FILED OCTOBER 19, 1979.

IN RE LUIS KUTNER, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 1, 1980.

On July 7, 1976, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint charging the respondent, Luis Kutner, with unprofessional conduct. The complaint alleged that respondent was guilty of overreaching, the use of a curriculum vitae to induce the payment of an excessive fee, and charging an excessive fee in violation of Disciplinary Rule 2-106 of the Illinois Code of Professional Responsibility (1970) (DR 2-106).

On June 1, 1977, the Hearing Board recommended that the motion of the respondent for a directed finding at the close of the Administrator's case be sustained due to the lack of evidence concerning the propriety of the fee charged. On June 24, 1977, however, the Review Board reversed the Hearing Board, finding that the Administrator had established a prima facie case by competent, credible evidence. The cause was remanded to the Hearing Board for further proceedings. Following prolonged hearings, the Hearing Board on June 27, 1978, filed its report and recommendation, concluding that respondent violated DR 2-106 by charging an excessive fee, but that the use of the curriculum vitae "did not have any determining influence on Warren Fisher" and was not "a matter warranting discipline." The Hearing Board unanimously recommended that the Review Board impose a private reprimand as provided by Rule 10.4 of the Rules of the Attorney Registration and Disciplinary Commission. (Ill. Rev. Stat. 1975, ch. 110A, following par. 770, Rule 10.4, Rules of the Attorney Registration and Disciplinary Commission.) On December 20, 1978, the Review Board issued its report and recommendation, in which it was determined that the appropriate measure of discipline for violation of DR 2-106 should be censure of respondent by this court. This disciplinary action comes before us on respondent's exceptions to the report and recommendation of the Review Board.

On August 14, 1973, the complainant, Warren P. Fisher, was arrested in Glencoe and charged with battery by his sister-in-law, Ruth Fisher. Fisher testified that he and his wife were living temporarily in a home owned by his brother and sister-in-law while they awaited completion of a condominium which they had purchased. At about midnight, Ruth Fisher came in the house, went into the bedroom and ordered Warren Fisher and his wife out of the house. According to his testimony, Ruth was an alcoholic and at the time of her entry that night she appeared to be quite intoxicated. When he escorted her out of the bedroom, she threatened to call the police. Sometime later, the police arrived and arrested him for battery.

Upon his mother's recommendation, Fisher called respondent and they arranged a meeting to discuss the case. On August 28, 1973, respondent met with him and told him that he would represent him in the defense of the criminal battery charge for $5,000. An additional fee for representation of Fisher in a possible civil suit was also mentioned. At this time, respondent provided him with a collage of clippings concerning respondent's achievements, although respondent argues that these materials were given to Fisher only after he had requested them. Fisher paid the respondent $250 as an initial consultation fee, but indicated that he could not afford to pay the balance of the $5,000 fee. Respondent testified that he then considered the Fisher file closed. However, a few days later, after managing to borrow the additional money, Fisher contacted respondent and advised him that he would send a check for the balance due, $4,750.

Subsequently, Fisher and respondent met to discuss the details of the case. At this second meeting, respondent asked Fisher to provide him with a written summary detailing the facts of the encounter with his sister-in-law. Respondent also discussed further the possibility of a civil suit against the Glencoe police. On September 4, 1973, one day prior to Fisher's court date, respondent called Fisher and advised him that he would not be able to meet Fisher in court and that he was sending attorney Gorman in his place. Fisher was instructed by respondent not to tell Gorman how much respondent was paid to take the case. On the 5th, Fisher met Gorman in the courtroom. When the attorney approached the bench to request a continuance, the complainant, Ruth Fisher, stepped up and asked the judge to drop the charges. The case was then dismissed.

Afterwards, Fisher consulted two attorneys, each of whom advised him that the fee which he had paid respondent was excessive. On October 25, 1973, Fisher wrote a letter to respondent requesting the refund of $4,000, the amount by which Fisher considered he was overcharged. Respondent, however, refused to return any portion of the fee paid by Fisher, who then contacted the Chicago Bar Association. The matter was referred to the Committee on Professional Fees, which initiated steps toward settlement. While Fisher agreed to submit the dispute to binding arbitration, respondent refused. Respondent did, following remand by the Review Board, offer to settle the matter by refunding $1,000.

In his appearances before the Hearing Board, respondent testified at length as to his accomplishments in the legal profession, particularly in international matters and civil rights. He has been practicing law for nearly 49 years, and much of his practice throughout those years has been devoted to pro bono publico work. The Hearing Board found that respondent has received many citations praising his work in those fields and that he is the author of a number of law-review and other articles. However, notwithstanding respondent's achievements in the field of civil rights and international law, there is no evidence that respondent had any extensive experience with, or particular expertise in, the defense of routine criminal cases such as the one involving Fisher, particularly in recent years.

Respondent's argument, as we interpret it, is that attorney-client fixed-fee agreements, when freely entered into, are not subject to scrutiny by a disciplinary committee and may not form the basis for disciplinary action against an attorney. Rather, respondent contends that any dispute over a fixed fee must be resolved based on traditional contract principles in a court of law. In support of this argument, respondent cites Sokol v. Mortimer (1967), 81 Ill. App.2d 55. The Sokol case, however, is inapposite. It merely stands for the proposition that attorney-client fee arrangements are not presumptively fraudulent. The court in Sokol simply restated what has been the law in Illinois at least since 1893, when this court decided Rolfe v. Rich (1893), 149 Ill. 436. In Rolfe, the court stated:

"While the law is, that dealings between attorney and client, resulting in advantage to the former, will be closely scrutinized, and the attorney be required to show the utmost good faith and fairness, and that the client dealt with full knowledge of his rights, it does not prohibit all dealings between them, or declare all contracts made by the attorney with the client ipso facto void, or voidable at the instance of the client." 149 Ill. 436, 437.

The Supreme Court of Washington faced a similar argument in the case of In re Greer (1963), 61 Wn.2d 741, 380 P.2d 482. In response to the respondent's contention that the issue of reasonableness of fees is a problem for the civil courts> and ought not to form the basis for a disciplinary proceeding, the Washington Supreme Court stated:

"While a determination that a fee is reasonable or unreasonable is appropriate only to a civil court, where the fee retained or demanded can be considered to be unconscionable, it is a matter for a disciplinary proceeding. * * *

* * * When the courts> use the expression `unconscionable' in classifying a fee, we think they mean an amount under the circumstances which neither lawyer nor client can sensibly argue to be ...


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