Walton A. Sutherland - Page 19

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          L. & R. sec. 1208 (McKinney 1976 & Supp. 1995).  The order and              
          the supporting papers we have described--the compromise petition,           
          the Lipsig firm affirmation, and petitioner's affirmation--all              
          are consistent in treating petitioner as entitled to a fee, which           
          he waived.  Both the compromise petition and the Lipsig firm                
          affirmation describe a contingent fee arrangement of                        
          33-1/3 percent (later reduced to 30 percent).  If the arrangement           
          were otherwise, i.e., if, from the beginning, petitioner had been           
          entitled to no portion of that fee and the Lipsig firm was to get           
          less than 33-1/3 percent (later, 30 percent), then the compromise           
          petition and the Lipsig firm affirmation were misleading, if not            
          fraudulent.  We do not believe that to be the case.  Petitioner             
          assisted and was a tremendous help to the Lipsig firm in the                
          prosecution of the malpractice action.  The retainer,                       
          petitioner's retainer statement, and his arrangement with the               
          Lipsig firm all are consistent with the conclusion that                     
          petitioner earned and was entitled to a fee.  The only evidence             
          to the contrary is the testimony of petitioner and Hester.                  
          Petitioner's testimony was not straightforward; we found him                
          evasive in many of his answers.  We accord his testimony little             
          weight.  Hester's testimony agreed with that of her brother.                
          Because of the close family relationship, and because she exposed           
          herself to no adverse income tax consequence, we also accord her            
          testimony little weight.                                                    






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