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A 100-year-old Wisconsin case contains an indication that at
one time, an attorney in Wisconsin may have had the type of
rights described in Cotnam. See Smelker v. Chicago & N.W. Ry.,
106 Wis. 135, 81 N.W. 994 (1900). In Smelker, the Wisconsin
Supreme Court held that an attorney could press the underlying
cause of action to enforce the attorney’s lien even after the
client had settled. While the Wisconsin court expressed doubt
about the propriety of such a policy, the statutory lien
provision in effect at the time appeared to the court to require
such a result. At the time of Smelker, the statute provided for
attorney’s liens only on the “cause of action”. As such, the
Wisconsin Supreme Court reasoned that the only way an attorney’s
lien could withstand settlement was if the cause of action could
continue at the behest of the attorney. This is no longer the
situation. The Wisconsin attorney’s lien statute was revised
after the decision in Smelker. The statute in effect for
purposes of this case provides for an attorney’s lien on the
cause of action as well as the proceeds or damages from the cause
of action and does not give the attorney the right to continue an
action after the client settles. See Wis. Stat. Ann. sec. 757.36
(1981). In light of the statement in Goldman v. Home Mut. Ins.
Co., supra, that a claim belongs to the client and not the
attorney, the fact that Smelker has only been cited by a
Wisconsin court once (in 1902 and even then not for the
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