Eldon R. Kenseth and Susan M. Kenseth - Page 29

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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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