- 29 - 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 thePage: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
Last modified: May 25, 2011