Eldon R. Kenseth and Susan M. Kenseth - Page 63




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         F.2d 119 (5th Cir. 1959).38  Although the narrow ground issue need             
         not detain us indefinitely, a few observations are in order.                   
              Respondent argues that Wisconsin ethical rules prohibit an                
         attorney from acquiring a "proprietary interest" in a cause of                 
         action he is pursuing for his client.  See Wis. Sup. Ct. R.                    
         20:1.8(j) (1998).  That rule actually states, however, that "A                 
         lawyer shall not acquire a proprietary interest * * * except that              
         the lawyer may:  (1) acquire a lien granted by law to secure the               
         lawyer's fee or expenses; and (2) contract with a client for a                 
         reasonable contingent fee in a civil case."  Id. (Emphasis                     
         added.)  Therefore, the rule clearly permits an attorney to                    
         acquire the interests in his client's cause of action                          
         contemplated by the Wisconsin attorney’s lien laws; it also                    
         suggests that those interests are proprietary interests.                       



               38 See Smelker v. Chicago & N. W. Ry., 81 N.W. 994, 994                  
          (Wis. 1900), which quoted the Wisconsin attorney’s lien statute               
          as originally enacted in 1891.  Although Smelker is an old case,              
          diligent research has not disclosed any authority reversing it or             
          declaring it obsolete.  It is cited and summarized as standing                
          for the propositions described in the text in 146 A.L.R. 67, 69               
          (1943) (“ANNOTATION.  Merits of client’s cause of action or                   
          counterclaim as affecting attorney’s lien or claim for his                    
          compensation against adverse party, in case of compromise without             
          attorney’s consent”) and 7 Am. Jur. 2d, Attorneys at Law, sec.                
          323 (1997) (“Right to continue action client has settled”).  Our              
          opinions distinguishing the decision of the Court of Appeals in               
          Cotnam v. Commissioner, supra, on the basis of differences in                 
          State law have relied on Pennsylvania cases from 1852 and 1919,               
          and on Texas cases from 1913 and 1920.  See Estate of Gadlow v.               
          Commissioner, 50 T.C. 975, 980 (1968) (distinguishing                         
          Pennsylvania law); Srivastava v. Commissioner, T.C. Memo. 1998-               
          362 (Texas law).                                                              





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