Eldon R. Kenseth and Susan M. Kenseth - Page 77




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         Essay in Reconstruction”, 96 Harv. L. Rev. 1174, 1176 (1983).52                
         Nor do I suggest that the contingent fee agreement in the case at              
         hand operated unfairly so as to make it unenforceable.  I do                   
         suggest that the character of the agreement as a contract of                   
         adhesion supports my ultimate finding that Mr. Kenseth as the                  
         adhering party gave up substantial control over his claim, which               
         was the subject matter of the agreement.                                       
              ii.  American Bar Foundation Contingent Fee Study                         
         My ultimate finding in this case is not just the sympathetic                   
         response of a “romantic judge”53 or an idiosyncratic reaction                  
         divorced from the practical realities of the operation of                      
         contingent fee agreements.  My findings on Mr. Kenseth’s reduced               
         control over the prosecution and recovery of his claim are                     
         supported by the recurring comments to the same effect in the                  
         study by MacKinnon, Contingent Fees for Legal Services:  A Study               
         of Professional Economics and Liabilities (American Bar                        
         Foundation 1964).  What is striking about the MacKinnon study,                 
         which makes no mention of any tax questions, are its repeated                  


               52 In a departure from traditional analysis, Rakoff, supra               
          at 1178-1179, asserts that adhesive contracts may exist in                    
          otherwise competitive markets.  This would appear to be the case              
          with respect to that segment of the market for legal services in              
          which contingent fee agreements are customarily used.  There is               
          no reason to believe that much if any bargaining occurs with                  
          respect to the other terms of contingent fee agreements                       
          concerning the attorney’s lien and the contractual provisions for             
          its enforcement.  So it appears in the case at hand.                          
               53 See Glendon, A Nation Under Lawyers 151-173 (1994).                   





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