- 77 - 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).Page: Previous 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 Next
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