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contrary provision in the contingent fee agreement substantially
dilutes the control retained by the client, as shown by Tonn v.
Reuter, 95 N.W.2d 261 (Wis. 1959), and Goldman v. Home Mut. Ins.
Co., 126 N.W.2d 1 (Wis. 1964). Even if that provision of the fee
agreement should not be enforced in strict accordance with its
terms if it came to a lawsuit between the client and the first
attorney, that provision of the agreement creates considerable
uncertainty. That uncertainty means the client has far less
retained control over the prosecution of the claim than the
assignor of an interest in the income from his own future
services to third parties. Further, the client’s ability to fire
the attorney and hire another is severely limited by the
likelihood that liability for two sets of fees will result. So
much for the practical substance of the “ultimate control”
retained by the client who signs a contingent fee agreement.
The majority opinion distorts the taxpayer’s position by
stating, p. 26: “There is no evidence supporting petitioner’s
contention that he had no control over his claim.” First, there
is substantial evidence that petitioner suffered a substantial
reduction in his control over his claim; it’s right there in the
findings. Second, petitioners aren’t arguing that they had no
control; they’re just saying that their control was substantially
reduced. We’re not called upon to come up with relative
percentages of control; that would be a sterile exercise in
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