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confer the requisite settlement authority upon Montgomery. See
Levy v. Superior Court, 896 P.2d 171 (Cal. 1995); Blanton v.
Womancare, Inc., 696 P.2d 645, 649-653 (Cal. 1985); see also
Harrop v. W. Airlines, Inc., supra at 1145 (“an attorney has no
authority, either actual or implied, to settle an action without
the express permission of his client”).5
Respondent argues primarily that Montgomery during his
December 15, 2003, telephone conversation with Mr. Keil received
express settlement authority. We disagree. Whether Montgomery
at that time obtained express authority to settle some or all of
petitioners’ case is a question of fact. Adams v. Commissioner,
85 T.C. 359, 369-372 (1985). The facts at hand support a
conclusion contrary to that argued by respondent. Although
5 We also note a recent observation by the U.S. Supreme
Court in Banks v. Commissioner, 543 U.S. , 125 S. Ct. 826
(2005). There, the Court stated:
The relationship between client and attorney,
regardless of the variations in particular compensation
agreements or the amount of skill and effort the
attorney contributes, is a quintessential
principal-agent relationship. * * * The client may
rely on the attorney’s expertise and special skills to
achieve a result the client could not achieve alone.
That, however, is true of most principal-agent
relationships, and it does not alter the fact that the
client retains ultimate dominion and control over the
underlying claim. The control is evident when it is
noted that, although the attorney can make tactical
decisions without consulting the client, the plaintiff
still must determine whether to settle or proceed to
judgment and make, as well, other critical decisions.
[Id. at , 125 S.Ct. at 832-833.]
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