Madison - St. Clair Record

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Fifth District: Plaintiff attorney had duty to report dead client; Cates sends opinion to ARDC

By The Madison County Record | Feb 12, 2015

MOUNT VERNON – Anthony Gilbreth of Columbia violated a professional rule by settling a suit for a dead client, Fifth District appellate judges declared on Feb. 4.

Presiding Justice Judy Cates expressed the court’s belief that Gilbreth’s actions constituted serious violations of a rule against dishonesty, fraud, and deceit.

She sent the opinion to the Illinois Attorney Registration and Disciplinary Board.

The opinion further recommends inquiry into opposing lawyer James Smith, of St. Louis County, Mo., for possible failure to report Gilbreth to ARDC.

“We intend that this case will serve as a reminder that the reporting obligations under our rules of professional conduct, though weighty and unpleasant, are influenced by a profound desire to maintain the integrity of our legal profession, to further the ends of justice, and to protect the public," Cates wrote.

Justices Melissa Chapman and Eugene Schwarm concurred.

St. Clair County Circuit Judge Vincent Lopinot approved the settlement last year for the son of the dead client.

Gilbreth’s firm, Crowder and Scoggins, filed suit against Orthotic & Prosthetic Lab on behalf of Randy Robison in 2008.

Robison alleged failure of a prosthesis that Orthotic designed, made and sold.

The case moved slowly, as Lopinot pointed out in an order in 2013.

He set a status conference, and the lawyers continued it for two months.

When they returned, he set trial for that October.

Negotiations began, and Smith offered Gilbreth a sum on Sept. 19.

Gilbreth replied five days later that his client instructed him to accept it.

On Oct. 24, Lopinot received notice that the parties reached agreement and would draft settlement documents. He continued the case.

On Nov. 7, Smith sent Gilbreth an agreement and a general release.

Gilbreth amended the release and sent it to Smith on Nov. 15.

Gilbreth attached to the release a suggestion of the death of Randy Robison and an order that would substitute his son, Matthew, as plaintiff.

“As you may already know, Randy passed away, and his son was appointed administrator of his estate in August," Gilbreth wrote.

“So long as you have no objection to Matt being substituted as plaintiff, I can simply have the order entered next time I am in Belleville.”

On Nov. 18, Smith asked Gilbreth whether the failure to disclose the death was intentional or an oversight.

Smith asked Gilbreth whether he considered the death a material fact in the context of settlement discussions.

Gilbreth replied that disclosure was against his client’s interest, and he had a duty to protect that interest within professional rules.

On Nov. 19, Smith wrote that Orthotic would not consent to substitution.

He wrote that Orthotic did not believe the settlement was valid.

On Dec. 30, Gilbreth moved for substitution of Matthew Robison and enforcement of the settlement.

Gilbreth wrote that Randy died on Jan. 20, 2013, and a St. Louis County court appointed Matthew as personal representative of the estate on Aug. 27.

Smith opposed enforcement of the settlement, claiming the Crowder firm’s authority to represent Randy terminated upon his death.

Smith claimed the death was a material fact that was concealed from him.

He attached a St. Louis County petition for Matthews’s appointment, showing that another attorney in the Crowder firm filed it on July 9.

Lopinot held a hearing on Jan. 21, and granted substitution.

Next day, he enforced the settlement.

He committed two errors in two days, according to Fifth District judges.

Cates wrote, “In every suit, there must always be a plaintiff, a defendant, and a court.”

“An attorney’s employment and his authority are revoked by the death of his client, and an attorney cannot proceed where he does not represent a party to the action,” she wrote.

Cates wrote that Gilbreth acknowledged that disclosure of the death would have adversely affected the value of the case.

“We find that the arguments expressed by Mr. Gilbreth are specious and incredible, and we are concerned about his professional judgment in this case,” she wrote.

She wrote that he led the defendant to believe he had authority to negotiate when the action was without a plaintiff.

“Given Mr. Gilbreth’s intentional misrepresentations and material omissions prior to and during the settlement negotiations, we conclude that the settlement agreement is invalid and unenforceable, and that the trial court erred in granting the motion to enforce it," she wrote.

She wrote that Rule 8.4 of Illinois Rules of Professional Conduct states it is misconduct to engage in dishonesty, fraud, deceit or misrepresentation.

“In this case, we believe that the material omissions and misrepresentations made by Mr. Gilbreth, which were detailed earlier in this decision, constitute serious violations of Rule 8.4,” she wrote.

She wrote that Rule 8.3 requires a lawyer to report unprivileged knowledge of conduct involving fraud, dishonesty, deceit, or misrepresentation.

“We also believe that defense counsel possessed sufficient knowledge to trigger a duty to report Mr. Gilbreth’s misconduct to the ARDC, and that the failure to report the misconduct constitutes a potential violation of Rule 8.3,” she wrote.

“While we bring to light potential violations of the rules of professional conduct by Mr. Gilbreth and Mr. smith, we express no opinion as to the merits of any charges that may be brought against them in relation to those matters.

“Disciplinary proceedings and sanctions for unprofessional conduct rest exclusively within the inherent authority of our supreme court.”

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