Hello and welcome to this Ethics Alert which will discuss the recent censure of an Illinois lawyer for settling a deceased client’s personal injury case without informing court or opposing counsel of the client’s death. The case is In the Matter of: Anthony Patrick Gilbreth, No. 6289576, Commission No. 2015PR00100 (Ill. SC May 18, 2016). The summary of the censure is here: https://www.illinoiscourts.gov/supremecourt/Announce/2016/051816.pdf.
The lawyer’s law firm filed a lawsuit against Orthotic & Prosthetic Lab (O&P) on behalf of a client in 2008 which alleged that a prosthesis that O&P had designed, manufactured, and sold had failed. The client subsequently died in January 2013 and, in August 2013, his son was appointed administrator of the estate. In September 2013, O&P offered to settle the case for $110,000.00. The lawyer responded and stated that his client had instructed him to accept it.
The Illinois Attorney Registration and Disciplinary Commission’s (ARDC) petition for discipline states: “At the time of the settlement, defense counsel was unaware because (the lawyer) had not told him that (the client) had died.” “(The lawyer) withheld the fact of (the client’s) in part because he knew that (the client’s) death would reduce the value of any claim for damages. (The lawyer) also felt that it would be improper to reveal (the client’s) death because (the lawyer) thought that information was confidential under Rule 1.6 of the Illinois Rules of Professional Conduct, and its revelation would harm his former client’s claim. (The lawyer) did research the issue and discussed it with other attorneys in his firm, but did not research ARDC case precedent, discussed infra, in which attorneys have been disciplined for failure to disclose his or her client’s death under similar circumstances.”
According to the petition for discipline, on November 15, 2013, the lawyer sent defense counsel an amended release and informed him that the client had died and that the client’s son had been appointed administrator of the estate. Defense counsel responded by informing the lawyer that the settlement (which had not yet been paid) was no longer valid. The trial court allowed the client’s son to substitute in as plaintiff on January 21, 2014, and granted the lawyer’s motion to enforce the settlement agreement. The defendant appealed and the appeals court vacated the trial court’s order enforcing the settlement.
The appeals court found that, since the client had died, there was no plaintiff on the date of the purported agreement to settle the case and also that the lawyer’s arguments for concealing the death of his client to be “specious and incredible.” The appeals court also stated: “in failing to disclose the fact of the plaintiff’s death, Mr. Gilbreth intentionally concealed a material fact that would have reduced the overall value of the claim for damages.” The court remanded the case to the trial court and, as of the date the parties filed the joint motion to approve the petition to impose discipline on consent, the case filed on behalf of the client remained pending. The lawyer’s Answer to the disciplinary charges is here: https://www.illinoiscourts.gov/supremecourt/Announce/2016/051816.pdf.
The petition for discipline stated, in mitigation, that the lawyer had not been disciplined since his 2006 admission to practice. In addition, five lawyers, a reverend from Columbia, and a judge would testify that the lawyer has a good reputation for truth and veracity, the lawyer was cooperative in the disciplinary proceedings, and was remorseful for his conduct. In aggravation, the petition stated that the lawyer’s “actions in attempting to enforce the settlement, even after being supplied with controlling precedent, caused the defendant to incur the expenses of an appeal to obtain a ruling that the settlement was invalid.” The ARDC petition for discipline is here: https://www.iardc.org/rd_database/rulesdecisions.html (type in lawyer’s name).
Bottom line: This Illinois disciplinary case illustrates the paramount importance of candor in a lawyer’s representation of a client. The lawyer believed that the information related to the death of the client was confidential; however, the appellate court decision found that the lawyer’s duty of candor supersedes attorney/client confidentiality.
Be careful out there.
Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670