BEFORE THE HEARING BOARD
OF THE
ILLINOIS ATTORNEY REGISTRATION
AND
DISCIPLINARY COMMISSION

In the Matter of:

KEITH E. MOREHEAD,

Attorney-Respondent, 

No.  1956612.

 

Commission No. 2011PR00033  

FILED -  April 28, 2011

COMPLAINT

Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Robert J. Verrando, pursuant to Supreme Court Rule 753(b), complains of Respondent, Keith E. Morehead, who was licensed to practice law in the State of Illinois on May 19, 1977, and alleges that Respondent has engaged in the following conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute:

(Failure to reveal personal injury client's death)

1. On December 19, 2000, Michelle Smith ("Michelle") fell and was injured at a shopping mall owned by Harlem-Irving Companies, Inc. ("Harlem-Irving"), in Chicago.

2. On January 12, 2001, Respondent agreed to represent Michelle and her husband, Albert Smith, in matters relating to their attempt to recover damages for the injuries Michelle had sustained in the December 19, 2000 fall, and for Albert Smith's loss of his wife's companionship and consortium resulting from her injuries. Respondent and the Smiths agreed that Respondent would be paid a legal fee of one-third of any recovery obtained on their behalf.

3. On December 18, 2002, Respondent filed a complaint on the Smiths' seeking damages for personal injury and loss of consortium behalf against Harlem-Irving in the Circuit Court of Cook County. The clerk of the court docketed the matter and assigned it case number 2002L015941.

4. Between December 2002 and May 2006, Respondent and attorneys for Harlem-Irving engaged in discovery and participated in case management conferences with Circuit Court judges in case number 2002L015941.

5. On May 7, 2006, Michelle was killed in a traffic accident. Albert Smith survived her. Respondent learned of Michelle's death shortly after it occurred.

6. Michelle's death was a material fact in case number 2002L015941, because she was the only witness to the incident which gave rise to her personal injury claim, and because the fact of her death affected the amount of damages which would be recoverable on her behalf and on Albert Smith's behalf in her personal injury case, if her estate continued to pursue the matter.

7. At no time did Respondent take action to initiate a probate matter for Michelle's estate or to have a Court appoint Albert Smith as a special administrator of Michelle's estate to pursue her cause of action in case number 2002L015941 under the Illinois survival statute (755 ILCS 5/27-6).

8. At no time did Respondent inform Harlem-Irving or its attorneys of Michelle's death.

9. At no time did Respondent inform the Court in case number 2002L015941 of Michelle's death, or withdraw from representing Michelle in the case.

10. After Michelle's death, Respondent appeared before the court on the Smiths' behalf in four separate case management conferences in case number 2002L015941 between May 2006 and September 2006, without informing the court or opposing counsel that Michelle had died. During each conference, a judge of the circuit court considered the status of the matter, without knowing the material fact that one of the plaintiffs was deceased, and entered an order scheduling the case for further conferences or for trial.

11. After Michelle's death, Respondent continued to engage in discovery regarding case number 2002L015941 and to negotiate with Harlem-Irving's attorneys to settle the Smiths' claims.

12. Respondent's failure to reveal the fact of Michelle's death to the Court or to Harlem-Irving's attorneys in case number 2002L015941 was dishonest, because her death was a material fact in the litigation and materially affected the value of the Smiths' personal injury and loss of consortium claims.

13. In September 2006, Harlem-Irving's attorneys, who were not yet aware that Michelle had died five months earlier, offered to pay $30,000 to settle the Smiths' claims in case number 2002L015941.

14. In September 2006, Respondent advised Albert Smith to accept Harlem-Irving's $30,000, and advised Smith that Michelle's death had significantly reduced the value of her personal injury claim.

15. At no time did Respondent advise Smith that he had failed to reveal Michelle's death to Harlem-Irving's attorneys or to the Court in case number 2002L015941, or that his failure to reveal the material fact of her death was fraudulent.

16. On September 21, 2006, Albert Smith agreed to the settlement Respondent had proposed, and Respondent informed Harlem-Irving's attorneys that the Smiths would agree to release the Smiths' claims against Harlem-Irving in return for its payment of $30,000 them.

17. Respondent's agreement to settle case number 2002L015941 without informing the defense attorneys that Michelle Smith had died was fraudulent, because Michelle had not actually agreed to any settlement, and because Harlem-Irving's attorneys would not have agreed to the settlement if they had known of Michelle's death.

18. In September 2006, Respondent knew that his concealment of Michelle's death in case number 2002L015941 was fraudulent.

19. In September 2006, Harlem-Irving's attorneys prepared and sent to Respondent a release and settlement agreement for the Smiths to execute, and a stipulation for the dismissal of case number 2002L015941. Respondent received the documents shortly after they were sent.

20. On September 22, 2006, Respondent signed the stipulation for the dismissal of case number 2002L015941, and returned it to Harlem-Irving's attorneys. The attorneys received the stipulation shortly after it was sent.

21. At no time did Respondent provide a release and settlement agreement to Harlem-Irving's attorneys.

22. On September 25, 2006, Harlem-Irving's attorneys filed the stipulation to dismiss case number 2002L015941 in the Circuit Court, with a motion to dismiss the matter. On that date, the Hon. William D. Maddux, a judge of the court, entered an order dismissing the case with prejudice.

23. At no time did Respondent inform Albert Smith that he had agreed to the dismissal of case number 2002L015941, or that the case had been dismissed.

24. At no time did Respondent receive any funds from Harlem-Irving pursuant to his September 2006 proposed settlement of the Smiths' claims.

25. At no time did Albert Smith receive any recovery for his or Michelle's damages arising from Michelle's December 2000 injury.

26. By reason of the conduct described above, Respondent has engaged in the following misconduct:

  1. advancing a claim the lawyer knows is unwarranted under existing law in violation of Rule 1.2(f)(2) of the Illinois Rules ofProfessional Conduct (1990);

  2. failure to keep a client, Albert Smith, reasonably informed about the status of a matter and promptly comply with reasonable requests for information, in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct (1990);

  3. failure to explain a matter to extent reasonably necessary to permit the client, Albert Smith, to make informed decisions regarding the representation, in violation of Rule 1.4(b) of the Illinois Rules of Professional Conduct (1990);

  4. making a statement of material fact to a tribunal which the lawyer knew or reasonably should know is false, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (1990);

  5. offering evidence that the lawyer knows to be false, in violation of Rule 3.3(a)(4) of the Illinois Rules of Professional Conduct (1990);

  6. counseling or assisting a client in conduct the lawyer knows to be illegal or fraudulent, in violation of Rule 3.3(a)(6) of the Illinois Rules of Professional Conduct (1990);

  7. conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4(a)(4) of the Illinois Rules of Professional Conduct (1990);

  8. conduct which is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct (1990); and

  9. conduct which tends to defeat the administration of justice, or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.


Robert J. Verrando
Counsel for the Administrator
130 East Randolph Drive, #1500
Chicago, Illinois 60601
Telephone: 312-565-2600
Respectfully submitted,

Jerome Larkin, Administrator
Attorney Registration and
Disciplinary Commission

By:  Robert J. Verrando