BEFORE THE HEARING BOARD
ILLINOIS ATTORNEY REGISTRATION
In the Matter of:
ANTHONY PATRICK GILBRETH,
Commission No. 2015PR00100
FILED --- October 15, 2015
Jerome Larkin, Administrator of the Attorney Registration and Disciplinary Commission, by his attorney, Denise Church, pursuant to Supreme Court Rule 753(b), complains of Respondent, Anthony Patrick Gilbreth, who was licensed to practice law in Illinois on November 9, 2006, and alleges that Respondent has engaged in the following conduct which subjects Respondent to discipline pursuant to Supreme Court Rule 770:
(Misrepresentation and dishonesty by failing to
disclose the death of a client
during pending litigation - Randy L. Robison)
1. On September 25, 2008, Respondent, on behalf of his firm, Crowder & Scoggins, Ltd., and Randy L. Robison ("Robison") agreed in writing that Respondent would represent Robison on a contingency basis in matters related to injuries caused by a malfunction of Robison's prosthetic leg.
2. On November 24, 2008, Respondent, on behalf of his firm, filed an eight-count product liability complaint on Robison's behalf against the manufacturer of the prosthetic leg, Orthotic and Prosthetic Labs, Inc. ("Orthotic"). The case was docketed as Randy Robison v. Orthotic and Prosthetic Labs, Inc., St. Clair County case number 2008-L-601. Orthotic was represented in the case by Greensfelder, Hemker & Gale, P.C. ("the Greensfelder firm").
3. Each of the complaint's eight counts contained allegations that Robison "will be hindered and prevented from attending to his usual and customary affairs," and "will continue to spend and become liable for large sums of money for medical care and services attempting to heal and cure his injuries."
4. Robison died on January 20, 2013, and Respondent learned of the death shortly thereafter.
5. Once Robison died, Respondent had no authority to act on behalf of a party in case number 2008 L 601.
6. On July 1, 2013, Respondent appeared in case number 2008 L 601 for a status hearing, purportedly on behalf of the plaintiff. An attorney from the Greensfelder firm also appeared before the court, and the court scheduled the case for final pretrial conference on October 16, 2013. Respondent signed the bottom of the order on behalf of the plaintiff, Robison.
7. At no time during the July 1, 2013 hearing did Respondent inform the court or his opposing counsel that Robison had died, and that as of that date, there was no plaintiff in case number 2008 L 601.
8. Respondent's statement or implication to the court that he was appearing on behalf of the plaintiff was false, as there was no plaintiff in the case on July 1, 2013.
9. Respondent knew his statement or implication that he was appearing on behalf of the plaintiff was false.
10. On or about July 9, 2013, Kathie Dudley, an attorney with Respondent's firm, filed a petition for Letters of Administration with the Circuit Court for St. Louis County, Missouri, seeking to have Robison's son, Matthew Robison ("Matthew") appointed as personal representative of Robison's estate. The case was docketed as In re the Estate of Robison L. Robison, St. Louis County case number 13SL-PR 01909. On August 27, 2013, the probate court issued Letters of Administration appointing Matthew as a personal representative of Robison's estate.
11. In September 2013, Respondent and James Smith ("Smith"), an attorney with the Greensfelder firm, entered into settlement negotiations via email and, on September 19, 2013, Smith emailed a final offer to Respondent offering to settle the case by paying Robison the amount of $110,000. At the time of the offer, Smith was unaware that Robison was deceased.
12. At no time prior to or during settlement negotiations did Respondent inform opposing counsel the fact that Robison had died on January 20, 2013.
13. Respondent withheld the fact of Robison's death because he knew that Robison's death would reduce the value of any claims for damages.
14. On September 24, 2013, Respondent sent an email to Smith stating that "my client has instructed me to accept $110,000 in full and final settlement of this matter. Please provide an appropriate release and I will present it to my client for review and approval."
15. Respondent's statement regarding his "client" instructed him to accept the settlement offer referenced in paragraph 14, above, was false and/or misleading, in that by failing to tell Smith that Robison had died, Respondent gave Smith the impression that Robison was alive and had agreed to the settlement.
16. Respondent knew that the statement regarding his client's instruction referenced in paragraph 14, above, was false.
17. On November 7, 2013, Smith tendered a settlement agreement and a general release to Respondent.
18. On November 15, 2013, Respondent emailed an amended version of the proposed release to Smith. Respondent's email stated, in part, as follows:
I also attach a Suggestion of Death and Order substituting Randy's son, Matthew, as Plaintiff in this matter. As you may already know, Randy passed away, and his son was appointed Administrator of his Estate in August. 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.
19. At no time prior to November 15, 2013 did Respondent inform the defendant's attorneys of Robison's death.
20. On November 19, 2013, Smith advised Respondent that the defendant would not consent to Matthew's substitution as plaintiff, and that the defendant did not believe the settlement to be valid.
21. On December 30, 2013, Respondent filed a motion on behalf of Matthew Robison to substitute Matthew as plaintiff, and to enforce the settlement. At a hearing on January 21, 2014, the court allowed the substitution of Matthew as plaintiff. On January 22, 2014, the court granted Respondent's motion to enforce the settlement.
22. Defense counsel filed an appeal in the Fifth District Appellate Court ("Appellate Court") of the circuit court's substitution of plaintiff and its order enforcing the settlement agreement. The case was docketed as appellate court case number 5-14-0079.
23. On February 4, 2015, the Appellate Court issued an opinion vacating the circuit court's order and remanding the case for further proceedings. 2015 IL. App. (5th) 140079. The Appellate Court found Respondent's arguments for concealing the death of his client to be "specious and incredible," adding that "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."
24. By reason of the conduct described above, Respondent has engaged in the following misconduct:
knowingly making a false statement of fact or law to a tribunal, by stating or implying on July 1, 2013 that he was appearing on behalf of the plaintiff, and by signing the bottom of the order on behalf of the plaintiff, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct (2010);
in the course of representing a client, knowingly making a false statement of material fact or law to a third person, by conduct including misrepresentation by omission of the material fact of Robison's death to opposing counsel during settlement negotiations, in violation of Rule 4.1(a) of the Illinois Rules of Professional Conduct (2010); and
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, by conduct including appearing purportedly for the plaintiff on July 1, 2013 in case number 2008 L 601, failing to disclose the material fact of Robison Robison's death to the defendant or its attorneys and thereby gaining a financial advantage, and by misrepresenting his client's continuing and direct involvement in the case after Respondent's client died, in violation of Rule 8.4(c) of the Illinois Rules of Professional Conduct (2010).
WHEREFORE, the Administrator requests that this matter be assigned to a panel of the Hearing Board, that a hearing be held, and that the panel make findings of fact, conclusions of fact and law, and a recommendation for such discipline as is warranted.
Jerome Larkin, Administrator