The Dead Cannot Settle

The Illinois Administrator has filed a complaint alleging that an attorney in a products liability action failed to disclose the death of his client.

In November 2008 the attorney filed a complaint for a client “on a contingency basis in matters related to injuries caused by a malfunction of Robison’s prosthetic leg.”

The client died in January 2013. The attorney was aware of the passing.but nonetheless settled the case for six figures without disclosing the death.

The complaint alleges

 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.

At no time prior to or during settlement negotiations did Respondent inform opposing counsel the fact that Robison had died on January 20, 2013.

Respondent withheld the fact of Robison’s death because he knew that Robison’s death would reduce the value of any claims for damages.

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.”

Respondent’s statement regarding his “client” instructed him to accept the settlement offer…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.

Respondent knew that the statement regarding his client’s instruction…was false.

The problem came to light when he attempted to substitute the son of the deceased client as plaintiff and enforce the settlement.

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.”

(Mike Frisch)