             NOTICE
                                    2015 IL App (5th) 140079
 Decision filed 02/04/15.   The
 text of this decision may be            NO. 5-14-0079
 changed or corrected prior to
 the filing of a Petition for
 Rehearing or the disposition of              IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                               FIFTH DISTRICT
________________________________________________________________________

RANDY ROBISON,                         )    Appeal from the
                                       )    Circuit Court of
      Plaintiff-Appellee,              )    St. Clair County.
                                       )
v.                                     )    No. 08-L-601
                                       )
ORTHOTIC & PROSTHETIC LAB, INC.,       )    Honorable
                                       )    Vincent J. Lopinot,
      Defendant-Appellant.             )    Judge, presiding.
________________________________________________________________________

         PRESIDING JUSTICE CATES delivered the judgment of the court, with opinion.
         Justices Chapman and Schwarm concurred in the judgment and opinion.

                                        OPINION

¶1       The defendant, Orthotic & Prosthetic Lab, Inc., appeals from an order of the

circuit court granting a motion to enforce a settlement agreement in a product liability

action. The defendant contends that the settlement agreement is invalid because the

attorneys who purportedly represented the plaintiff during settlement negotiations lacked

the authority to negotiate a settlement where the plaintiff had died and a proper

representative of the estate had not been substituted as the party plaintiff. The defendant

also contends that the settlement agreement is invalid because the attorneys who

purportedly represented the plaintiff during settlement negotiations failed to disclose the

                                              1
material fact that the plaintiff had died eight months prior to the commencement of the

negotiations. For the reasons that follow, we vacate the order granting the motion to

enforce the settlement and remand the cause for further proceedings.

¶2     On November 24, 2008, the plaintiff, Randy Robison, through his attorneys,

Crowder & Scoggins, Ltd. (the Crowder firm), filed a product liability action in the

circuit court of St. Clair County against the defendant, Orthotic & Prosthetic Lab, Inc.

The plaintiff alleged that he suffered serious injuries when a prosthesis, which was

designed, manufactured, and sold by the defendant, failed while he was using it for its

intended purposes. He sought damages for personal injuries, pain and suffering, and past

and future medical expenses. The defendant, through its attorneys, Greensfelder, Hemker

& Gale, P.C. (the Greensfelder firm), appeared, and the case proceeded on the usual path

with motions, discovery, and disclosures of expert witnesses. In March 2013, the trial

court noted that there had been little activity in the case between December 2012 and

March 2013. The court also scheduled a status conference for April 29, 2013. The status

conference was continued and rescheduled for July 1, 2013. The attorneys of record

appeared on that date, and the court scheduled the case for a trial in October 2013.

¶3     In September 2013, the attorneys of record, James Smith, an attorney with the

Greensfelder firm, and Anthony Gilbreth, an attorney with the Crowder firm, began

settlement negotiations via email, and the email communications are a part of the record.

On September 19, 2013, Mr. Smith emailed a final offer to settle the case for a sum

certain to Mr. Gilbreth. In an email dated September 24, 2013, Mr. Gilbreth provided the

following response: "My client has instructed me to accept [amount redacted] in full and
                                            2
final settlement of this matter. Please provide an appropriate release and I will present it

to my client for review and approval."

¶4     On October 24, 2013, the court was notified that a settlement had been reached,

and that the settlement documents were being drafted. The case was continued pending

the execution of the settlement documents.

¶5     On November 7, 2013, Mr. Smith tendered a settlement agreement and a general

release to Mr. Gilbreth. On Friday, November 15, 2013, Mr. Gilbreth sent an email to

Mr. Smith and attached an amended version of the proposed release. The 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."

It was via the email of November 15, 2013, that the defendant and its attorneys first

learned that the plaintiff had died and that the plaintiff's son, Matthew Robison, had been

appointed as the personal representative of his estate.

¶6     On Monday, November 18, 2013, Mr. Smith emailed Mr. Gilbreth regarding the

failure to disclose the fact of Randy Robison's death. Mr. Smith asked Mr. Gilbreth

whether the failure to disclose the fact of the plaintiff's death was intentional or an

"unfortunate oversight." He also asked whether Mr. Gilbreth considered the death of the

plaintiff to be a material fact in the context of settlement discussions in a personal injury
                                               3
case. In reply, Mr. Gilbreth stated that he and his office had researched the issue and

determined that he had no affirmative duty to disclose the information because it was

against his clients' interests and he had a duty to protect his clients' interests within the

bounds of the rules of professional responsibility. On November 19, 2013, Mr. Smith

advised Mr. Gilbreth that the defendant would not consent to the substitution of the

plaintiff. He further advised that the defendant did not believe that the settlement was

valid.

¶7       On December 30, 2013, Matthew Robison, personal representative of the estate of

Randy Robison (the personal representative), by his attorneys of the Crowder firm, filed a

motion to substitute plaintiff and a motion to enforce settlement in the product liability

case.    In the motion to substitute plaintiff, the personal representative sought to be

substituted as the party plaintiff, noting that the plaintiff, Randy Robison, died on January

20, 2013; that the cause of action survives; and that the personal representative of the

probate estate of Randy Robison had been appointed by the circuit court in St. Louis

County, Missouri, on August 27, 2013.

¶8       In the motion to enforce settlement, the personal representative asserted that the

plaintiff had accepted the defendant's offer of settlement on September 24, 2013; that the

defendant tendered a settlement agreement and a release on November 7, 2013; that

counsel for the plaintiff informed the defendant on November 15, 2013, that the plaintiff

had died and that the personal representative of the plaintiff's probate estate would move

to be substituted as the plaintiff for purposes of completing the settlement; and that on

November 19, 2013, the defendant's counsel advised that the defendant would not
                                      4
consummate the settlement because the defendant was unaware, at the time of the

settlement, that the plaintiff was deceased. The personal representative claimed that

Randy Robison's death was not a proper basis for refusing to complete the settlement and

that the settlement agreement should be enforced.

¶9     The defendant filed a memorandum in opposition to the motion to enforce the

settlement. The defendant claimed that the settlement agreement was invalid because the

authority of the Crowder firm to represent the plaintiff in the product case terminated

upon the plaintiff's death, and because there was no plaintiff of record when the

settlement was negotiated. The defendant further argued that the settlement was invalid

because the death of the plaintiff was a material fact that had been concealed from the

defendant prior to and during settlement negotiations.      The defendant attached the

petition for letters of administration seeking the appointment of Matthew Robison as

personal representative of Randy Robison's estate. The petition was filed in the circuit

court of St. Louis County, Missouri, on July 9, 2013, by Kathie Blackman Dudley, an

attorney with the Crowder firm. The defendant argued that the content of the petition

showed that Mr. Gilbreth had knowledge of the plaintiff's death at least two months

before settlement negotiations commenced.

¶ 10   The motions were called for hearing January 21, 2014. At the close of the hearing,

the trial court granted the motion to substitute the personal representative as the party

plaintiff and took the motion to enforce the settlement under advisement. The court

entered an order granting the motion to enforce the settlement on January 22, 2014.


                                            5
¶ 11   On appeal, the defendant contends that the circuit court erred in granting the

motion to enforce the settlement. We agree.

¶ 12   In every suit, there must always be a plaintiff, a defendant, and a court. Mitchell v.

King, 187 Ill. 452, 459, 55 N.E. 637, 639 (1899). 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. Mitchell, 187 Ill. at 459, 55 N.E. at 639;

Washington v. Caseyville Health Care Ass'n, 284 Ill. App. 3d 97, 100, 672 N.E.2d 34, 36

(1996). Generally, the attorney-client relationship is terminated by the death of the client,

and thereafter, the authority of the attorney to represent the interests of a deceased client

must come from the personal representatives of the decedent. Washington, 284 Ill. App.

3d at 101, 672 N.E.2d at 36; In re Marriage of Fredricksen, 159 Ill. App. 3d 743, 512

N.E.2d 1080 (1987).

¶ 13   In this case, the plaintiff, Randy Robison, died on January 20, 2013. Upon Randy

Robison's death, the product liability action was without a plaintiff, and the Crowder

firm's authority to act on behalf of Randy Robison terminated. Under our procedural

rules, this cause of action is one that survives the death of a party, and the personal

representative of the decedent's estate is permitted to file a motion for substitution. See

735 ILCS 5/2-1008(b) (West 2002). The motion for substitution is to be filed within 90

days after the party's death is suggested of record, and the date of the actual death is not a

factor. See Ferak v. Elgin, Joliet & Eastern Ry. Co., 55 Ill. 2d 596, 600, 304 N.E.2d 619,

621 (1973). In this case, the motion to substitute plaintiff was timely filed on December

30, 2013, and the order authorizing the substitution of the personal representative as the
                                           6
party plaintiff was entered on January 21, 2014. Thus, from January 20, 2013, to January

21, 2014, the product liability action was without a plaintiff, and the Crowder firm did

not represent a party to the action.

¶ 14   Settlement negotiations commenced in September 2013, and an agreement was

ostensibly reached on September 24, 2013. The defendant, however, had no knowledge

about the plaintiff's death or the appointment of a personal representative throughout the

period of settlement negotiations. Mr. Gilbreth acknowledged that he did not disclose

these facts to the defendant until November 15, 2013, weeks after the settlement was

reached and months after the plaintiff's death. Mr. Gilbreth also acknowledged that the

disclosure of the plaintiff's death would have adversely impacted the settlement value of

the case. He stated that he believed that the decision to withhold the information was in

his clients' best interest and was in keeping with the rules of professional responsibility.

We strongly disagree.        We find that the arguments expressed by Mr. Gilbreth are

specious and incredible, and we are concerned about his professional judgment in this

case. 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. In addition, and equally troubling, Mr. Gilbreth led the defendant to believe

that he had authority to negotiate a settlement of the litigation on behalf of the party

plaintiff, when the action was without a plaintiff as the plaintiff had died and a

representative   had   not     been    substituted.   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
                                           7
court erred in granting the motion to enforce it. Accordingly, we hereby vacate the order

granting the motion to enforce settlement and remand the cause to the circuit court for

further proceedings.

¶ 15   Finally, we believe that we have a profound responsibility to comment on the

conduct of the attorneys in this case. Lawyers who are admitted to practice in Illinois,

and those who are not admitted but provide legal services within this jurisdiction, are

subject to the Illinois Rules of Professional Conduct of 2010 (RPC). Ill. R. Prof. Conduct

(2010) R. 8.5 (eff. Jan. 1, 2010). Rule 8.4(c) of the RPC states that it is professional

misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation. Ill. R. Prof. Conduct (2010) R. 8.4(c) (eff. Jan. 1, 2010). Rule 8.3

requires a lawyer to report unprivileged knowledge of misconduct involving fraud,

dishonesty, or deceit, or misrepresentation by another lawyer to the Illinois Attorney

Registration and Disciplinary Commission (ARDC). See Ill. R. Prof. Conduct (2010) R.

8.3 (eff. Jan. 1 2010); In re Himmel, 125 Ill. 2d 531, 539, 533 N.E.2d 790, 793 (1988).

¶ 16   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. 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. See Himmel, 125 Ill.

2d 540-43, 533 N.E.2d at 793-94. Therefore, we will direct the clerk of this court to

transmit a copy of this opinion to the Attorney Registration and Disciplinary Commission

for its consideration of the actions of the attorneys in this case. While we bring to light
                                              8
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. In re Harris,

93 Ill. 2d 285, 291, 443 N.E.2d 557, 559 (1982). 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. Himmel, 125

Ill. 2d at 544, 533 N.E.2d at 795.

¶ 17   For the reasons stated, we hereby vacate the order of the circuit court granting the

motion to enforce the settlement, and we remand this case to the circuit court for further

proceedings. We further direct the clerk of this court to transmit a copy of this opinion to

the Attorney Registration and Disciplinary Commission for its consideration of the

actions of the attorneys in this case.



¶ 18   Order vacated; cause remanded.




                                             9
                            2015 IL App (5th) 140079

                                  NO. 5-14-0079

                                     IN THE

                       APPELLATE COURT OF ILLINOIS

                                FIFTH DISTRICT


RANDY ROBISON,                         )    Appeal from the
                                       )    Circuit Court of
      Plaintiff-Appellee,              )    St. Clair County.
                                       )
v.                                     )    No. 08-L-601
                                       )
ORTHOTIC & PROSTHETIC LAB, INC.,       )    Honorable
                                       )    Vincent J. Lopinot,
      Defendant-Appellant.             )    Judge, presiding.
________________________________________________________________________

Opinion Filed:        February 4, 2015
________________________________________________________________________

Justices:         Honorable Judy L. Cates, P.J.

                 Honorable Melissa A. Chapman, J., and
                 Honorable S. Gene Schwarm, J.,
                 Concur
________________________________________________________________________

Attorney         James L. Smith, Kamykowski, Gavin & Smith, PC, 287 North
for              Lindbergh Blvd., St. Louis, MO 63141
Appellant
________________________________________________________________________

Attorneys        Mark C. Scoggins, Clay B. St. Clair, Anthony P. Gilbreth, Crowder
for              & Scoggins, Ltd., 121 West Legion Avenue, P.O. Box 167,
Appellee         Columbia, IL 62236
________________________________________________________________________
