Botched Bankruptcy Leads To More Violations And Suspension
A year and a day suspension (requiring proof of present fitness for reinstatement) has been imposed by a Colorado Hearing Board.
Braham mishandled his clients’ bankruptcy case and electronically filed several documents that his clients had neither reviewed nor authorized to be filed. After his clients terminated his representation, Braham sent two emails to the bankruptcy trustee and others in which he disclosed confidential information that he had learned during the course of representation.
The clients
In November 2013, the Kellys considered filing for Chapter 13 bankruptcy to seek relief from a large tax debt that they were unable to pay. That month, they sought general information about filing for bankruptcy from a legal website, and received a response from Respondent. Respondent emailed Ms. Kelly a packet of information along with a list of documents to collect, including pay stubs for the past six months.
They retained the attorney after a face-to-face meeting. The matter was mishandled and eventually dismissed.
The attorney’s effort to shift the blame to the client did not persuade
We reject Respondent’s contentions that Ms. Kelly was responsible for the delays in her case or its ultimate dismissal. The exhibits and testimony all point to Respondent’s lack of diligence as the cause of delay and dismissal. Ms. Kelly made every effort to expedite the filing of her case, including completing a detailed bankruptcy worksheet; providing Respondent the family’s tax returns, monthly bill statements, credit reports, and some of her paystubs by April 24, 2014; and giving him their remaining income-related information by August 27. Whenever Respondent requested additional information from Ms. Kelly, she promptly complied. And in May 2014, Respondent failed to send the Kellys a draft petition to review or to file their case by early May.
Respondent did not then diligently work on the petition and plan between June and August 2014. In fact, he did not have the case ready to file by August 8 and again asked Ms. Kelly to postpone their filing because he needed additional time to finalize information. Ms. Kelly believed Respondent would file the case on August 15. Over the next few days, however, Respondent failed to contact Ms. Kelly, and she was forced to seek an update from him on August 15. Rightfully concerned about the delay in the case and the garnishment of her wages, Ms. Kelly insisted that Respondent file the petition and plan that day. He did, but he filed a nearly blank petition and plan. As a result of these deficient filings, the court issued a missing document notice. Respondent failed to give the Kellys a copy of this notice and neglected to file these documents with the court, even though he knew such inaction would lead to the petition’s dismissal.
Respondent did not send the Kellys a draft plan to review until September 6, 2014, and this document contained substantial errors. Ms. Kelly corrected these errors, believing Respondent would make the edits and file an amended plan with the court. Instead, Respondent filed a second amended plan, which contained almost none of the Kellys’ revisions. He could not satisfactorily explain why this was so. The Kellys’ bankruptcy case was dismissed and he did not refile the case.
And
we determine that when Respondent submitted the bankruptcy filings with the Kellys’ electronic signatures on August 15, September 6, and October 1, 2014, he knowingly engaged in dishonest conduct and made misrepresentations to the court that the Kellys had reviewed and signed these documents under penalty of perjury, when they had not done so.
Messing up the bankruptcy case is bad. Trying to blame the client worse.
But this
On September 20, 2015, almost one year after the Kellys terminated Respondent, he sent an email to Paul Moss, a trial attorney with the office of the bankruptcy trustee who was handling the Kellys’ Chapter 7 bankruptcy, as well as to Parnell, the Kellys, Bershenyi, and the People’s attorneys Marie Nakagawa and [Regulation Counsel] Vos.
He took the offensive and violated confidentiality
I have been am currently handling a frivolous bar complaint from Nance Kelly from a totally biased OARC. My research from mid October 2014 right after receiving Nancy Kelly’s demand letter, would suggest a possible Whistleblower retaliation case here. I have tried to be fair to OARC, but they want to go the long way around…
It came to my attention this evening that Nance Kelly did not drop out of law school in San Fran to tend to her sick children, she is actually an inactive California attorney. Wow. Wasn’t there something about Texas in the petition? Weirdo…
I was given a sweetheart diversion that I turned down because I think Nance Kelly is a liar, well besides lying about being an attorney, and I feel her interests are in conflict to her husband. It also seemed from that meeting with Marie and Karen that they were not being truthful and acting with full disclosure. Why would they help Nnace hide the bar complaint and the filing from me. How could this not be consider exculpatory to my defense?
Two emails to Regulation Counsel Vos were treated as an aggravating factor.
Respondent testified that he sent th[e] “Valentine’s Day” email to Vos because he was infuriated with the People’s investigation. By then, he said, he had learned that Vos’s wife, Matt Samuelson (Chief Deputy Regulation Counsel), and the husband of Lisa Frankel (the People’s intake attorney) all had graduated from St. John’s College, and Respondent was alarmed that “everyone went to St. John’s.” He also found out that Vos’s wife had worked for a creditor’s firm and thus believed he was denied an “impartial” investigation of his case.
The second email
“Your next move might be to call me anti-Semitic for mentioning Silverman B, a low-rent dog-dirty creditors law firm. Couldn’t [your wife] have got a job with a real law firm like M & J, at least?”
“It’s 6am, I’m in great spirits, I am SOBER, and I wanted to say to you that if this is a personal attack, well then you’re wife has a gross pieface and Judge Sabino Romano’s niece, my wife, is HOT. Roof roof! :)”
“Maybe Karen can investigate it, well by investigate, I mean do nothing and collect a statutory salary. I worked at the law library in your building, so KNOW I’ve got the research on you, amigo.”
“Paddy cake, paddy cake, rich kid. You won’t like me when we take off the white gloves off……………….and I’ve sat on my hands for too long.”
As to sanction
after learning the Kellys had refiled their bankruptcy petition, Respondent reacted to the news by sending emails to Moss and others in which he revealed client confidences, questioned the Kellys’ motives in filing a complaint against him, and again accused them of committing bankruptcy fraud. The tone and tenor of those emails evinces a complete unwillingness to accept responsibility for his conduct. As example, Respondent made statements like, “Wasn’t there something about Texas in the petition? Wierdo” and “I think Nance Kelly is a liar, well besides lying about being an attorney, and I feel her interests are in conflict to her husband.” These emails, much like his other communications, were riddled with conspiracy theories and attempts to shift the blame from his conduct, including that attorney Frankel was married to a creditor’s attorney yet investigated a complaint against Respondent’s former employer. Last, we are very concerned about the aggressive emails Respondent sent to Vos in February 2016. Respondent’s threats of violence are not warranted under any circumstance and demonstrate a complete lack of remorse. Accordingly, we weigh this aggravating factor heavily.
The attorney did not claim mitigation based on mental health issues
We do find, however, a causal link between Respondent’s personal and emotional problems and the two emails he sent to Moss in which he breached client confidences. In his report, Dr. Stevens opined that Respondent’s pre-existing agitation, coupled with his doubled dose of Lexapro and the stress and humiliation associated with the People’s complaint, caused him to “‘go off the rails’ and to organize an understanding of the investigation as being a profound existential threat. . . .” Accordingly, we apply significant weight to this factor, though only to mitigate Respondent’s Colo. RPC 1.6 violation. As a whole, then, this mitigator warrants average weight.
Thus
Respondent knowingly made misrepresentations to the court and violated the most basic client-centered duties: to be diligent and truthful with his clients about the representation. He also disregarded his duty of confidentiality, a fundamental principle in the lawyer-client relationship. Respondent’s failure to observe these duties justifies a one year-and-one-day suspension, with the requirement that he undergo an IME before petitioning for reinstatement.
(Mike Frisch)