People v. Braham
| Decision Date | 23 January 2017 |
| Docket Number | Case Number: 15PDJ095 consolidated with 16PDJ034 |
| Citation | 470 P.3d 1031 |
| Parties | The PEOPLE of the State of Colorado, Complainant, v. Thomas John BRAHAM, Respondent. |
| Court | Colorado Supreme Court |
Thomas John Braham ("Respondent") mishandled a bankruptcy case by failing to act diligently and by electronically filing documents that his clients had neither reviewed nor authorized. After his clients terminated his representation, Respondent sent two emails to the bankruptcy trustee and others in which he disclosed confidential information he had learned while representing his clients. Respondent's misconduct warrants suspension for one year and one day, with the condition that he undergo an independent medical examination ("IME") before seeking reinstatement of his law license.
Jacob M. Vos, Office of Attorney Regulation Counsel ("the People"), filed a complaint in case number 15PDJ095 with Presiding Disciplinary Judge William R. Lucero ("the PDJ") on November 2, 2015. Respondent filed an answer to the People's complaint through his attorney, Gary D. Fielder, on December 11, 2015.
The PDJ held a scheduling conference on January 16, 2016, but continued the setting of the hearing because the People planned to file a second complaint against Respondent. Nine days later, the People requested that the PDJ order Respondent to undergo an IME based on Respondent's communications with the People, which raised concerns, in the People's view, about Respondent's mental health. The PDJ granted the People's request and ordered Respondent to submit to an IME. The parties agreed that Dr. David Stevens would conduct the IME.
On April 20, 2016, the People filed a second complaint, this time under case number 16PDJ034, alleging that Respondent had breached client confidences. The PDJ consolidated the two cases that same day. The PDJ held a second scheduling conference on June 10, 2016, where the People represented that, based on Dr. Stevens's IME report, they did not wish to take any immediate action. Fielder then moved to withdraw as Respondent's counsel on July 19, 2016, and the PDJ granted his motion on August 12. Respondent elected to continue pro se.
During Fielder's representation, Respondent did not provide any discovery responses or documents to the People, who moved to compel Respondent to produce answers and documents responsive to their first set of discovery requests. The PDJ ordered Respondent to do so by October 17, 2016. On October 18, Respondent was transferred to disability inactive status in case number 16PDJ071 under C.R.C.P. 251.23(c), but this disciplinary case moved forward.
After receiving no discovery responses from Respondent, the People moved for sanctions on October 24, 2016. The PDJ held a prehearing conference on October 27, in part to address the People's motion. There, Respondent informed the PDJ that he had been hospitalized and had not received the People's motion to compel. He also stated that he "childish[ly]" declined to provide the People the discovery they requested because he felt they had not been forthcoming in giving him certain information relevant to his defense. The PDJ gave Respondent additional time to respond to the People's discovery requests and placed the People's motion for sanctions in abeyance until October 31. Respondent did not comply with that order, however, and the PDJ precluded him from introducing into evidence any documents that he had not previously provided to the People.
On November 10, 2016, the PDJ granted the People's motion in limine , barring Respondent from presenting any testimony at the hearing about his settlement negotiations with the People. Thereafter, Respondent filed no prehearing materials. On November 15, the PDJ precluded Respondent from calling witnesses at the hearing other than those he had identified on a preliminary witness list and barred him from submitting an untimely hearing brief or legal authority in advance of the hearing. Also in that order, the PDJ granted the People's request to treat their proposed stipulated exhibits as stipulated in light of Respondent's lack of cooperation.
On November 17 and 18, 2016, a Hearing Board comprising John B. Wasserman and Henry R. Reeve, both licensed lawyers, and the PDJ held a hearing under C.R.C.P. 251.18. Vos represented the People, and Respondent appeared pro se. The Hearing Board considered testimony from Nance Kelly, Paul Moss, Karen Bershenyi, Shawn Kelly, and Respondent. The PDJ admitted stipulated exhibits S1-S17, the People's exhibits 8-9, 11-13, 15-17,1 and 19, and Respondent's exhibits A-C.2
Respondent took the oath of admission and was admitted as a licensed lawyer in the State of Colorado on June 9, 2009, under attorney registration number 41010. He is thus subject to the jurisdiction of the Hearing Board in this disciplinary proceeding.3
Respondent testified that he grew up in a suburb north of Chicago. He received a full scholarship as an undergraduate at the University of Colorado, where he graduated in 2003. He then attended the Cooley Law School. After passing the bar examination in Colorado in 2009, Respondent worked at the Colorado Supreme Court law library, where he met his wife. He then clerked for a judge in Adams County before working at a large bankruptcy firm in Denver, primarily representing Chapter 7 clients. Thereafter, he moved between a small boutique firm and a few larger bankruptcy firms before settling in as a solo bankruptcy practitioner. During his career, Respondent has filed over a thousand bankruptcy petitions for debtors.
Nance and Shawn Kelly, a married couple, live in Fort Collins with their two children. Ms. Kelly, an inactive California lawyer, is a legal technician in the Weld County child support division, and Mr. Kelly works as an independent contractor running underwater remote-operated vehicles for oil and gas and fiber-optic companies.4 His job requires him to be outside the United States for several weeks at a time in areas where he is unreachable by phone.
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.5 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 paystubs for the past six months.6
Respondent met with the Kellys in March or April 2014 in Fort Collins.7 Ms. Kelly explained to Respondent that she wanted to coordinate Mr. Kelly's travel schedule with the bankruptcy filing so he could attend the required meeting of creditors, which the court schedules soon after the initial filing. She said that they discussed submitting the petition the following month. Respondent instructed the Kellys to complete the packet he had sent them earlier and to pay him a $1,000.00 retainer.8 Ms. Kelly understood that any additional attorney's fees would be paid through the bankruptcy plan.
Because Mr. Kelly was regularly out of the country, Ms. Kelly gathered all their financial information and communicated with Respondent. On April 16, 2014, Ms. Kelly texted Respondent—their primary means of communication—indicating that she was mailing him the packet of information, financial documents, and retainer check.9 Ms. Kelly testified that she sent Respondent the completed worksheet and included copies of the couple's credit reports, monthly bills, and tax returns, as well as her paystubs, and a check for $1,000.00.10 Ms. Kelly also told Respondent that Mr. Kelly would be home from early June through early July 2014.11 Respondent responded that he would "file May 1st-May 10th to get a date when [Mr. Kelly would be] home for the hearing."12 Ms. Kelly testified that it was important to file the petition soon because they were having difficulty paying their tax debt.
On April 24, 2014, Respondent informed Ms. Kelly that he had received the documents she mailed and would send her a draft petition to review by April 30.13 Ms. Kelly texted Respondent on May 6 letting him know that she had not received a draft from him.14
The next day, Respondent responded, 15 Respondent did not send the draft, however, and instead texted Ms. Kelly again on May 19, 2014, asking her how to list Mr. Kelly's income on the petition.16 He also requested a spreadsheet showing the last seven months of Mr. Kelly's income.17 He again promised to mail her a "draft."18 Ms. Kelly said she put Mr. Kelly's income into a spreadsheet and promptly mailed the document to Respondent.19
Around June 1, 2014, Respondent met with the Kellys in Fort Collins.20 At that time, Ms. Kelly still had not received a draft petition. During the meeting, Ms. Kelly said, the Kellys discussed with Respondent pre-bankruptcy planning, such as purchasing a new car.21 They agreed to file the petition in early August 2014. Ms. Kelly recalled feeling "stressed" during this time because they had stopped paying their credit card bills.
Ms. Kelly recalled meeting again with Respondent in mid-June 2014.22 She said she does not remember much about this meeting other than agreeing that Respondent would file the petition on August 8. He still had not given her a draft petition to review, however.
Respondent testified that he met again with the Kellys in late July and most certainly reviewed the draft petition with them at this meeting. He insisted that he received their original signatures on the petition at this meeting and...
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Lawyers' Duty of Confidentiality and Clients' Crimes and Frauds
...added)).71. Carliss N. Chatman, Myth of the Attorney Whistleblower, 72 SMU L. REV. 669, 683 (2019); see, e.g., People v. Braham, 470 P.3d 1031, 1044 (Colo. 2017) (explaining that the lawyer's unfounded suspicions about his clients' bankruptcy fraud did not justify disclosure under Colorado ......