West Palm Beach attorney Brett A. Elam was suspended from practicing in bankruptcy court for a year and faces potential Florida Bar disciplinary action over mismanagement and lies about his trust account.
Elam cited surgery for his wife, but a creditor’s attorney pointed to a family vacation in Peru.
Elam “is determined to have committed professional misconduct, warranting sanctions,” U.S. Bankruptcy Judge Paul G. Hyman Jr. wrote in final judgment issued Oct. 24.
Elam misappropriated $34,400 and later refused to comply with court orders to account for the missing money, according to court documents. A Florida attorney since 2002, he is a member of its solo and small firm section. His bar file shows no disciplinary history in the last 10 years.
His client’s creditor, the Bank of New York Mellon, said Elam helped himself to trust account funds.
“He used it as a personal piggy bank. Whenever he needed money, he dipped into his trust account. This isn’t one withdrawal. It’s disbursements over a nine-week period,” said bank attorney Gary M. Freedman, a partner at Broad and Cassel in Miami. ”All this time he’s representing to me that the money is sitting in his trust account.”
Elam declined comment.
His pleadings suggest he was in a financial crisis. He told the court he withdrew funds anticipating the judge would confirm his client’s bankruptcy reorganization plan and approve his attorney fees. He also said he withdrew the money early because his wife needed surgery.
However, the bank painted a different picture, claiming the withdrawals funded at one least one exotic vacation. It pointed to two disbursements totaling $8,200 on May 11 and tied them to Elam’s court filings, which indicated he would be traveling to Latin America from June 8-19.
“Elam’s justification for using the trust funds has been something related to his wife having surgery,” the bank wrote in a response filed Sept. 27. “But what Elam forgot to remind the court is that at or around the time he was in this so-called cash crunch … he was planning a family vacation to Peru.”
Now Elam is unwelcome in bankruptcy court and was referred to the Florida Bar Attorney Consumer Assistance Program to investigate whether he should face further disciplinary action. He was suspended from practicing in bankruptcy court for a year or until the bar concludes its investigation, whichever is longer.
He also must pay about $8,558 as a sanction to the creditor within 30 days of the order and replace $34,400 within 60 days of the order. He must also return $14,350 in attorney fees awarded earlier in the case.
Elam’s troubles sprouted from his representation of Kim C. Crawford, a Chapter 11 debtor. It should have been a relatively short assignment. But Crawford was on her fourth plan of reorganization in three years.
She filed for bankruptcy protection in 2014 after the Bank of New York Mellon initiated mortgage foreclosure on one of her properties. The bank would later claim Crawford undervalued some assets, omitted others and had a slew of inaccuracies in her fourth plan, which Elam prepared.
“I’m noticing all of these problems,” Freedman said.
But the biggest red flag came in April, according to Freedman, who said he noticed the $34,400 discrepancy in Crawford’s debtor-in-possession, or DIP, account.
DIP accounts allow people or companies in bankruptcy to continue to operate businesses and retain some control over assets tied to creditor liens. However, the accounts fall under bankruptcy court jurisdiction and require court approval for any spending — including attorney fees — that fall outside the scope of regular business activity.
This meant Crawford would have needed Hyman’s permission to transfer tens of thousands of dollars to her attorney. With no court order awarding fees to Elam, the bank’s lawyer inquired about the missing funds.
This started a monthslong chase after Elam failed to comply with multiple court orders requiring an accounting.
“Why Elam did not access his own banking records online, when he had previously admitted that he has such access, reflects a perpetuation of his wrongful conduct,” the bank wrote in a footnote to a court filing Sept. 27.
Hyman found Elam “willfully violated multiple court orders” and “made false representations to the court.” He ordered the debtor’s lawyer to withdraw from all active cases before the court.