The Colorado Supreme Court on Tuesday upheld multiple findings of misconduct against a Denver divorce attorney for prioritizing her own payment above her client’s interests, going so far as to conceal a check she should have disclosed to the other side.

Following proceedings before the state’s presiding disciplinary judge last year, Brenda L. Storey received a one-year suspension from practicing law for violating the rules of professional conduct. Although the Supreme Court determined the evidence underlying one of the violations was inconclusive, the justices otherwise agreed Storey acted improperly when she used her client’s refund check from the Internal Revenue Service to pay her own bills – keeping it a secret from her client’s husband.

“Instead of pausing to consider the context surrounding the IRS check and the impact that distributing the funds without disclosing the check might have on the divorce proceedings, Storey accepted the check without question and immediately focused on what her next source of revenue would be,” wrote Justice Melissa Hart in the court’s Oct. 4 opinion.

Lawyers for Storey did not immediately respond to a request for comment.

The rare appeal of a misconduct sanction raised the question of whether Storey acted according to generally-accepted practices among family law attorneys or, as prosecutors at the Office of Attorney Regulation Counsel asserted, her behavior was “selfish and dishonest.”

Storey represented Cynthia Sullivan in her divorce from husband Caldwell Sullivan. Cynthia, who depended on her husband for income, paid her legal bills along with other expenses using a credit card. Caldwell ultimately paid off the balance each month.

In mid-2019, Caldwell placed a cap on the credit card, causing Cynthia to fall behind in her payments to Storey. Arapahoe County District Court Judge Peter Michaelson, who was overseeing the divorce proceedings, took a largely hands-off approach to the issue, prompting Storey to pursue her own attempts to recoup payment.

“You will owe me $40,000 by July 20th, and if it is not paid by someone, I am withdrawing. I highly suggest you start selling marital furniture you do not want, in addition to the whiskey, watch and bikes,” Storey instructed Cynthia on July 2, 2019 in one of many messages directing Cynthia to sell the couple’s possessions.

At the end of July, Storey told her client Cynthia she did “not have a choice as to whether you pay me in full. To me, my bill is the highest priority.” She then moved to withdraw herself as Cynthia’s lawyer.

On Aug. 1, Cynthia emailed Storey to propose a solution to the payment issue. A refund check from the IRS had arrived, payable to both Caldwell and Cynthia. The $47,578.43 check could go toward her outstanding balance, Cynthia offered.

“Yes, that is agreeable,” Storey emailed in response.

Storey accepted the check and transferred the bulk of it into her law firm’s operating account. She remained silent about the funds to Caldwell and his lawyer, even though Colorado’s procedural rules require disclosure of information that materially affects the rights and interests of parties to divorce proceedings.

Storey continued to represent Cynthia. Although she had multiple opportunities to disclose the existence of the check – including when she sent Caldwell’s lawyer a separation proposal on Aug. 23 and when she appeared at a court hearing on Aug. 27 – she did not. Only after Storey finally withdrew in early September did she inform Cynthia’s new lawyer about the IRS check.

At a hearing before the presiding disciplinary judge, multiple witnesses were surprised at Storey’s behavior, given her otherwise positive reputation in the legal community. An expert witness said he had “never seen anything like that,” in reference to Storey’s directive to sell marital furniture.

Nevertheless, the hearing board determined she violated multiple standards of professional conduct and imposed a suspension of one year and one day.

In oral arguments to the Supreme Court earlier this year, Storey’s lawyers explained it is a common practice for divorce attorneys to be paid through a couple’s marital assets.

“An attorney could have very easily avoided the land mines that Ms. Storey walked into by disclosing the asset to the other side,” countered Justin P. Moore with the Office of Attorney Regulation Counsel.

The Supreme Court ultimately upheld most of the disciplinary findings against Storey. First, the justices agreed she had a conflict of interest with her client. By making her own payment her highest priority and urging Cynthia to sell marital furniture – without informing her that doing so may actually violate the law governing divorce proceedings – Storey compromised her representation of Cynthia.

Second, Storey failed to disclose the IRS check, and did not advise Cynthia to do so either.

“The fact that Storey took none of these opportunities – effectively delaying disclosure until after she had transferred the remaining funds into her own account – demonstrated a conflict of interest between her personal desire for payment and her obligations of loyalty and independent judgment,” Hart wrote in the court’s opinion.

Third, Storey’s transfer of the IRS funds to her firm’s operating account violated the rule for lawyers to keep their property separate from that of their clients. Finally, the delayed disclosure was a “reckless omission” that fell under the professional prohibition on deceit.

The Supreme Court, however, disagreed that Storey could be held responsible for disobeying a September 2019 order from the trial judge, Michaelson, to return the funds. The facts surrounding the judge’s order were “confusing,” Hart noted, and the justices directed the hearing board to reconsider Storey’s punishment without the added violation.

In a footnote, Hart gently criticized Michaelson for not taking a more active role in managing the original dispute.

The case is In the Matter of Brenda Storey.