Sum Uncertain
The Michigan Attorney Disciplinary Board affirmed the imposition of a 180-day suspension by consent without requiring restitution.
The formal complaint alleged that, in 2007, Dr. Poss transferred nearly $22 million to respondent’s private client trust account in order to keep his wife from accessing the funds during a period of marital discord. The pertinent portion of the complaint further alleged that Dr. Poss and his wife reconciled and that, after making a series of transfers, respondent failed to provide an accounting to Dr. Poss for the funds in his possession. As noted above, a stipulation for consent discipline admitting certain allegations, including the allegation that respondent’s records were incomplete and could not establish “whether all funds respondent held on Dr. Poss’ behalf … were appropriately returned or applied.” The parties consented to a suspension of 180 days and, essentially, until all funds were accounted for. In light of the indeterminate state of respondent’s records and the preliminary nature of a forensic accounting investigation report by Rodney L. Crawford, CPA, the stipulation did not provide for restitution.
The board
In this case, the report furnished by the forensic accountant at complainant’s behest did not establish with any degree of certainty which, if any, transfers were improper or precisely how much money, if any, was unaccounted for. Here, the panel was not presented with a sum certain nor was there a readily verifiable degree ofloss. Rather, the forensic accountant provided the panel with an estimated range spanning from $900,000 to $3.6 million, in a preliminary report dependent upon certain assumptions. Due to the substantial uncertainty in this case concerning the amount in controversy and complainant’s capacity to pursue civil remedies, we agree with the Administrator and respondent that the panel did not err in approving the stipulation over the objections of complainant and imposing discipline by consent which did not include restitution in this instance.
He must cooperate with an audit to secure reinstatement.
The complainant is Dr. Poss.
An earlier report from Crain’s Detroit Business
A trust fund management dispute is winding down with a no contest plea from a former founding partner of Southfield-based Seyburn Kahn PC.
Attorney Barry Bess will plead no contest to several allegations of failure to give a full accounting for client trust accounts and begin a 180-day suspension from practicing law on Jan. 17 if the state Attorney Discipline Board accepts his plea.
Bess, now sole manager of Bess and Associates PC, was removed as trustee of three trusts at Oakland County Probate Court by Judge Daniel O’Brien in December 2012. At the time, he was a partner at Seyburn, Kahn, Ginn, Bess & Serlin PC, but the firm in a statement earlier this year announced it was shortening its name and Bess was “forming his own practice.”
Bess later hired Birmingham Mayor Pro Tem Stuart Sherman as an attorney in the trust dispute, but Troy-based Jacob & Weingarten PC in January obtained a civil court verdict against Sherman related to his representation of Bess. That firm later reached an undisclosed agreement to end its litigation and considers the Sherman matter over, said its attorney, Kenneth Neuman of Birmingham-based Neuman Anderson PC.
Bess also must give an accounting of the trusts in the probate dispute in order to return to practicing law, even after his suspension.
A panel presiding in Bess’ discipline case has yet to formally approve the agreement. Bess’ attorney, Kenneth Mogill of Lake Orion-based Mogill, Posner & Cohen, said Bess was not being negligent but his records weren’t complete enough to meet some stringent requirement that govern probate lawyers.
(Mike Frisch)