Office of Disciplinary Counsel v. Ostendorp ( 2016 )

Electronically Filed
Supreme Court
SCAD-15-0000081
03-MAY-2016
08:11 AM
SCAD-15-0000081
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
OFFICE OF DISCIPLINARY COUNSEL,
Petitioner,
vs.
MICHAEL G.M. OSTENDORP,
Respondent.
ORIGINAL PROCEEDING
(ODC CASE NO. 10-057-8891)
ORDER OF SUSPENSION
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)
The February 18, 2015 report submitted to this court by
the Disciplinary Board of the Hawai#i Supreme Court, the exhibits
appended thereto, the briefs submitted to this court, and the
record in this matter, establish that Respondent Michael G.M.
Ostendorp represented, from October 1, 2009 to October 7, 2009,
four clients, Mr. K, an individual whose dogs had been seized by
the Hawai#i Island Humane Society (HIHS) pursuant to a search
warrant, K’s sister, R, a family trust, and a family partnership,
and that the representation was both in relation to the seized
dogs and to safeguard family assets, including assets located at
the property from which the dogs were seized. The record also
supports the conclusion that, on the morning of October 7, 2009,
Respondent Ostendorp represented that he had a valid power of
attorney and directed his legal assistant to make similar
representations on four separate occasions, when, in fact, he did
not possess a valid power of attorney until the next day, thereby
committing one violation of Rule 8.4(c) of the Hawai#i Rules of
Professional Conduct (HRPC) (1994) and four violations of HRPC
Rule 5.3(c).
The record supports the conclusion that, by informing
the Office of Disciplinary Counsel (ODC) by letter on October 13,
2011 that K was never his client, when the record contains clear
and convincing evidence Respondent Ostendorp considered K his
client from October 1 to October 7, 2009, and made such
representations to third persons, Respondent Ostendorp again
violated HRPC Rule 8.4(c).
Upon review of the record, however, we conclude ODC did
not establish, by clear and convincing evidence, that Respondent
Ostendorp could not reasonably conclude the interests of K, R,
the family trust and the family partnership were sufficiently in
convergence to simultaneously represent the parties as their
attorney during the relevant period, insofar as both K and R were
both aware of K’s spendthrift habits and sought Respondent
Ostendorp’s counsel as to how best to protect the assets in
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question. We therefore decline to adopt the Hearing Officer’s
violations of HRPC Rules 1.7(a) or 1.7(b).
Furthermore, we decline to adopt the violations found
by the Hearing Officer of HRPC Rules 1.9(a), 1.9(b), 1.9(c),
1.15(g), 4.1(a), 5.3(a), and 5.3(b), because those violations
could have been alleged in the original petition or the pre-
hearing statement but were not. Cf. ODC v. Fernandez, SCAD-12-
376, (February 14, 2013) (wherein this court found a violation of
HRPC Rule 8.1(a) that was not alleged in the original petition,
but was based upon clear evidence in the record and upon
admissions made by the respondent attorney during the
disciplinary hearings themselves). We conclude ODC failed, in
its pre-hearing statement, to allege a violation of HRPC Rule
1.15(a)(2) with sufficient clarity to allow Respondent Ostendorp
to mount an appropriate defense. See In re Ruffalo, 390 U.S.
544, 545-47 (1968).
We find, in aggravation, that Respondent Ostendorp had
substantial experience in the practice of law, three prior
disciplines,1 and multiple violations in the present matter. We
decline, however, to adopt the Hearing Officer’s finding that K
and R were vulnerable victims, concluding that neither individual
1
The record reveals Respondent Ostendorp received a private
informal admonition on September 23, 2004, a private informal
admonition on December 5, 2006, and a public reprimand on June 28,
2012.
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was particularly vulnerable or fragile. See Florida Bar v.
Ticktin, 14 So. 3d 928, 938 (Fla. 2009); In re Disciplinary
Proceedings Against Day, 173 P.3d 915, 920 (Wash. 2007); In re
Disciplinary Proceeding Against Christopher, 105 Wash.2d 669,
682-83 (Wash. 2005).
We conclude that the record does not support the
Hearing Officer’s finding of a mitigating factor of remorse. We
also do not concur that the disciplinary proceedings were delayed
to such a degree as to justify mitigating the contemplated
discipline. We further note much of the delay since submission
of the Board’s report to this court lies with Respondent
Ostendorp.
In light of the above, we conclude a substantial period
of suspension is warranted. Therefore,
IT IS HEREBY ORDERED Respondent Ostendorp is suspended
from the practice of law in this jurisdiction for a period of six
months, effective 30 days after the entry date of this order, as
provided by Rules 2.3(a)(2) and 2.16(c) of the Rules of the
Supreme Court of the State of Hawai#i (RSCH). Respondent
Ostendorp is reminded he may not resume the practice of law until
reinstated by order of this court at the conclusion of this
period of suspension, pursuant to RSCH Rule 2.17(b)(2).
IT IS FURTHER ORDERED, as recommended by the
Disciplinary Board, that Respondent Ostendorp shall successfully
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complete, within 365 days after the date of entry of this order
and at his own cost and expense, an audit of his practice by the
Practicing Attorneys’ Liability Management Society (PALMS) or an
equivalent program regarding his practice, particularly as to the
proper receipt, maintenance, and disbursement of client funds
under the Hawai#i Rules of Professional Conduct and the Hawai#i
Rules Governing Trust Accounting. Respondent Ostendorp shall,
within that 365-day period, submit to this court proof of
completion of the audit, and of his compliance with the audit’s
resulting recommendations, or good cause for an extension.
Though submission of the audit report is not a prerequisite to
Respondent Ostendorp’s reinstatement, Respondent Ostendorp is
hereby notified that failure to complete the audit and submit
proof within the deadline set by this court may result in a
further period of suspension, upon a review of the entire record.
IT IS FURTHER ORDERED that, in addition to any other
requirements for reinstatement imposed by the Rules of the
Supreme Court of the State of Hawai#i, Respondent Ostendorp shall
pay all costs of these proceedings as approved upon the timely
submission of a bill of costs by ODC, as prescribed by RSCH Rule
2.3(c).
IT IS FINALLY ORDERED that Respondent Ostendorp shall,
within ten days after the effective date of his suspension, file
with this court an affidavit he has fully complied with the
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duties of a suspended attorney, as set forth in RSCH Rule
2.16(d).
DATED: Honolulu, Hawai#i, May 3, 2016.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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