Office of Disciplinary Counsel v. Bertelmann ( 2013 )

Electronically Filed
Supreme Court
SCAD-12-0000950
15-FEB-2013
09:23 AM
SCAD-12-0000950
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
OFFICE OF DISCIPLINARY COUNSEL, Petitioner,
vs.
CHRIS P. BERTELMANN, Respondent.
ORIGINAL PROCEEDING
(ODC 11-036-8960)
ORDER OF SUSPENSION
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna, and Pollack, JJ.)
Upon consideration of the Report and Recommendation of
the Disciplinary Board of the Supreme Court of the State of
Hawai#i, the stipulated facts, and the evidence in the record, it
appears that Respondent Chris P. Bertelmann neglected a client
matter, failed to respond to reasonable requests for information
regarding the status of the representation, misappropriated
$1,000.00 in client funds advanced for costs, and $5,208.53 in
client funds advanced for attorney’s fees, by converting the
funds to cash immediately upon receipt rather than deposit them
in Respondent Bertelmann’s client trust account, improperly
withdrew from the representation without notice to the client and
without returning the client’s file, causing injury to the
client, and, initially, failed to respond to lawful inquiries
from the Office of Disciplinary Counsel (ODC) regarding the
matter, thereby violating Rules 1.3, 1.4(a), 1.15(c), 1.15(d),
1.16(d), 8.1(b) and 8.4(d) of the Hawai#i Rules of Professional
Conduct (HRPC). Absent mitigating circumstances such conduct
warrants disbarment. See, e.g., ODC v. Cusmano, No. 22770
(January 5, 2000). In aggravation, this court finds Respondent
Bertelmann has substantial experience in the practice of law, and
committed multiple ethical violations. In mitigation, we note
his clean disciplinary record, his sincere expressions of
remorse, his eventual full cooperation with ODC in the
investigation and disciplinary proceedings, and his strong
reputation in the community for public service and representation
of indigent clients. We particularly note, in mitigation, that
Bertelmann suffered from a serious medical condition during the
period of time in question which, though not excusing his
conduct, mitigates against stronger discipline. See ODC v.
Kagawa, 63 Haw. 150, 158, 622 P.2d 115, 120 (1981) (citing
Disciplinary Bd. v. Bergan, 60 Haw. 546, 592 P.2d 814 (1979)).
We further note Bertelmann sought and received treatment and has
demonstrated that his rehabilitation is meaningful and sustained
and that the recurrence of the misconduct is unlikely.
Therefore, it appearing that suspension is appropriate,
IT IS HEREBY ORDERED that Respondent Bertelmann is
suspended from the practice of law in this jurisdiction for a
period of one year and one day, effective 30 days after the date
of entry of this order, as provided by Rules 2.3(a)(2) and
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2.16(c) of the Rules of the Supreme Court of the State of Hawai#i
(RSCH).
IT IS FURTHER ORDERED that, if such restitution has not
yet been paid, Respondent Bertelmann shall pay $6,208.53 in
restitution to his client within 90 days after the date of entry
of this order. Respondent Bertelmann shall submit proof of
payment of that restitution to this court within 10 days
following such payment or within 10 days after the entry date of
this order, whichever occurs later.
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 Bertelmann
shall pay all costs of these proceedings as approved upon the
timely submission of a bill of costs, as prescribed by RSCH Rule
2.3(c) but that payment of restitution shall take precedence.
IT IS FURTHER ORDERED that Respondent Bertelmann shall,
within ten days after the effective date of his suspension, file
with this court an affidavit in full compliance with RSCH Rule
2.16(d).
DATED: Honolulu, Hawai#i, February 15, 2013.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Richard W. Pollack
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