Office of Disciplinary Counsel v. Bertelmann

• Court: Hawaii Supreme Court
• Decided: February 15, 2013
• Docket: SCAD-12-0000950
• Status: Published

Opinion

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

2 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