In re Askew, No. 17-BG-0152

• Decision Date: 20 February 2020
• Docket Number: No. 17-BG-0152
• Citation: 225 A.3d 388
• Parties: IN RE Abigail ASKEW, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 497703)
• Court: D.C. Court of Appeals

225 A.3d 388

IN RE Abigail ASKEW, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 497703)

No. 17-BG-0152

District of Columbia Court of Appeals.

Argued October 29, 2019

Decided February 20, 2020

John O. Iweanoge, Jr., for respondent.

Julia L. Porter, Deputy Disciplinary Counsel, with whom Hamilton P. Fox, Disciplinary Counsel, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel.

Before Blackburne-Rigsby, Chief Judge, Thompson, Associate Judge, and Washington, Senior Judge.

Per Curiam:

On July 31, 2009, this court appointed respondent Abigail Askew to represent Purnell Jackson, an incarcerated indigent defendant, in the appeal from his conviction of a felony violation of the Bail Reform Act (Appeal No. 09-CF-0850). On June 19, 2013, we vacated respondent's appointment, finding that she had failed to file a brief and appendix on behalf of Mr. Jackson despite successive orders by this court extending the time for filing, ignored this court's orders directing that the brief and appendix be filed, and failed to respond to a show-cause order as to why she should not be held in contempt for failure to file the brief and appendix or otherwise to comply with this court's orders. We referred the matter to the Office of Bar Counsel (now known as the Office of "Disciplinary Counsel," the term we use hereafter), which in October 2014 charged respondent with seven violations of the District of Columbia Rules of Professional Conduct: Rule 1.1(a) & (b) (failing to provide client with competent representation), Rule 1.3(a) (failing to provide zealous and diligent representation), Rule 1.4(a) (failing to keep client reasonably informed), Rule 1.4(b) (failing to explain matter to client to enable client to make informed decisions), Rule 3.4(c) (knowingly disobeying obligation under rules of a tribunal), and Rule 8.4(d) (engaging in conduct that seriously interferes with the administration of justice) in connection with her appointment to represent Mr. Jackson. A few months earlier (in July 2014), this court had sanctioned respondent for similar misconduct (violating all but one of the foregoing Rules) relating to another, similar matter. See In re Askew , 96 A.3d 52 (D.C. 2014) (per curiam) (" Askew I ") (imposing a six-month suspension, with all but sixty days stayed, and a one-year probationary term, for neglect of imprisoned and indigent client Ronald Middleton).

In May 2016, an Ad Hoc Hearing Committee (the "Hearing Committee") found in the instant matter that Disciplinary Counsel proved all seven charged violations and recommended that respondent be suspended from the practice of law for six months and required to prove fitness before reinstatement to the bar. The Board on Professional Responsibility ("BPR") adopted the Hearing Committee's factual findings (including its credibility determinations) and conclusions of law and, in light of aggravating factors (respondent's failure to acknowledge fault in her handling of Mr. Jackson's case and what the Hearing Committee found to be several instances of respondent's deliberately false testimony before the Hearing Committee), also adopted the Hearing Committee's recommended sanction of a six-month suspension and a requirement to demonstrate fitness before reinstatement.

For the reasons that follow, we accept the Board's findings of fact and conclusions of law as to the Rules violations and agree with the recommended six-month suspension. However, we decline to impose a fitness requirement. Instead, we will require respondent to complete a practice management course and, after her suspension, to serve a one-year probationary period under the watch of a practice monitor.

I.

Respondent was the sole witness at her June 30, 2015, hearing before the Hearing Committee. Her testimony and the documentary evidence established the following facts, which are undisputed except as identified in the discussion that follows. Between July 31, 2009, and June 19, 2013, respondent made the following unsuccessful attempts to contact her client. In August 2009, she attempted to visit Mr. Jackson at the District of Columbia Jail, where she was informed that he had been transferred to a federal institution. Respondent then performed a Bureau of Prisons search, which traced Mr. Jackson to a federal facility in Petersburg, Virginia. Respondent thereafter wrote three letters to Mr. Jackson. She sent the first letter in August 2009, and the letter was not returned to her, but she received no response. Respondent sent a second letter to Mr. Jackson in either December 2009 or January 2010. She testified that after sending the second letter, she "attempted to contact his facility to try to talk to him." Specifically, she testified, she spoke "at least once" with a Petersburg facility counselor — whose name respondent did not recall — who informed respondent that he would speak with Mr. Jackson about respondent's efforts to contact him.¹ Respondent did not schedule a time to speak with Mr. Jackson, and she had no record of her call to the counselor.

Respondent testified that she did not have copies of the letters she sent to Mr. Jackson because she lost "all of her prior electronic information" because of a computer virus she experienced in May 2011.² She further testified that, in early 2011, approximately one year after she wrote the second letter to Mr. Jackson, she received a phone call from a "young lady," who would not identify herself but who stated that Mr. Jackson wanted to know why respondent was "trying to get in touch with him." Respondent explained to the caller that she had been appointed to represent Mr. Jackson. Respondent took the phone call as an indication that Mr. Jackson "had to have gotten [respondent's] letter[,]" because that was "the only way [the caller] could have gotten [respondent's contact] information to call [respondent] on his behalf." Respondent thought she was "going to be hearing from [Mr. Jackson] based on the phone call."

On June 28, 2011, respondent wrote a third letter to Mr. Jackson addressed to the federal correctional institution in Petersburg, but the letter was returned to respondent (and was first opened during the disciplinary hearing).³ Upon receiving the returned letter, respondent, thinking that Mr. Jackson might have been transferred to another facility, conducted another Bureau of Prisons search and spoke to someone at the Bureau of Prisons, but did not locate Mr. Jackson. At some point in July or August 2011, Ms. Askew made inquiries to this court's Legal Division about hiring an investigator to assist in locating Mr. Jackson; she was informed that this court would not cover the cost of hiring an investigator in the situation respondent described. Respondent did not move the court for permission to hire an investigator and did not inquire of anyone more experienced than she (such as the Public Defender Service or the U.S. Attorney's Office) about what to do when she could not locate her client.

On December 8, 2011, respondent filed a motion to dismiss Mr. Jackson's appeal without prejudice, on the ground that she was unable to contact the client. On December 28, 2011, this court denied the motion without prejudice to renewal of the motion after a more complete search, which this court advised should include "contacting [the] U.S. Parole [C]ommission since appellant is subject to three years of supervised release." Subsequently, between January and September of 2012, respondent contacted CSOSA (the Court Services and Offender Supervision Agency), identified Mr. Jackson's supervisory officer and left telephone messages for her and her supervisor, and sent a letter, but never made contact.

The documentary evidence presented at the hearing established that, over the nearly four years that respondent represented Mr. Jackson, she responded late or not at all to several of this court's orders. She responded late to orders issued on June 29, 2011 (directing that the brief and appendix be filed by July 18; motion for extension of time not filed until July 21); June 22, 2012; July 27, 2012 (directing that the brief and appendix be filed by September 10; motion for extension of time not stamped filed until September 12)⁴ ; October 3, 2012 (directing that the brief and appendix be filed by December 3; motion for extension of time not filed until December 6) and March 1, 2013 (directing that the brief and appendix be filed within 15 days; motion for extension of time not filed until 17 days later). Respondent failed to respond to court orders issued on July 31, 2009 (requiring respondent to file a statement regarding transcripts); October 21, 2010 (directing that the brief and appendix be filed within 40 days); March 7, 2011 (directing that the brief and appendix be filed by March 30); April 5, 2011 (directing that the brief and appendix be filed within 20 days); August 1, 2011 (directing that the brief and appendix be filed by September 16); October 5, 2011 (directing that the brief and appendix be filed within 15 days); November 22, 2011 (directing that the brief and appendix be filed within 10 days); February 28, 2012 (directing that the brief and appendix be filed within 40 days); April 17, 2012 (directing that the brief and appendix be filed within 20 days); May 18, 2012 (directing that the brief and appendix be filed within 15 days); July 27, 2012 (directing that the brief and appendix be filed by September 10); September 12, 2012 (directing that the brief and appendix be filed within 15 days); December 14, 2012 (directing that the brief and appendix be filed by February 4, 2013); and March 26, 2013 (directing that the brief and appendix be filed by April 1, 2013).

With regard to her failure to respond and late responses to court orders, respondent testified that she "had a lot of trouble with ... mail" addressed to her at her virtual office at 1629 K...