In re Askew
In re Askew
Opinion of the Court
This court appointed Respondent Abigail Askew to represent Ronald Middleton, an incarcerated indigent client, in the appeal of the denial of a post-conviction motion. In relation to that representation, Ms. Askew was later charged with and admitted to eight 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
We agree with the Hearing Committee and the Board that more than a stayed public censure with probation is warranted in this case, both in light of the seriousness of Ms. Askew’s professional misconduct— her intentional and virtually complete neglect of her court-appointed client, Mr. Middleton, who notwithstanding the fact that he was imprisoned, expended great effort in an attempt to establish an attorney-client relationship with her — and in comparison with sanctions imposed in similar cases in this jurisdiction. For this reason, we conclude that the Board’s recommended sanction, a stayed 30-day suspension with one year of probation, is also inadequate.
This court bears the ultimate responsibility of ensuring in disciplinary cases that any sanction imposed will adequately protect the public and the courts, maintain the integrity of the profession, and deter others from engaging in similar misconduct. To fulfill those objectives, we determine that a six-month suspension, with all but 60 days stayed, and a one-year probationary term is appropriate in this case. A 60-day suspension period will give Ms. Askew time to adequately structure her practice. A concurrently commencing one-year period of supervised probation will ensure that she does in fact take all the steps needed to achieve that goal. Moreover, if it is not an automatic consequence of her suspension, we also direct that Ms. Askew be removed from all panel lists for court-appointed counsel in Superior Court and this court, -without prejudice to her ability to reapply once she has completed her term of suspension and probation.
I. Facts and Procedural History
The following facts were found by the Hearing Committee and, without objection from Ms. Askew, accepted by the Board
It is court-appointed counsel’s obligation to notify a client of her appointment “by
Meanwhile, Mr. Middleton was unaware either that his first court-appointed counsel had died or that a new attorney, Ms. Askew, had been appointed to represent him. In September 2010, now three months after Ms. Askew’s appointment, Mr. Middleton wrote to the court seeking information on the status of his appeal. The court notified Mr. Middleton that he had new counsel, gave him Ms. Askew’s contact information, and forwarded Mr. Middleton’s letter to Ms. Askew. This did not prompt Ms. Askew to locate or reach out to Mr. Middleton, however. Moreover, she did not respond to Mr. Middleton when he (using the contact information provided by the court) wrote to her, told her he wanted to “have some input into what is going into the brief because this is my life on the line,” and asked her to “tell me what I can do to help you help me.” Indeed, she made no attempt to contact Mr. Middleton about his pending appeal for the next five months.
In this five-month period Mr. Middleton made many unsuccessful attempts to contact Ms. Askew by mail, phone,
In February 2011 Ms. Askew sent Mr. Middleton a draft brief to file in his appeal — again to the incorrect USP Lewis-burg address. She testified before the hearing committee that it was only when Mr. Middleton’s sister informed her that he had not received the brief that Ms. Askew “finally realized” — nine months after her appointment — “that she had been using an incorrect address.”
This draft brief was the first and last communication that Mr. Middleton received from Ms. Askew during the fifteen months she represented him.
Even after her removal as counsel, Ms. Askew continued to impede Mr. Middleton’s attempt to pursue an appeal. Although she was ordered by the court to turn over all documentation to successor counsel within 20 days, she did not respond to any of the repeated attempts by Mr. Middleton’s new counsel to obtain the documents related to his case
Bar Counsel opened its investigation on October 12, 2011. A hearing was held on January 11, 2013 before the Ad Hoc Hearing Committee; Bar Counsel presented substantial evidence regarding the alleged violations and Ms. Askew’s persistent neglect, including testimony from Mr. Middleton and documentation of his extensive attempts to contact her. Ms. Askew stipulated to the charges and many of the underlying facts; she testified only in mitigation of sanction.
Specifically, Ms. Askew described the disorganized nature of her practice and her sporadic difficulties receiving mail. She proffered no excuse for her failure to respond to letters, calls, and emails from Mr. Middleton and his family, but she asserted that she did not receive notice of her removal from Mr. Middleton’s case or mail from successor counsel as the result of “off-and-on” mismanagement of mail at a shared office arrangement with other CJA panel attorneys. The Hearing Committee did not credit this testimony “as Respondent presented no supporting evidence or documentation showing late-forwarding of mail by the virtual office manager or landlord, or that other tenants at her address experienced mail problems, or that the landlord or virtual office manager had been notified of a mail problem.”
On February 1, 2013, Bar Counsel filed a Proposed Findings of Fact, Conclusions of Law, and Recommendations as to Sanctions. Ms. Askew filed her reply on February 25, 2013 in which she again conceded misconduct described by Bar Counsel, but requested that the Hearing Committee impose a stayed public censure with one year probation. On May 22, the Hearing Committee issued its report adopting Bar Counsel’s recommendation for a stayed 30-day suspension pending successful completion of one year of probation with conditions, including supervision by a practice monitor. The Board adopted the factual findings and the proposed sanctions of the Hearing Committee, and recommended that this court make the implementation of the recommendations of the practice monitor as an additional mandatory condition of probation. No exceptions were filed to the report and recommendation of the Board.
II. Analysis
As Ms. Askew has conceded all charged rule violations, the only issue before the court is the appropriate sanction. This court values and heavily relies upon the recommendations of the Board on Professional Responsibility, but “[ultimately ... the system of attorney discipline, including the imposition of sanctions, is the responsibility and duty of this court.” In re Cleaver-Bascombe, 986 A.2d 1191, 1195 (D.C. 2010) (internal quotation mark omitted); see also D.C. Bar R. XI, § 9(h), (j). Our general deference to the Board’s recommendation regarding sanctions, D.C. Bar R. XI, § 9(h)(1), will yield “[w]hen the court disagrees with the Board as to the seriousness of the offense or the demands of consistency.” In re Cleaver-Bascombe, 986 A.2d at 1195 (internal quotation marks omitted). In determining the appropriate sanction we look to a number of factors, including: “(1) the nature of the violation, (2) the mitigating and aggravating circumstances, (3) the need to protect the public, the courts, and the legal profession, and (4) the moral fitness of the attorney.” Id. at 1195 (citation and internal quotation
First, examining the nature of the violation, we agree with the Board that the violations in this case were serious, “substantial,] and intentional.” For approximately 15 months, Ms. Askew failed to communicate with Mr. Middleton, a client she knew to be indigent and incarcerated. For much of that time she failed to take basic steps to ascertain his correct address to allow her to contact him, and despite Mr. Middleton’s persistent efforts to engage her, Ms. Askew actively ignored both him and the family members who reached out to her on his behalf. She ignored even communications from Mr. Middleton forwarded to her by this court after Mr. Middleton contacted the court to alert us to her failure to communicate with him. Furthermore, for approximately 15 months, she failed to do the work this court ordered her to do on Mr. Middleton’s behalf — file a brief with this court. Although she had been ordered on appointment to file the brief in 60 days, she filed nine motions for extensions of time before her appointment was vacated.
Ms. Askew offered no mitigating explanation for her neglect of Mr. Middleton’s case. Although Ms. Askew apparently regarded her failure to adequately organize her practice or secure a consistent and reliable method of receiving mail as mitigating factors in this case, we view her testimony on this subject differently. To begin with, setting up organizational and communication systems is a fundamental element of legal practice. Thus, we perceive these facts not as mitigation but rather as a source of ongoing concern as to Ms. Askew’s ability to adequately fulfill her duties as a lawyer. See In re Stow, 633 A.2d 782, 784-85 (D.C. 1993) (listing disorganization as one of the “troublesome aspects of Respondent’s practice”). In any event, in testimony that the Hearing Committee did not credit, see supra page 58, Ms. Askew only proffered office management challenges as the reason why she was unaware either that she had been removed as Mr. Middleton’s counsel or that successor counsel had made repeated requests for her files.
We also consider “the need to protect the public, the courts, and the legal profession.” In re Cleaver-Bascombe, 986 A.2d at 1195 (internal quotation mark omitted). We weigh heavily the fact that Ms. Askew was appointed to represent Mr. Middleton under the Criminal Justice Act. “The District of Columbia Criminal Justice Act, like its federal counterpart, was designed to ensure that indigent defendants would receive adequate counsel.” Gregory v. United States, 393 A.2d 132, 141 (D.C. 1978) (footnote omitted). In recognition of the fact that, indigent defendants, resources aside, may not have the ability even to locate counsel to represent them (particularly if they are incarcerated), this court endeavors to fulfill its responsibility to provide counsel under the Criminal Justice Act by “developing] and maintaining] a panel of practicing attorneys who are approved by the court as competent to provide adequate representation on appeal for persons qualifying under the [CJA].” Plan for Furnishing Representation to Indigents Under the District of Columbia Criminal Justice Act (hereinafter “CJA Plan”), § 111(A), available at http://www. dccourts.gov/internei/documents/cja_plan. pdf. Our aim is to provide indigent defendants with “not just the ‘mere formal appointment’ of someone who happens to be a lawyer but more critically legal assistance that is reasonably diligent, conscientious and competent.” United States v. Bailey, 581 F.2d 984, 989 (D.C.Cir. 1978) (footnotes omitted); see also CJA Plan, § 111(A) (the court seeks to ensure that indigent defendants are offered counsel of the “highest qualifications”). Needless to say, this court relies on court-approved panel attorneys who receive court appointments to fulfill their obligations to competently represent and zealously advocate for their clients. When a panel attorney so egregiously fails to fulfill this obligation, it undermines the aim of the Criminal Justice Act, and reflects negatively on both this court and the legal profession.
Lastly, we consider Ms. Askew’s “moral fitness” to continue to represent clients in the District of Columbia. A determination as to the moral fitness of an attorney encompasses an attorney’s conduct while representing clients as well as compliance with Bar Counsel’s investigation and the attorney’s representations made to the Hearing Committee. See In re Kami, 5 A.3d 1, 17 (D.C. 2010) (determining that attorney lacks moral fitness due to “lack of responsiveness and dishonesty to her clients, Bar Counsel and the Hearing Committee”). In this case, both the Hearing Committee and the Board “did not credit some of Respondent’s testimony,” but stopped short of determining that Ms. Askew had been intentionally dishonest, and observed only that her “apparent confusion about her correspondence with Mr. Middleton is consistent with the disorganization in her practice.” We disagree that certain points of Ms. Askew’s questionable testimony can be attributed to “confusion.” Indeed, we are troubled by Ms. Askew’s willingness at the hearing to make representations that not only contradict prior factual assertions, but also would lack the ring of truth even if they had been made in the first instance. See, e.g., swpra notes 2 & 7.
This court has imposed more lenient sanctions of stayed 30-day or even 90-day suspensions where we have viewed counsel’s conduct as a deviation from a regular course of responsible legal practice. For example, we imposed a stayed 30-day suspension in In re Manee, 869 A.2d 339, 342 (D.C. 2005), as a sanction for counsel’s neglect; we determined that counsel’s nearly complete abdication of his responsibilities to his client were but a single “aberration” in the career of an attorney with an “ ‘excellent reputation’ and ‘lengthy history’ as a criminal practitioner.” There is no similar information in the record indicating that Ms. Askew’s neglect of Mr. Middleton is “aberrational.” Rather, her belated realization at the hearing that Mr. Middleton, both indigent and incarcerated, was a vulnerable client who “[didjn’t get to pick” his attorney and who could do little to remedy his inability to effectively communicate with her, suggests a more fundamental failure to understand her duties as court-appointed counsel. We also note that this court has vacated Ms. Askew’s CJA appointment in at least one other criminal case in which she failed to file the brief or otherwise respond to court order.
Likewise we have imposed stayed suspensions of 30 and 90 days respectively for similar neglect only after having determined that there were substantial mitigating factors. See In re Baron, 808 A.2d 497, 498 (D.C. 2002) (stayed 30-day suspension with one year probation was appropriate where respondent testified that she was significantly overwhelmed by the responsibilities of being the sole care provider for her disabled son, and where, as a consequence of an earlier received admonition, counsel had already taken steps to improve the structure of her practice); In re Ontell, 724 A.2d 1204, 1205 (D.C. 1999) (90-day suspension, 60-days stayed, with one year probation appropriate where respondent experienced complications with side effects of medication for a serious medical condition at the time of representation). But as discussed above, Ms. Askew put forward no excuse as to why she failed so completely to communicate with Mr. Middleton; following Bar Counsel’s investigation, the Board concurred with the Hearing Committee’s assessment that “the reason for the neglect ‘remain[ed] unclear.’ ”
In analogous cases of what Ms. Askew’s own counsel described as “egregious neglect” of a court-appointed client, without mitigating circumstances, this court has imposed a suspension of six months or more and has required counsel to serve some period of that suspension. See, e.g., In re Rosen, 470 A.2d 292, 293 (D.C. 1983) (imposing six-month suspension for neglect and intentional failure to carry out client’s objectives in court-appointed representation); In re Lieber, 442 A.2d 153, 156 (D.C. 1982) (imposing six-month suspension where respondent was appointed to represent a client as a part of the Superior Court’s Inmate Civil Assistance Project and then failed to enter an appearance or notify the Superior Court that he did not plan to represent the client); In re Whit-
Against this backdrop, we think it appropriate to impose a six-month suspension, with all but 60 days stayed. To the extent Ms. Askew needs time to restructure her practice and ensure that she has adequate mail delivery, phone messaging, a working knowledge of the Corrlinks system, and a functioning computer, 60 days should give her the time she needs. A concurrently commencing one-year period of supervised probation — with all conditions recommended by the Board
Accordingly, it is hereby ordered that, effective 30 days from this decision, Respondent Abigail Askew is suspended for a period of six months, all but 60 days stayed, with a concurrently commencing period of one-year supervised probation with all conditions recommended by the Board. See supra note 15.
So Ordered.
. The Hearing Committee heard testimony from Mr. Middleton and, after receiving a stipulation from Ms. Askew admitting to a number of adverse facts, it heard testimony from Ms. Askew in mitigation.
.The Hearing Committee did not credit Ms. Askew’s claim that she had called USP Lewis-burg in the fall of 2010 and had been told that “they don’t do any phone calls, not even legal.” It further noted that this assertion was inconsistent with Mr. Middleton’s testimony that he could receive calls from counsel in prison and that, even if Ms. Askew had in fact made a phone call to USP Lewisburg, she had failed to take the obvious steps of either ”ask[ing] personnel at USP Lewisburg whether Mr. Middleton was residing there or ... talking] to his case manager."
We note that, pursuant to BOP policy in place since 2002, inmates are authorized to have unmonitored telephone conversations with counsel with BOP staff assistance. BOP Program Statement, No. 5264.07, § 540.103 (Jan. 31, 2002), available at http://www.bop. gov/policy/progstat/5264_007.pdf. We also note that Ms. Askew acknowledged that once she realized that Mr. Middleton was at USP Canaan, she could have called him there. See infra note 6.
. Mr. Middleton testified that he left Ms. Askew several voicemail messages during this period "[a]sking her to get in touch with me, write me, just let me know what's happening with my brief[,] if she's going to file anything ... when’s the next date when it’s due.” Ms. Askew did not respond to these messages.
. Mr. Middleton emailed Ms. Askew using Corrlinks, the inmate email service which Mr. Middleton had access to while incarcerated at USP Canaan. To receive correspondence from an inmate on Corrlinks, the recipient must agree to accept emails. Ms. Askew conceded both that she had agreed to accept emails from Mr. Middleton and that, having
. As noted above, Ms. Askew had no contact with Mr. Middleton's family from the time of her appointment to February 2011, but apparently, she finally exchanged "a few brief emails” with Mr. Middleton’s sister between February and April 2011.
. Ms. Askew stipulated that the only time she communicated with Mr. Middleton was when she sent him introductory letters in 2010 to the wrong address and when she sent him a copy of the draft brief. She then testified that she "made no attempt to call or to visit Mr. Middleton after [she] found out he was at [USP] Canaan,” which she admitted she "definitely could have done. I could have at least called.”
. Although Ms. Askew told Mr. Middleton’s sister in an email dated April 6, 2011 (admitted as an exhibit at the hearing), that she had not received Mr. Middleton's comments about the draft brief, Ms. Askew admitted before the hearing committee that she had received his feedback. Indeed, inconsistent with her stipulation that she did not communicate with him after she sent him the draft brief, see supra note 6, she testified that she had written him back in May 2011. She further testified that she could not provide a copy of the letter she had purportedly written because a computer virus "basically ate its way through [her] computer," and she had failed to backup her files properly. Noting the inconsistency with her stipulation and Mr. Middleton's testimony, the Hearing Committee did not credit Ms. Askew’s assertion that she had written Mr. Middleton in May 2011.
.Ms. Askew asserted that she interpreted Mr. Middleton’s comments as denying her permission to file the draft brief; indeed she claimed, without pointing to any documentation, that he was "very clear” that he had not given her approval to file the brief and she did not have his permission to file the brief without his approval — but she did not explain why she took no further steps to communicate
. Ms. Askew testified that she received this order in the mail from the court but did not read it. She ultimately "discovered]” the court’s order when she was putting together a copy Mr. Middleton’s file for Bar Counsel; she stated that this court’s order "was on my desk in a pile of stuff.... [I]t was just under another folder on my desk. It was in a stack.”
. Ms. Askew learned that her appointment had been vacated when, in October 2011, she filed a motion to file out of time along with a brief for Mr. Middleton. (This brief appears strikingly similar to the draft she had sent Mr. Middleton eight months earlier and apparently was unaffected by the computer virus that she claimed had infected her computer.) The court issued an order on November 17, 2011 denying her motion to file out of time and declining to accept the brief.
We note again that Ms. Askew testified that she did not file a brief on Mr. Middleton’s behalf during the pendency of her representation because she thought she did not have permission to do so. See supra note 8. In the end, she testified that she was prompted to file the brief when she received a copy of Mr. Middleton’s letter to Bar Counsel, and thus learned that "he was complaining because no brief had been filed.”
. Successor counsel sent Ms. Askew letters on October 3, October 18, and November 8, 2011.
. Ms. Askew eventually provided further information to Mr. Middleton's counsel after her investigation by Bar Counsel had commenced. Ms. Askew testified that this transfer occurred when she handed over to succes
. Five of those extensions were sought after Ms. Askew sent a draft brief to Mr. Middleton in February 2011. But when she at last filed a brief on Mr. Middleton’s behalf after she had been removed as his counsel, the brief she filed was substantially similar to the February draft, indicating that she had done little if any additional work on it in this seven month period. See supra note 10.
. Even if she had not received the court order demanding that she turn over all documentation to successor counsel or successor counsel's requests, Ms. Askew had an independent obligation to do so upon termination
. The Board recommended one year of supervised probation with the following conditions: Respondent (1) shall not commit any other disciplinary rule violations; (2) shall attend 10 hours of Continuing Legal Education classes offered by the D.C. Bar, pre-approved by the Bar Counsel, and provide to Bar Counsel proof of attendance at such classes within 30 days of attendance, but not later than 30 days before the expiration of probation; (3) shall be evaluated by the D.C. Bar Lawyer Assistance Program, and sign a limited waiver permitting the Program to confirm compliance with this condition and cooperation with the evaluation process; (4) shall undergo an assessment by the D.C. Bar's Assistant Director for Practice Management Advisory Services, or his designee, implement any recommendations he may make, and sign a limited waiver permitting that program to confirm compliance with this condition and cooperation with the assessment process. We note that Ms. Askew "has recognized that she would benefit from the conditions of probation proposed by Bar Counsel; and thus, has accepted probation and all of the proposed conditions for probation including practice monitoring and LAP evaluation."
Reference
- Full Case Name
- In re Abigail ASKEW, A Suspended Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 497703)
- Cited By
- 17 cases
- Status
- Published