IN RE ABIGAIL ASKEW

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-BG-0849

IN RE ABIGAIL ASKEW, RESPONDENT.

A Suspended Member of the Bar of the

District of Columbia Court of Appeals

(Bar Registration No. 497703)

On Report and Recommendation of the Board on

Professional Responsibility

(BDN-037-12)

(Submitted January 8, 2014 Decided July 31, 2014)

Before THOMPSON and EASTERLY, Associate Judges, and KING,* Senior

Judge.

PER CURIAM: 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

*

Senior Judge Schwelb was originally a member of the panel assigned to

this case. Judge King replaced Judge Schwelb after he retired.

2

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 1.16 (d) (failing to protect client‟s interests on termination of representation),

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). Ms. Askew requested a public censure, stayed pending the successful

completion of a probationary term. But this request was rejected by both the

Hearing Committee and the Board on Professional Responsibility as unduly

lenient; the Board specifically noted Ms. Askew‟s “substantial and intentional

violations of the Rules.” Both the Hearing Committee and the Board

recommended instead that Ms. Askew receive a 30-day suspension, stayed, and

one year of supervised probation with specific conditions. Neither Ms. Askew nor

Bar Counsel has filed an exception to the Report and Recommendation of the

Board.

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

3

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

4

The following facts were found by the Hearing Committee and, without

objection from Ms. Askew, accepted by the Board1: On June 18, 2010, this court

made an appointment under the Criminal Justice Act (CJA) and assigned Ms.

Askew to represent Ronald Middleton, who sought to appeal the denial of his pro

se D.C. Code § 23-110 motion. This court appointed Ms. Askew to replace Mr.

Middleton‟s first court-appointed attorney in this matter, who had died. At the

time of Ms. Askew‟s appointment, a briefing order had been issued but no briefs

had been filed in the case.

It is court-appointed counsel‟s obligation to notify a client of her

appointment “by telephone or mail within thirty days of the appointment.”

Obligations of CJA Counsel in the District of Columbia Court of Appeals, (ver.

2008), available at http://www.dccourts.gov/internet/documents/cja_

obligations.pdf. Ms. Askew‟s order of appointment stated inaccurately that Mr.

Middleton was incarcerated at USP Lewisburg. In fact, Mr. Middleton had been

incarcerated at USP Canaan since 2008. Mr. Middleton‟s current address was

1

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.

5

listed below his signature on several letters from Mr. Middleton to predecessor

counsel which were in predecessor counsel‟s file; Ms. Askew had received that

file, including Mr. Middleton‟s letters to predecessor counsel, by August or

September 2010, but apparently did not review it with sufficient care. Ms. Askew

also concededly could have “quickly and easily” confirmed Mr. Middleton‟s

location on the Bureau of Prisons (“BOP”) website, which allows anyone to search

for an inmate by last name or BOP Register Number and learn their current

location. Instead, after her appointment, Ms. Askew attempted to contact Mr.

Middleton by sending letters to him at USP Lewisburg in July 2010 and then in

September 2010.2 Mr. Middleton did not receive these letters.

2

The Hearing Committee did not credit Ms. Askew‟s claim that she had

called USP Lewisburg 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 . . . talk[ing] 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.

6

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,3 and email.4 Unable to communicate

3

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.

7

directly with his attorney, Mr. Middleton also attempted indirect means. He wrote

multiple letters to the court asking for help in late 2010 and early 2011. These

letters, each including his correct address at USP Canaan and BOP Register

Number, were forwarded to Ms. Askew by the court. In addition, Mr. Middleton‟s

wife and sister attempted to contact Ms. Askew by phone and email during this

period; in their correspondence they informed Ms. Askew that Mr. Middleton had

not received her letters and asked her whether she had received Mr. Middleton‟s

messages and letters. Although she was aware that Mr. Middleton and his family

were attempting to reach her, Ms. Askew still made no attempt to contact Mr.

Middleton or his family.

In February 2011 Ms. Askew sent Mr. Middleton a draft brief to file in his

appeal—again to the incorrect USP Lewisburg 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

(…continued)

4

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 indicated that Mr. Middleton could

communicate with her in this manner, she then never logged into her Corrlinks

account to see if he had written her.

8

her appointment—“that she had been using an incorrect address.”5 Ms. Askew

testified that she looked at the return address on “his letters that he mailed to

[predecessor counsel]” and saw “that he was mailing them from [USP] Canaan.”

She then mailed the draft brief to Mr. Middleton at USP Canaan.

This draft brief was the first and last communication that Mr. Middleton

received from Ms. Askew during the fifteen months she represented him.6 After

receiving the draft, Mr. Middleton wrote Ms. Askew with comments about the

draft. He asked her respond to him “as soon as possible,” and to file the brief “as

soon as you can.” Mr. Middleton testified that he had communicated to Ms.

Askew that “the brief was good and [that he] wanted her to file it.”7 Ms. Askew

5

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.

6

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.”

7

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

(continued…)

9

made no revisions in response to his comments and did not respond to Mr.

Middleton.8

The court had ordered Ms. Askew to file Mr. Middleton‟s brief on appeal

within 60 days of her appointment. Before sending the brief to Mr. Middleton she

had already sought and received four extensions of time to file. After she sent Mr.

Middleton a draft of the brief in February 2011, Ms. Askew sought and received an

(…continued)

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.

8

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

with Mr. Middleton or to obtain his consent to file. She also asserted that Mr.

Middleton told her that he did not want her to represent him and that “[h]e wanted

to file [the brief] pro se, after I sent him the draft”—again without pointing to any

supporting documentation. In fact this court‟s docket reflects that after six months

of inaction by Ms. Askew, Mr. Middleton filed a request for appointment of new

counsel, not a request to proceed pro se. After another month passed with no

action by Ms. Askew, he repeated his request to have Ms. Askew removed and

only then asked to be given permission to file pro se the draft brief Ms. Askew had

sent him months earlier. As discussed below, the court appointed Mr. Middleton

new appellate counsel instead.

10

additional five extensions of time to file a brief on Mr. Middleton‟s behalf. She

filed a final motion to extend on June 10, 2011; she requested 15 days to file. She

still had not filed a brief by July 8, 2011, when the court granted her motion and

ordered that she file the brief, with a motion to file out of time, within 15 days.

Ms. Askew did not comply with this order. On August 18, 2011, this court ordered

Ms. Askew to file the brief within 10 days, along with a motion to late-file.9 When

Ms. Askew also failed to comply with this order, the court vacated Ms. Askew‟s

appointment in September 2011. Because Ms. Askew made no effort to determine

the status of Mr. Middleton‟s case between June and November 2011, however,

she was not aware that she had been removed as counsel until two months after her

appointment was vacated.10

9

Ms. Askew testified that she received this order in the mail from the court

but did not read it. She ultimately “discover[ed]” 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.”

10

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

(continued…)

11

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 case11; other than a copy of the § 23-110 hearing

transcript transmitted on November 15, 2011, she failed to turn over any

documentation to successor counsel including client correspondence or the draft

brief that she had prepared.12 As a result, successor counsel was forced to move

for further extensions of time to file his brief on Mr. Middleton‟s behalf.

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

(…continued)

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.”

11

Successor counsel sent Ms. Askew letters on October 3, October 18, and

November 8, 2011.

12

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 successor counsel “a

copy of what I gave [Bar Counsel]” when she met successor counsel by

happenstance at a CLE event.

12

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

13

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

“[u]ltimately . . . 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

14

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 marks omitted). Examining these factors, we agree with the

Board‟s conclusion that suspension was warranted but determine that the Board‟s

recommended discipline of a stayed 30-day suspension with one year of probation

is inadequate as a sanction for Ms. Askew‟s misconduct.

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

15

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.13 Her disregard of Mr. Middleton‟s case was so complete that she was

unaware that she had been removed as counsel for two months. Finally, even after

her appointment had been vacated, Ms. Askew continued to impede and delay

resolution of Mr. Middleton‟s appeal by failing to hand over to new counsel the

records he needed to prepare a brief on Mr. Middleton‟s behalf, with the result that

the successor counsel had to request additional time to complete his work. In

short, as the Hearing Committee found, Ms. Askew‟s “omissions and commissions

were not the result of inadvertence or errors of judgment but rather involved a

conscious disregard for the responsibilities that she owed to her client which are

the hallmarks of serious neglect.”

13

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.

16

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 13, 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.14 She never asserted that these were the reasons she failed over the

fifteen months of her representation to communicate with Mr. Middleton and his

family. In other words, Ms. Askew‟s testimony as to the disorganization of her

practice does not explain what the Hearing Committee described as Ms. Askew‟s

14

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 of her representation.

D.C. R. Prof. Conduct 1.16 (d).

17

“indifference . . . toward Mr. Middleton,” and “her lack of commitment and

dedication to Mr. Middleton‟s interests.”

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 “develop[ing] and maintain[ing] 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”), § III (A), available at

http://www.dccourts.gov/internet/documents/cja_plan.pdf. Our aim is to provide

indigent defendants with “not just the „mere formal appointment‟ of someone who

18

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, § III (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 Kanu, 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

19

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., supra notes 2 & 7.

Recognizing that “the choice of sanction is not an exact science,” In re

Edwards, 870 A.2d 90, 94 (D.C. 2005) (internal quotation marks omitted),

examination of all of these factors lead us to conclude that more is warranted in

this case than the Board‟s recommended discipline of a stayed 30-day suspension

with one year of probation. See id. (appropriate sanction “depend[s] on the facts

and circumstances of each particular proceeding” (internal quotation mark

omitted)). This conclusion is reinforced by our examination of other cases and our

determination that the Board‟s recommended discipline would “foster a tendency

toward inconsistent dispositions for comparable conduct.” In re Cleaver-

Bascombe, 986 A.2d at 1194.

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

20

regular course of responsible legal practice. For example, we imposed a stayed 30-

day suspension in In re Mance, 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 “[did]n‟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

21

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

22

Superior Court that he did not plan to represent the client); In re Whitlock, 441

A.2d 989, 992 (D.C. 1982) (imposing six-month suspension for serious neglect of

court-appointed clients); see also In re Stanton, 470 A.2d 272, 265, 278-79 (D.C.

1983) (imposing a full term of suspension of one year and one day for serious

neglect of two court-appointed clients who “do not have available to them the

protective mechanism that the client of the retained lawyer does: that is, simply to

change lawyers,” and noting that Respondent‟s “habit of keeping [them] largely in

the dark about the progress of their cases is deplorable”).

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 Board15—will ensure that Ms. Askew has in fact taken all the

15

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

(continued…)

23

steps needed to have a properly functioning law practice. See, e.g., In re Evans,

902 A.2d 56, 79 (D.C. 2006) (imposing six-month suspension with 90 days stayed

pending completion of one year of probation and requiring that respondent submit

proof of completion of CLE requirement prior to reinstatement “[t]o ensure that he

has sufficient preparation for reinstatement”); In re Edwards, 870 A.2d at 97

(imposing a period of oversight by a practice monitor commencing during

suspension where court and the Board remained “concerned that [respondent]

remains confused about [the appropriate operation of her legal practice] . . . and

still has not adopted adequate procedures in her law office”); see also In re Collins,

723 A.2d 1213, 1215 n.1 (D.C. 1999) (imposing reciprocal discipline including a

concurrent period of suspension and probation). In the meantime, if it is not an

automatic consequence of her suspension, Ms. Askew should be removed from all

panel lists for court-appointed counsel in Superior Court and this Court. This is

(…continued)

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.”

24

without prejudice to her ability to reapply to serve as court-appointed counsel once

she has completed her term of suspension.

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.