In re Abigail Askew

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 17-BG-0152

IN RE ABIGAIL ASKEW, RESPONDENT.

A 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
(13-BD-238)

(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
 2

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).
 3

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.
 4

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
 5

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.”

1
The Hearing Committee found that respondent’s testimony about her
attempt to contact a counselor at Mr. Jackson’s federal institution was
uncorroborated, implausible, and deliberately false.
2
The Hearing Committee found that respondent’s testimony regarding her
retention of hard-copy documents was inconsistent with her testimony in Askew I.
 6

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.

3
The Hearing Committee specifically credited respondent’s testimony that
she wrote three letters to Mr. Jackson, because the testimony was corroborated by
her motion filings and by the third letter, which respondent produced at her
hearing.
 7

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

4
Respondent contends that she did not in fact respond late to the court order
issued on July 27, 2019. She testified that she filed a motion in response to this
order on September 10, 2012, the day it was due, and points to the fact that her
filing bears stamps indicating both a September 10, 2012, date of receipt and a
September 12, 2012, date of receipt. The Hearing Committee found this testimony
(continued…)
 8

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).

(…continued)
to be deliberately false and “an attempt to capitalize on a [c]ourt date-stamping
error.”
 9

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 Street.5 She testified that her mail was sometimes

returned without her knowing it, and that by the time she received some of the

court’s orders, “they were beyond their deadlines.” She testified that she made

arrangements to have her mail forwarded from her office to a P.O. Box address

near her home in Bowie, Maryland to try to address the problem.6 She explained

that she could not file a brief in response to the court’s orders because she needed

first “to talk to Mr. Jackson or have some type of communication with him[.]”

On June 19, 2013, upon Ms. Askew’s failure to respond to this court’s

March 26, 2013, order, we issued an order vacating her appointment and

appointing replacement counsel for Mr. Jackson. The court furnished a copy of

5
The Hearing Committee found that respondent’s testimony regarding mail
issues did “not ring true” and was deliberately false.
6
In January 2013, respondent informed this court that she would henceforth
be using her P.O. Box address. Respondent testified that she did not receive the
court orders filed on August 1, 2011; October 5, 2011; February 28, 2012; and
March 26, 2013. Two of the orders that were addressed to her office address —
the April 17, 2012, and May 18, 2012, orders — were returned to the court as
undeliverable. However, the court orders dated August 1, 2011; October 5, 2011;
February 28, 2012; and March 26, 2013 were not returned by the Post Office.
 10

this order to Mr. Jackson at Fort Dix. Within five months of his appointment,

replacement counsel was able to locate Mr. Jackson and communicate with him.

On November 27, 2013, replacement counsel filed a motion to dismiss the appeal

accompanied by a statement signed by Mr. Jackson waiving his right to appeal, and

this court granted that motion.

On June 30, 2015, the Hearing Committee issued its Report and

Recommendation, rejecting respondent’s contention that she had done “everything

[she] could in this case” and finding that Disciplinary Counsel had proven all seven

charged violations. The Hearing Committee also found that the record was

“replete” with testimony (the testimony mentioned in notes 1, 2, 4, 5, and 6 supra,

as well as testimony relating to when respondent received the order terminating

both her representation of Mr. Middleton and her membership in the Criminal

Justice Act (“CJA”) panel) “that either rings false or was otherwise contradicted by

the evidence.” The Hearing Committee emphasized that, in Askew I, respondent

“violated the same Disciplinary Rules charged in the instant matter.”

The Board issued its Report and Recommendation on February 9, 2017,

incorporating by reference the Hearing Committee’s Report and adopting the

Hearing Committee’s recommendations.
 11

II.

This court reviews de novo the Board’s legal conclusions. In re Szymkowicz,

195 A.3d 785, 788 (D.C. 2018) (per curiam). We accept “findings of fact made by

the Board unless they are unsupported by substantial evidence of record.” D.C.

Bar R. XI, § 9(h)(1); In re Johnson, 103 A.3d 194, 197 (D.C. 2014).7 We also give

deference to the Board’s recommended disposition unless doing so “would foster a

tendency toward inconsistent dispositions for comparable conduct or would

otherwise be unwarranted.” D.C. Bar R. XI, § 9(h)(1); In re McClure, 144 A.3d

570, 572 (D.C. 2016) (per curiam). “Ultimately, however, . . . the imposition of

sanctions[] is the responsibility and duty of this court.” In re Haar, 698 A.2d 412,

423 (D.C. 1997). The final decision on sanctions is “committed to this Court’s

discretion.” In re Dickens, 174 A.3d 283, 296 (D.C. 2017).

7
The Board must defer to the factual findings of the Hearing Committee so
long as those findings are supported by substantial evidence. In re Cleaver-
Bascombe, 986 A.2d 1191, 1194 (D.C. 2010) (per curiam).
 12

III.

We have no difficulty sustaining the Board’s conclusion that respondent

violated each of the Rules cited in the Specification of Charges.

A. Rules 1.1(a) and (b)

Rule 1.1(a) provides that “a lawyer shall provide competent representation to

a client.” D.C. Bar Appx. A, Rule 1.1(a). “Competent representation requires the

legal knowledge, skill, thoroughness, and preparation reasonably necessary for the

representation.” Id. Rule 1.1(b) provides that “a lawyer shall serve a client with

skill and care commensurate with that generally afforded to clients by other

lawyers in similar matters.” D.C. Bar Appx. A, Rule 1.1(b). These rules address

failures that constitute a “serious deficiency” in an attorney’s representation of a

client. In re Yelverton, 105 A.3d 413, 421–22 (D.C. 2014). “Mere careless errors

do not rise to the level of incompetence.” In re Evans, 902 A.2d 56, 70 (D.C.

2006) (per curiam).
 13

Respondent argues that her failure to locate her client does not constitute a

Rule 1.1 violation because there was no prejudice to Mr. Jackson. She also

contends that her inability to locate her client was a mere careless error that did not

rise to the threshold of serious deficiency. We do not agree. A serious deficiency

“has generally been found in cases where the attorney makes an error that

prejudices or could have prejudiced a client and the error was caused by a lack of

competence.” Yelverton, 105 A.3d at 422 (emphasis added). Because actual

prejudice is not required, a fortuitous lack of injury to the client does not shield a

respondent from discipline in response to her neglect of her professional

obligations. In re Speights, 173 A.3d 96, 101 (D.C. 2017) (per curiam). Here,

respondent’s failure to successfully make contact with Mr. Jackson over the span

of approximately four years could have prejudiced him by putting his appellate

rights in jeopardy. Further, respondent’s meager and lackadaisical efforts to find

her client over a four-year period cannot fairly be characterized as merely careless.

To illustrate, respondent either knew or should have known, from the docket sheet

in Mr. Jackson’s Bail Reform Act case, that Mr. Jackson, who in September 2008

had been committed pending disposition, had received a sentence of sixteen

months’ imprisonment and three years of supervised release; and that, by January

2010, there was at least a possibility that he was on supervised release and might

be found through a CSOSA supervisory office. Respondent’s failure to recognize
 14

this possibility until she received advice from this court when her motion to

dismiss the appeal was denied, evinced a failure to familiarize herself with the

record, which sounds in incompetence rather than mere carelessness.8 In addition,

respondent’s “dropping of the ball in a litigation matter through unexcused failure

to make required filings . . . unquestionably violate[d] Rule 1.1.” In re Sumner,

665 A.2d 986, 989 (D.C. 1995).

B. Rule 1.3(a)

Rule 1.3(a) states that an attorney “shall represent a client zealously and

diligently within the bounds of the law.” D.C. Bar Appx. A, Rule 1.3(a); Speights,

8
Respondent also makes the curious argument that Rule 1.1 violations arise
only where an attorney makes a single error, rather than an aggregation of errors,
and where there was also evidence that the attorney was inexperienced. But the
fact that respondent Askew was an experienced attorney (although she was new to
the CJA panel, having joined it in 2008 or 2009, she testified that she worked for
over six years as a prosecutor in the Cook County State’s Attorney’s Office after
being admitted to the Illinois bar in 2000) and the fact that she persisted in her
deficient conduct, did not diminish her obligations under Rule 1.1. See, e.g., In re
Mance, 869 A.2d 339, 341 n.8 (D.C. 2005) (per curiam) (“well-respected” defense
attorney sanctioned for Rule 1.1 violation); In re Drew, 693 A.2d 1127 (D.C.
1997) (per curiam) (suspending attorney for Rule 1.1(a) and (b) violations in the
course of representing two defendants in separate criminal appeals); In re
Douglass, 745 A.2d 307 (D.C. 2000) (per curiam) (publically censuring an
attorney for violating several rules, including Rule 1.1, in connection to various
aspects of probate representation).
 15

173 A.3d at 135. We have interpreted this Rule to prohibit a failure to act for a

“significant time to further a client’s cause” independently of whether the client is

ultimately prejudiced by the delay. In re Starnes, 829 A.2d 488, 503-4 (D.C. 2003)

(per curiam). “Neglect of client matters is a serious violation of the obligation of

diligence.” D.C. Bar Appx. A, Rule 1.3, Comment 8.

Respondent’s failure to make contact with her client and file a brief on his

behalf for a period of approximately four years clearly implicates Rule 1.3(a).9 As

the Hearing Committee emphasized, respondent “took only sporadic action to

locate and communicate with” Mr. Jackson, “waiting several months (and at one

point approximately a year) between action steps.” There also was no evidence

that respondent attempted to make an in-person visit to Mr. Jackson’s supervisory

officer when respondent’s efforts at telephone and letter contact failed (even

though, we take notice, the CSOSA office is located near the courthouse), and no

evidence that respondent asked Mr. Jackson’s trial counsel, the Assistant United

States Attorney who had been assigned to this case, or this court’s Clerk’s Office

for assistance in locating Mr. Jackson. The Board’s finding that respondent failed

9
Respondent testified that she reviewed Mr. Jackson’s trial transcripts,
performed research, and drafted a brief, but acknowledged that she could not
produce any hard copy of a draft brief that she had prepared for his appeal.
 16

to act with diligence and zeal in representing Mr. Jackson is supported by

substantial evidence.

C. Rules 1.4(a) and 1.4(b)10

Rule 1.4(a) provides that “[a] lawyer shall keep a client reasonably informed

about the status of a matter and promptly comply with reasonable requests for

information.” D.C. Bar Appx. A, Rule 1.4(a). Rule 1.4(b) provides that “[a]

lawyer shall explain a matter to the extent reasonably necessary to permit the client

to make informed decisions regarding the representation.” D.C. Bar Appx. A, Rule

1.4(b). “To meet that expectation, a lawyer not only must respond to client

inquiries but also must initiate communications to provide information when

needed.” In re Hallmark, 831 A.2d 366, 374 (D.C. 2003). Further, an attorney

must make more than a pro forma attempt to initiate communications. See In re

Geno, 997 A.2d 692, 693 (D.C. 2010) (per curiam) (holding that “a few phone

calls and one letter sent on the eve of the hearing” were insufficient to satisfy Rule

1.4). Here, respondent failed to communicate with Mr. Jackson for approximately

10
Respondent’s brief asserts that she did not violate rule 1.4(h). Given that
there is no Rule 1.4(h) and that respondent was not charged with violating Rule
1.4(h), we interpret respondent’s statements as assertions that she did not violate
Rule 1.4(b).
 17

four years, never actually having an exchange with him during the period of her

appointment to represent him. Her attempts to contact her client were perfunctory,

at best, and fell short of her ethical duties under Rules 1.4(a) and (b).

D. Rule 3.4(c)

Pursuant to Rule 3.4, a lawyer shall not “[k]nowingly disobey an obligation

under the rules of a tribunal except for an open refusal based on an assertion that

no valid obligation exists.” D.C. Bar Appx. A, Rule 3.4(c). We have previously

recognized that a failure to meet filing deadlines can violate Rule 3.4. See In re

Murdter, 131 A.3d 355, 356 (D.C. 2016) (per curiam) (holding that attorney’s

failure to “file appellate briefs for convicted indigent defendants he was appointed

to represent or respond to numerous orders in connection therewith” constituted a

violation of Rule 3.4). Respondent emphasizes that she could not file a brief until

she had made contact with Mr. Jackson. Nevertheless, she remained under an

obligation to respond to, and not simply ignore, court orders.11 The evidence

shows that respondent responded late, or did not respond at all, to court orders at

least sixteen times in this case, not counting the two orders that were returned to

11
Respondent first informed this court that she was experiencing difficulties
in contacting her client in a motion filed February 2011, approximately nineteen
months after she was appointed.
 18

the court as undeliverable. We agree with the Board that Ms. Askew’s repeated

disregard of court orders constitutes a violation of Rule 3.4(c).

In taking exception to the finding of a Rule 3.4(c) violation, respondent

contends that she reasonably believed she was absolved of any responsibilities

towards Mr. Jackson as of January 2013, which was when she testified that she

became aware of this court’s September 27, 2011, order entered in Middleton that

removed her from the CJA panel. The Hearing Committee rejected respondent’s

claim, finding that she remained counsel of record in Jackson until this court

vacated her appointment on June 19, 2013, and noting that respondent turned over

the Middleton file to replacement counsel before January 2013 (supporting an

inference that respondent knew of the Middleton order before that time). In

addition, despite respondent’s claim that she believed the Middleton order removed

her from Jackson, she submitted a motion to extend time in Jackson even after the

date she identified as the date when she received the Middleton order. As already

noted, the Committee found that respondent’s testimony regarding the Middleton

order was deliberately false.

E. Rule 8.4(d)
 19

Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to . . .

engage in conduct that seriously interferes with the administration of justice.”

D.C. Bar Appx. A, Rule 8.4(d). An attorney violates Rule 8.4(d) when her

improper conduct causes an unnecessary expenditure of time and resources that

taints a judicial proceeding in more than a de minimis way. See In re Cole, 967

A.2d 1264, 1266 (D.C. 2009).

Respondent’s repeated and unexplained failures to comply with court orders

delayed a resolution in Mr. Jackson’s case. Furthermore, because of respondent’s

misconduct, the court had to appoint replacement counsel for Mr. Jackson.

Respondent’s conduct is precisely the type of conduct that we have often held

violated Rule 8.4. See In re Ukwu, 926 A.2d 1106, 1142-43 (D.C. 2007) (holding

that an attorney’s failure to file a brief by the due date set by the court, when the

attorney had previously stated his intention to file a brief, violated Rule 8.4(d)); In

re Toppelberg, 906 A.2d 881 (D.C. 2006) (per curiam) (suspending attorney who

failed to comply with a court order for a Rule 8.4 violation).

IV.
 20

The purpose of imposing attorney discipline is not to punish the attorney, but

rather to serve the interests of the public and of the profession. Cleaver-Bascombe,

986 A.2d at 1199. In determining what sanction to impose, this court reviews a

respondent’s violations in light of all the relevant factors, which generally include

“(1) the seriousness of the conduct, (2) prejudice to the client, (3) whether the

conduct involved dishonesty, (4) violation of other disciplinary rules, (5) the

attorney’s disciplinary history, (6) whether the attorney has acknowledged his or

her wrongful conduct, and (7) mitigating circumstances.” In re Ekekwe-Kauffman,

210 A.3d 775, 797 (D.C. 2019) (per curiam). In addressing the fourth of these

factors, we simply restate that the Hearing Committee and Board found, and we

agree, that respondent’s conduct discussed herein violated seven of the Rules of

Professional Conduct. We address each of the other factors below (departing

somewhat from the order in which they are listed in Ekekwe-Kauffman).

As to the first of the foregoing factors, respondent’s neglect of Mr. Jackson’s

case was serious misconduct. Her failure to fulfill her obligations as a CJA

attorney undermines the Criminal Justice Act’s aim “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,” and “reflects negatively on both this court and the
 21

legal profession.” Askew I, 96 A.3d at 60 (internal quotation marks omitted). And

as to prejudice, the second factor, even though Mr. Jackson did ultimately decide

to forgo his appeal, it is possible that if he had had the benefit of the advice of

counsel during that four-year period, he might have decided not to waive his

appeal rights.

Focusing on her disciplinary history, the fifth factor, respondent urges us to

impose no more than a probationary sanction, asserting that the sanction imposed

in Askew I “was calculated to address the violations” in issue in the instant case. In

other words, she argues that she has already been disciplined for the conduct

involved here. We cannot agree. In our opinion in Askew I, we did allude to the

fact that respondent “failed to file the brief and respond to court order” in “one

other criminal case [Jackson],” in order to explain that the conduct involved in

Askew I was not “aberration[al].” Askew I, 96 A.3d at 61. However, contrary to

respondent’s claim that the relevant “facts were known by the Court of Appeals

when it imposed sanction in Askew I,” all the relevant facts of Jackson were not

before the court in Askew I. As the Board correctly concluded, the passing

reference to the instant matter in Askew I “does not evidence a full understanding

by the [c]ourt of the facts of this case.”
 22

We do agree with respondent, however, that the time periods involved in

Askew I and the instant case overlapped and that the violations involved here

“occurred at approximately the same period of time” as the violations sanctioned in

Askew I. Respondent was appointed to represent Mr. Jackson almost a year before

she was appointed to represent Mr. Middleton. Her initial efforts to contact Mr.

Jackson by letter in August 2009 and December 2009 or January 2010 predated her

appointment to represent Mr. Middleton in June 2010. Respondent sent a third

letter to Mr. Jackson in June 2011, months before this court vacated respondent’s

appointment to represent Mr. Middleton in September 2011, see Askew I, 96 A.3d

at 57, and months before Disciplinary Counsel opened its investigation into

respondent’s conduct in Mr. Middleton’s case in October 2011, id. at 58.

Respondent should have known that her attempts to contact Mr. Jackson were

inadequate. However, we cannot say that the disciplinary action initiated based on

respondent’s conduct in representing Mr. Middleton, or this court’s response to

respondent’s lack of diligence and neglect of Mr. Middleton, did anything to

caution respondent against Rules violations during the first two years of her

appointment to represent Mr. Jackson.

Respondent’s actions after the fall of 2011 included a motion to dismiss Mr.

Jackson’s appeal without prejudice and efforts over the next year to obtain
 23

information from CSOSA. Neither approach was adequate to the situation, but

both approaches were different from the mere letter-writing to Mr. Jackson at

federal institutions that had followed respondent’s learning that he was not housed

in the D.C. Jail. On this record, we cannot say that respondent learned nothing

from the disciplinary action that was initiated based on her misconduct in handling

the Middleton case. Thus, we do not agree with the Hearing Committee that

respondent “did nothing to bring herself into compliance” with her ethical

obligations. And even though, as the Hearing Committee correctly observed,

respondent’s “misconduct in the instant matter extended over a longer period of

time [than the Middleton matter that formed the basis for her discipline in Askew I]

(four years vs. 18 months),” respondent did not repeat the willful neglect — i.e.,

respondent’s “actively ignor[ing] both [the client] and the family members who

reached out to [respondent] on his behalf,” Askew I, 96 A.3d at 59, 60 — for which

we sanctioned her in Askew I.

The disciplinary action and termination-of-appointment in Middleton should

have reminded respondent of the importance of responding timely to court orders.

But in sanctioning respondent in Askew I in July 2014 — which came after we had

vacated respondent’s appointment to represent Mr. Jackson — we said that the 60-

day suspension we imposed would give her time to restructure her practice to
 24

ensure adequate mail delivery, so as to correct the problem that respondent blamed

for missing court orders. 96 A.3d at 62. We do not think it appropriate to sanction

respondent additionally for her untimely responses to court orders during a period

that pre-dates the corrective-action period we prescribed.

In light of all the foregoing, we will not treat respondent’s disciplinary

history as an aggravating factor; rather (and on this we agree with the Hearing

Committee and the Board), we think it is appropriate to consider respondent’s

violations in this case as if they were before the Board simultaneously with the

violations sanctioned in Askew I. The Hearing Committee read our previous cases

to set a “baseline” of a six-month suspension for the neglect of indigent criminal

defendants.12 That is a fair assessment, although in a number of cases we have

imposed only a three-month suspension for neglect of client matters and failure to

communicate with the client.13 The Hearing Committee and the Board, reasoning

12
See In re Murdter, 131 A.3d at 356 (imposing six-month suspension, all
but sixty days stayed); Askew I, 96 A.3d at 62 (imposing six-month suspension, all
but sixty days stayed); 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 Whitlock, 441 A.2d 989, 992 (D.C. 1982)
(imposing six-month suspension for neglect of court-appointed clients).
13
See, e.g., In re Alexander, 466 A.2d 447 (D.C. 1983) (suspending the
respondent for a period of three months for gross and willful neglect of two client
matters); In re Knox, 441 A.2d 265 (D.C. 1982) (three-month suspension for
(continued…)
 25

that a year’s suspension would have been the appropriate sanction for respondent’s

misconduct in the Middleton and Jackson matters taken together, recommended a

six-month suspension in this case on the ground that a six-month suspension (with

all but 60 days stayed) was already imposed in Askew I. “[C]onsistency with other

dispositions [might] call[] for imposition of [only] one six-month suspension for

respondent’s conduct involved in both proceedings.” Whitlock, 441 A.2d at 990.

But because most of the six-month suspension we imposed in Askew I was stayed,

we accept the Board’s recommendation of a six-month suspension.

An additional basis for accepting the Board’s recommendation of a six-

month suspension rather than imposing a three-month suspension relates to the

fourth factor that we consider when determining what sanction to impose: whether

the respondent’s conduct involved dishonesty. As already described, the Hearing

Committee identified seven instances of what it found to be deliberately false

testimony by respondent. While a three-month suspension might otherwise be

appropriate for respondent’s neglect of the matter for Mr. Jackson, see supra note

(…continued)
respondent’s failure to pursue client’s personal injury and worker’s compensation
claims over a period of years).
 26

13, we deem a three-month suspension to be inadequate in light of respondent’s

deliberately false statements to the Hearing Committee.

The sixth factor we consider is whether the attorney has acknowledged her

wrongful conduct. The Board highlighted respondent’s continued insistence that

she did everything she could to contact Mr. Jackson and her failure to express

remorse and to acknowledge her misconduct. In our view, however, the record

shows a lack of competence (e.g., it appears that the various means a competent

attorney would have used to locate her client never occurred to respondent, even

by the date of the hearing) rather than an unwillingness to express remorse or

acknowledge misconduct. We highlight respondent’s statement that she “d[id not]

know any other way to have done it [i.e. to have contacted Mr. Jackson],” as well

as her failure to comprehend how to fulfill her obligations when her lack of success

in reaching the client conflicted with the filing deadlines set by the court.

Finally, as to the seventh factor, the record does not suggest any mitigating

circumstances, such as an emotional or mental condition underlying the
 27

misconduct involved here,14 that should cause us to shorten or stay the suspension

we have determined is the appropriate sanction.

The Board recommended that we impose a fitness requirement, explaining

that “a significant factor” in its determination that a fitness requirement is

appropriate was the Hearing Committee’s finding that respondent deliberately

testified falsely about her conduct. To be sure, deliberately false testimony is an

aggravating factor, and we have treated it as such in adopting the recommendation

of a six-month suspension.15 But, as we have explained, a determination that a

substantial sanction is warranted is not necessarily sufficient to justify a fitness

requirement. In re Cater, 887 A.2d 1, 22 (D.C. 2005). The reason for imposing a

proof-of-fitness requirement is “conceptually different from the reason for

suspending a respondent for a period of time.” Id. In contrast to a suspension,

which is “intended to serve as the commensurate response to the attorney’s past

ethical misconduct, . . . [an] open-ended fitness requirement is intended to be an

14
Cf. In re Adams, 191 A.3d 1114, 1117 (D.C. 2018).
15
See, e.g., Cleaver-Bascombe, 892 A.2d at 413 (recognizing that a
respondent’s deliberately false testimony in a disciplinary proceeding is “a
significant aggravating factor”); In re Corizzi, 803 A.2d 438, 442-43 (D.C. 2002)
(indicating that dishonest conduct including false statements made to Bar Counsel
during investigation was an aggravating factor).
 28

appropriate response to serious concerns about whether the attorney will act

ethically and competently in the future, after the period of suspension has run.” Id.

“[T]o justify requiring a suspended attorney to prove fitness as a condition of

reinstatement, the record in the disciplinary proceeding must contain clear and

convincing evidence that casts a serious doubt upon the attorney’s continuing

fitness to practice law.” In re Ditton, 980 A.2d 1170, 1174 (D.C. 2009) (brackets

and internal quotation marks omitted). “[T]he term ‘doubt’ . . . connote[s] real

skepticism, not ‘just a lack of certainty.’” Cater, 887 A.2d at 24. This court’s

primary “concern is that [a respondent’s] resumption of the practice of law will not

be detrimental to the integrity and standing of the Bar, or to the administration of

justice, or subversive to the public interest.” Id. at 22 (internal quotation marks

and brackets omitted).

We said in Askew I that the record, which suggested respondent’s

“fundamental failure to understand her duties as court-appointed counsel,” 96 A.3d

at 61, warranted a period of suspension and probation, but no fitness requirement.

The instant case involves that same, largely contemporaneous, fundamental failure

by respondent to understand her duties as court-appointed counsel. But nothing in

the current record gives us more “real skepticism” about respondent’s fitness to
 29

practice law than we had when we decided Askew I.16 Cater, 887 A.2d at 24. It is

true that in Askew I, we did not have a finding by the Hearing Committee that

respondent’s testimony was deliberately dishonest; but we did “disagree that

certain points of Ms. Askew’s questionable testimony [could] be attributed to

[mere] ‘confusion.’” Askew I, 96 A.3d at 60. In addition, taking a step beyond the

Hearing Committee’s assessment that there were “contradictions” between some of

respondents’ factual assertions, we observed that some of her assertions “lack[ed]

the ring of truth even if they had been made in the first instance.” Id. Not having

imposed a fitness requirement on the record in Askew I (which, like the record

here, contained questionable assertions about respondent’s “difficulties receiving

mail,” 96 A.3d at 58; about a telephone call she placed to a federal prison, id. at 55

n.2; and about her non-retention of hard copies of documents, id. at 56 n.7, and

additionally involved respondent’s affirmative neglect of her client’s and his

family’s efforts to contact her), we discern no compelling reason to impose one

16
In Askew I, we did express our “ongoing concern as to Ms. Askew’s
ability to adequately fulfill her duties as a lawyer” because she had not set up a
consistent and reliable method of receiving her mail, which we observed is “a
fundamental element of legal practice.” In re Askew, 96 A.3d at 59. To the extent
that the violations involved in this case stemmed from mail problems, they were
from the same time period as was involved in Askew I. There is no evidence that
respondent failed to address those problems during her suspension, which we said
“should give her the time she needs.” 96 A.3d at 62. Accordingly, we do not have
that same worry about respondent’s ability to adequately fulfill her duties as a
lawyer.
 30

here.17 We also think a requirement that respondent take a practice management

course and work under the eye of a practice monitor during a probationary period,

rather than a fitness requirement, is appropriate here.

We therefore order that Abigail Askew is suspended from the practice of law

in the District of Columbia for a period of six months,18 during which time she

shall complete a practice management course approved by Disciplinary Counsel,

17
We note that we have not always imposed a fitness requirement on the
basis of a respondent’s deliberately false statements to the Hearing Committee.
See, e.g., In re Chapman, 962 A.2d 922 (D.C. 2009) (imposing a sixty-day
suspension, with thirty days stayed in favor of a one-year period of probation and
certain CLE courses, but no fitness requirement, where respondent neglected his
client’s case, resulting in her case being dismissed, had a minor disciplinary
history, showed a lack of remorse for the harm caused to the client, and “was found
to be deliberately dishonest in his dealings with Bar Counsel and not credible in his
testimony before the [Hearing] Committee”); In re Washington, 489 A.2d 452, 461
(D.C. 1985) (three-month suspension for respondent’s neglect of a client matter; no
fitness requirement despite the fact that the attorney gave “frivolous” testimony
and proffered explanations that “strain[ed] . . . credulity”); Alexander, 466 A.2d at
451-52 (suspending the respondent for a period of three months for gross and
willful neglect of two client matters; no fitness requirement despite the Board’s
rejection of respondent’s “dissembling excuses” and fact that respondent had
previously been informally admonished three times for neglecting a client’s
affairs).
18
Disciplinary Counsel advised us at oral argument that, in the wake of this
court’s August 17, 2017, order suspending her on an interim basis, respondent has
yet to file the affidavit as required under D.C. Bar R. XI, § 14(g), that would mark
the commencement of the period of suspension.
 31

and after which she shall serve a probationary period of one-year under the watch

of a practice monitor. It is

So ordered.