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In re Application for Disciplinary Action Against Askew

January 12, 2010

IN THE MATTER OF THE APPLICATION FOR DISCIPLINARY ACTION AGAINST BONNIE J. ASKEW, A MEMBER OF THE BAR OF THE STATE OF NORTH DAKOTA
DISCIPLINARY BOARD OF THE SUPREME COURT OF THE STATE OF NORTH DAKOTA, PETITIONER
v.
BONNIE J. ASKEW, RESPONDENT



Per curiam.

Application for Disciplinary Action.

SUSPENSION ORDERED.

[¶1] A hearing panel of the Disciplinary Board recommended attorney Bonnie J. Askew be suspended from the practice of law for sixty days and pay the costs of the disciplinary proceeding in the amount of $3,801.85 for violating N.D.R. Prof. Conduct 1.3 and 1.4. Counsel for the Disciplinary Board urges this Court to accept the hearing panel's recommendation. Askew objects to the hearing panel's findings, contending they are not supported by the evidence. Concluding there is clear and convincing evidence Askew violated N.D.R. Prof. Conduct 1.3 and 1.4, we direct that Askew be suspended from the practice of law for sixty days and that she pay the costs of the disciplinary proceeding in the amount of $3,801.85.

I.

[¶2] In November 2008, counsel for the Disciplinary Board filed a petition for discipline, asserting that Bonnie J. Askew-an attorney admitted and licensed to practice law in the courts of North Dakota since September 25, 1989-had violated N.D.R. Prof. Conduct 1.3, diligence, and 1.4, communication. Askew answered the petition for discipline, denying the allegations it contained. A hearing was held on May 5, 2009. The hearing panel made its findings, conclusions, and recommendation on July 6, 2009.

[¶3] The hearing panel found that in July 2007, Askew was retained by Judy Vavrina to represent her in obtaining a divorce, and Vavrina paid Askew $850. The panel found that Vavrina signed some documents Askew had prepared and that Askew's legal assistant, her daughter Jessica Askew, obtained the signature of Vavrina's husband on documents. The panel found Vavrina assumed the matter had been completed, but in early 2008, she checked with the clerk of court and discovered the divorce had not been completed or filed with the court. The hearing panel found Vavrina contacted Askew and her assistant, but Askew did not complete the representation for which she had been retained during 2008. The hearing panel found Vavrina again discovered in early 2009 that Askew had not completed the divorce. The panel found Askew eventually obtained a judgment of divorce for Vavrina in April 2009.

[¶4] The hearing panel found that during her representation of Vavrina, from July 2007 until April 2009, Askew did not reasonably act to secure a timely resolution of the divorce, but rather relied on her non-lawyer daughter to oversee and pursue the matter. The panel also found Askew did not adequately communicate with her client to assure her understanding of the requirements for obtaining a divorce.

[¶5] The hearing panel found Askew has been admonished on four previous occasions-in November 2005 for violation of N.D.R. Prof. Conduct 3.4(c); in February 2004 for violation of N.D.R. Prof. Conduct 3.4(c) and N.D.R. Lawyer Discipl. 1.2(A)(8); in July 1997 for violation of N.D.R. Prof. Conduct 1.3 and 1.4; and in March 1997 for violation of N.D.R. Prof. Conduct 3.3 and 3.4 and N.D.R. Lawyer Discipl. 1.2(A)(3) and 1.2(A)(8).

[¶6] The hearing panel concluded Askew violated N.D.R. Prof. Conduct 1.3, diligence, and 1.4, communication. The panel considered N.D. Stds. Imposing Lawyer Sanctions 4.43, which states reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client. The hearing panel also considered N.D. Stds. Imposing Lawyer Sanctions 8.3(b), which states reprimand is generally appropriate when a lawyer has received an admonition for the same or similar misconduct and engages in further similar acts of misconduct that cause injury or potential injury to a client. Finally, the hearing panel considered an aggravating factor under N.D. Stds. Imposing Lawyer Sanctions 9.22(a), prior disciplinary offenses. The panel recommended Askew be suspended from the practice of law for sixty days and pay the $3,801.85 cost of the disciplinary proceeding.

[¶7] The matter was submitted to this Court under N.D.R. Lawyer Discipline 3.1(F)(2). Askew objected to the hearing panel's report on July 29, 2009.

II.

[¶8] This Court reviews disciplinary proceedings de novo on the record. Disciplinary Board v. Light, 2009 ND 83, ¶ 6, 765 N.W.2d 536 (citations omitted). Disciplinary counsel must prove each alleged violation by clear and convincing evidence, which means the trier of fact must be reasonably satisfied with the facts the evidence tends to prove and thus be led to a firm belief or conviction. Id. The evidence need not be undisputed to be clear and convincing. Id. We give due weight to the findings, conclusions, and recommendations of the Disciplinary Board, but we do not act as a mere rubber stamp for the Board. Id. To decide which sanction, if any, is appropriate, each disciplinary matter must be considered on its own facts. Id.

[¶9] Because the hearing panel has the opportunity to hear witnesses and observe their demeanor, we accord special deference to the panel's findings on matters of conflicting evidence. Disciplinary Board v. Bullis, 2006 ND 228, ¶ 12, 723 N.W.2d 667. Similarly, we defer to the hearing panel's findings on the credibility of a witness, because the hearing panel has the opportunity to observe the witness's demeanor and hear the witness testify. Disciplinary Board v. Johnson, 2007 ND 203, ¶ 22, 743 N.W.2d 117.

[ΒΆ10] Askew argues the hearing panel's decision is not supported by the evidence. She also argues the hearing panel incorrectly considered the period between the filing of the disciplinary complaint and ...


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