Attorney Grievance v. Ward

Annotate this Case

Download PDF

Attorney Grievance Commission of Maryland v. Ward No. AG 47, September Term, 2004 HEADNOTE: ATTORNEY DISCIPLINE APPRO PRIATE SANC TIONS The attorney in this case violated Rules 1.1, 1.3, 1.4, 5.3(a), and 8.4(d) in the representation of his clients. In one case a default judgment was entered against the client for failure to appear because the attorney did not notify the client in adva nce of the trial date. Und er the circum stances, an in definite suspension, with the right to apply for reinstatement after 60 days, is an appropriate sanction. In the Circu it Court for B altimore C ity Case No. 24-C-04-007398 IN THE COURT OF APPEALS OF MARYLAND No. AG 47 September Term, 2004 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. KENNETH S. WARD _______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. _______________________________________ Opinion by Greene, J. ______________________________________ Filed: August 2, 2006 The Attorney Grievan ce Com mission, thro ugh Ba r Counse l ( Petitioner ) and in conformance with Maryland Rule 16-751 1 , filed a Petition for Disciplinary or Remedial Action against Respondent, Kenneth Stanford Ward, alleging violations of the Maryland Rules of Professional Conduct (MRPC) 1.1 (Competence)2 , 1.2(a), (b), and (c) (Scope of 1 Maryland Rule 16-751, as relevant, provides: (a) Comm encement o f disciplinar y or re media l action . (1) Upon approval of the Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 Rule 1.1 provides: A lawyer shall provide c ompeten t representatio n to a client. Competent representation requires the lega l knowled ge, skill, thoroughness and preparation reasonably necessary for the representation. Representation)3 , 1.3 (Diligence)4 , 1.4(a) and (b) (Communication)5 , 1.5(a) (Fees)6, 3.3 (a)(1) 3 Rule 1.2(a ), (b) and (c) p rovides in re levant part: (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client s decisions concerning the objectives of representation, and, when appropriate, shall consult with the client as to the means by which they are to be pursu ed. . . . A la wyer shall abid e by a client s decision whether settle a matter. In a criminal case, the lawyer shall abide by the client s decision, after consultation with the lawyer, as to a plea to be entered, w hether to w aive jury trial and w hether the client will testif y. (b) A lawyer s representation of a client, including representation by appointm ent, does not constitute an end orsement of the client s political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonab le under the circumstances and the client gives informed consent. 4 Rule 1.3 provides: A lawyer shall act with reasonable diligence and promptness in representing a client. 5 Rule 1.4 provides: (a) A law yer shall: **** (2) keep a client reasonably informed ab out the status of a matter; and (3)promptly comply with reasonable requests for information. (b) A lawyer sh all explain a m atter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 6 Rule 1.5 re lating to attorne y fees provid es, in relevan t part: (contin ued...) 2 (Candor Towar d the Tribu nal) 7 , 5.3(c) (Responsibilities Regarding Non Law yer Assistants)8 , 6 (...continued) (a) A lawyer shall no t . . . charge or collect an unreasonable fee. . . . The factors to be considered in determining the reason ablene ss of a f ee inclu de . . . **** (8) wh ether the fee is fix ed or co ntingen t. 7 Rule 3.3 p rovides, in rele vant part: (a) A lawyer sh all no t kno wingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; 8 Rule 5.3 (c) provides: With respect to a non-lawyer employed or retained by or associated w ith a lawyer: **** (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if: (1) the lawyer orders or, w ith the know ledge of th e specific conduct, ra tifies the con duct involved; or (2) the lawyer is a p artner . . . in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 3 8.1(a) and (b) (Bar Admission and Disciplinary Matters)9 , and 8.4(a), (c), and (d) (Miscon duct) 10 . We referred the petition to Judge Wa nda Keyes Hea rd of the Circuit Court for Baltimore City, to conduct a hearing and submit to this Court her proposed findings of fact an d conc lusions of law . On July 5 and 7, 2005, Judge Heard conducted hearings and, on August 12, 2005, submitted her findings and conclusions. She concluded that Respondent had violated MRPC 1.1, 1.3, 1.4, 1.5, 3.3(a)(1), 5.3(a), 8.4 generally, and 8.4(d) and concluded that Respondent 9 Rule 8.1 p rovides: Bar Admission and Disciplinary Matters. An applicant for admission or reinstatement to the bar, or a lawyer in connec tion with a b ar admissio n application or in connectio n with a dis ciplinary matter, sh all not: (a) knowingly make a false statement or material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or know ingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. 10 Rule 8.4 p rovides, in rele vant part: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the R ules of Pro fessional C onduct, knowin gly assist or induce another to do so, or do so through the acts of another; * * * * (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice. . . . 4 had not violated Rule 8.1(a). She made no specific findings as to MRPC 8.4(a) and (c). Specific ally, as to the complaint filed by Albert Jenkins, Judge Heard determined that Respondent violated MRPC 1.5, 5.3(a) and did not violate Rule 1.1. As to Rule 8.4 and the Jenkins complain t, she determ ined that R esponde nt essentially violated the spirit of the Rule in regards to his inadequate supervision of his secretary in obtaining the client s notarized signature. Judge Heard, however, made no specific findings as to subsections (a), (c) or (d) of Rule 8.4. As to the complaint filed by Daryl Torain, Judge Heard found that Respondent violated MR PC 1.1 , 1.3, 1.4, 3 .3(a)(1) , and 8.4 (d). Bar Counsel filed four exceptions, stating that the hearing judge 1) abused her discretion in granting Respondent s motion to vacate the Order of Default; 2) failed to find a violation of Rule 1.1 reg arding Mr. Jenkins s release on bail; 3) failed to grant petitioner s request to compel discovery; and 4) erred in fin ding that R esponde nt did not vio late Rule 8.1(a) in his representation of Mr. Torain. Respondent also filed exceptions asserting that the hearing jud ge erred in f inding that R ules 1.5, 5.3(c ), and 8.4 ha d been vio lated with respect to Responden t s representation of Mr. Jenkins. In addition, Respondent contended, as to Mr. Torain, that the hearing judge erred in finding that Respondent had violated MRPC 3.3(a)(1 ) and 8.4 . We summarize Judge Heard s Findings of Fact and Conclusions of L aw as follows: Complaint of Albert Jenkins Mr. Jenkins, who was incarcerated at the Montgom ery County Detention Center, retained Respondent on August 6, 2003, to arrange bail for him 5 and his friend, Thomas Shea. Mr. Jenkins executed a retainer agreement and also a Power of Attorney for Respondent to access Mr. Jenkins s Chevy Chase bank account. The Power of Attorney required notarization and, since Respondent was not a notary, he requested that his secretary, Ms. Tyner, notarize the document outside the presence of Mr. Jenkins. Ms. Tyner was not coerced into notarizing the document but did so using her own n otarial d iscretion . Because Respondent was aware that Ms. Tyner was notarizing a d ocumen t with the signatory absent, Responde nt, as her supervisor, should have take n action to d isallow it. Responden t s failure to so do is a violation of Rules 5.3(c) and 8.4. Mr. Jenkins gave Respondent permission, using the Power of Attorney, to withdraw $20,000 from Mr. Jenkins s bank account. T he $20,00 0 was m eant to pay for Respondent s flat fee of $5 ,000, $15,0 00 to secure Mr. Jenkins s release, and $500 for M r. Shea s release. On August 7, 2003, Respondent withdrew $20,000 from Mr. Jenkins s account and obtained a $15,000 cashiers check for Main Street Bail Bonds. When Respondent realized that he would not have the $500 needed for Mr. Shea s release, Respondent, on August 8, 2003, redeposited the $ 15,000 back into M r. Jenkins s account. Respondent then withdrew $2,000 in the form of a cashier s check and paid Main Street Bail Bonds for both Mr. Jenkins s and M r. Shea s release. Mr. Jenkins was released on or about August 10, 2003. He discharged Respondent and requested that Respondent provide a statement for the retainer and refund sums not earned. In response to this request, Respondent sent Mr. Je nkins a statem ent, dated September 20, 2003, showing an additional $585.00 due over and abov e the $5,00 0 flat fee ag reement. Respondent violated Rule 1.4 when he did not advise Mr. Jenkins of the problems he was having in 6 arranging the bonds for his and Mr. Shea s release. Respondent did not violate Rule 1.1 because, even though he did not follow Mr. Jenkins s exact instructions, Respondent did accomplish the goal for which he was retained. Respondent s statement to collect $585.00 in excess of the flat fee agreement he had with Mr. Jenkins is a violation of Rule 1.5. Comp laint of Da ryl Lam ont Tor ain On January 7, 2002, Mr. Torain retained Respon dent to represent him in a District Court action brought by Maryland Apartment, Inc. involving a landlord-tenant matter. The trial was initially scheduled for February 11, 2002, but was postponed to May 6, 2002. Mr. Tor ain was n otified of the initial trial date by the court; however, after Resp ondent en tered his appearance in the case on January 28, 2002, Mr. Tor ain was not notified by the court of the postponement to May 6. Respondent requested a continuance of the case and notified Mr. Torain of his request by letter dated April 29, 2002, but also advised Mr. Torain that he should appear May 6. Even though Respondent did not receive a continuance of the May 6 da te, he failed to commu nicate this to Mr. T orain. Since Respondent had to represent another client, Tyree Woodson, in the Circuit Court for Baltimore City on May 6, 2002, he arranged for a stand-in attorney to appear in District Court for Mr. Torain. Respon dent also fa iled to commu nicate this arrangem ent to Mr. Torain. Mr. Torain did not show up on May 6, and, in his absence, Maryland Apartm ent, Inc., was granted a d efault judgment of $1,511.03. M r. Torain only became aw are of the judgment when he received a collection notice from Maryland Apartment, Inc. The default jud gment ag ainst Mr. Torain was entered on May 6, 2002. Respondent filed a Motion to Vacate Judgme nt on Oc tober 24, 20 02, incorrec tly stating that Mr. Torain was in court on May 6. The Motion was denied because it was not timely filed. 7 Respondent told Mr. T orain that he had followed up his April 29, 2002, letter to the court for a c ontinuanc e with a telephone ca ll on May 5, 2 002, to the c lerk at the District Court and w as told that Mr. Torain s case had been c ontinu ed. In his complaint to Petitioner, Mr. Tor ain charged that he had asked Respondent for copies of pleadings filed in his case but that Respondent did not provide them. In addition, Mr. Torain requested Respondent to refund the retainer fee of $300 an d to pay for the default judgment. Respondent has paid Mr. Torain $1,000 as of the da te of Bar Cou nsel s petition. Respondent was notif ied by letter dated February 12, 2003, of th e pending complain ts against him and h is response was d ue with in ten da ys. Respondent requested a 15-day extension on March 8, 2003, in order that he could serve as co unsel for another client in a jury trial. A provisional extension was granted on March 12, 2003, provided that Respondent provide the case number and information on the duration of the jury trial. Instead of providing the requested information, Respondent answered Petitioner s initial letter and attached a copy of the Motion to Vacate Judgme nt in Mr. Torain s case which incorrectly stated that Mr. Torain was in co urt on May 6. Petitioner further expressed concern to Respondent regarding the discrepancy that Respondent was claiming to believe that Mr. Torain s case had been postponed but had, nevertheless, sent a stand-in attorney for the scheduled trial on M ay 6. Though Respondent was accused of violating MRPC Rule 8.1, in the Petition filed in this case which states: An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a 8 misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary auth ority, except that th is Rule does not require disclosure of info rmation othe rwis e pro tecte d by Rule 1.6. Specific ally, the Petition fo r Disciplinary Action stated that Respondent made misrepresentations to the investigato r for Bar Coun sel regarding Respo ndent s representation of Mr. T orain. Petitione r has elected to abandon the 8.1(b) cla im against R esponde nt. This Court does not find [that Respondent violated Rule 8.1(a) or] that the Petitioner has proven by clear and convincing evidence any false statements of material fact made by Respondent. Petitioner did, however, present several instances of sloppiness and human errors in the documentation provided by the Respondent. The Court of Appea ls has held that inexperience can be considered as a mitigating factor in determining sanc tions of a n atto rney. Attorney Grievan ce Com mission v. O Neill, 285 Md. 52, 55-57 (1979 ). Respondent is accus ed of v iolating Rule 8 .4 of the MRPC, which states; It is professional misconduct for a lawyer to: (a) violate or attempt to violate the rules of professional conduct, knowin gly assist or induce another to do so, or do so through the acts of another; (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is prejudicial to the admin istration of justic e. Consid ering the totality of the condu ct, this Rule was violated. By violating MRPC Rules 1.1, 1.3, 1.4, 3.3(a)(1), Respondent has violated the overall objective and pu rpose of M RPC 8 .4. Particularly in the case of Mr. Torain, who was entitled to compe tent, diligent representation by the Respondent. Respondent failed to provide that representation which resulted in a judgment being ente red. Respo ndent fou nd a substitu te attorney when he was una ble to appe ar in court, however, since he did not inform o r communicate with his client effe ctive ly. His professional conduct and representation 9 was totally ineffective and prejudicial to the administration of justice. Spe cific ally, Re sponde nt s inc ompe te nt representation resulted in the default judgment to be entered against Mr. Torain. MRPC Rule 8.4(d) states that: [I]t is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice. In an effort to repay Mr . Torain for the def ault judgm ent, Respondent has given Mr. Torain a certified check for $1,000.00, which represents over fifty percent of the default judgment and refund of the retainer ag reement. This Court assumes that Resp ondent will refund M r. Torain all monies a nd make him wh ole with regard to the balance of th e jud gme nt du e and owing. C onse quently, Respondent failed to provide competent representation for Mr. Torain in the m atter at bar. Respon dent, however, did act competently in the representation of M r. Jenkins. Although Respondent was inexperienced regarding securing release from jail either through posting bond or use of a bail bondsman, Respondent did secure M r. Jenkins [s] release from the Montgom ery County Detentio n Ce nter. Con sequ ently, Respondent did not violate MRPC Rule 1.1 and thereby did not violate MRPC Rule 8.4. [11] CONCLUSION For the reasons stated above, this Court finds by clear and conv incing evid ence that R esponde nt s overall conduct during the course of his representation of Mr. 11 Judge Heard s discu ssion o f her leg al conc lusions with re spect to Mr. Jenkin s claim as part of her discussion of her legal conclusions with respe ct to Mr. T orain s claim is confusing. Notwithstanding the confusion, as we interpret the last paragraph of her summary of the legal conclusions for her decision, it appears that Judge Heard found that Respondent did not violate Rules 1.1 and 8.4 as to the issue of competency. But, as to the notary issu e, Resp onden t violated Rule 8 .4(d). 10 Albert Jenkin s violate d Rule [1.5,] 5.3(a) and 8.4 o nly. [12] Add ition ally, this Court finds by clear and convincing evidence that Respo ndent viola ted Rules 1.1, 1.3, 1.4, 3.3(a)(1), and 8.4[(d)] [13] in the cours e of his rep resentation of Mr. Daryl Torain due primarily to lack of experience and competency in maintaining coverage for conflicting trial dates. Responden t s behavior in not properly follow ing up w ith the District Court to assure that Mr. Tor ain s case w ould be continued, not providing diligent representation when he did not inform Mr. Torain of the status of the court date, and not filing the Mo tion to Vac ate Judgm ent against M r. Torain time ly, are violations of Rules 1.1, 1.3, and 1.4. Responden t s statement th at his client, Mr. Torain, was present in court on May 6 was a false statement and, therefore, Respondent has violated Rule 3.3(a)(1). By virtue of his violating Rules 1.1, 1.3, 1.4, and 3.3(a)(1), Respondent has vio lated the corresp onding section s of Ru le 8.4. 12 Judge Heard incorrectly stated in her conclusions that Respondent only violated Rules 5.3(a) and 8.4 when representing Mr. Jenkins. In the section exp ressly pertaining to Mr. Jenkins s conclusions of law, the judge found that Responde nt also v iolated R ule 1.5 when he charged Mr. Jenkins more than the agreed upon flat fee. Accordingly, Respondent violated, as to his representation of M r. Jenkins, Rules 1.5, 5.3(a) and 8 .4 (d). Moreover, the hearing judge failed to specify which subsection of Rule 8.4 the Respondent violated. The judge included MRPC 8.4 (a), (c), and (d) in her general discussion of the notary issue. Based upon our review of the judge s conclusions of law and the evidence , we hold th at she determ ined that Responde nt clearly violated Rule 8.4(d), becau se Res ponde nt s con duct w as pre judicial to the adm inistratio n of jus tice. 13 Concerning M r. Torain, Judge Hea rd failed to expressly specify which subsection of Rule 8 .4 was viola ted. The jud ge stated tha t the overall ob jective and p urpose of Rule 8.4 (a), (c), and (d) were violated. She o pined that a lthough R esponde nt violated the overall objective and purpose of MRPC 8.4, Respondent s conduct and representation [w]as tota lly ineffective and prejud icial to the adm inistration of ju stice whic h we inte rpret to be a violatio n of R ule 8.4( d). 11 STANDARD OF REVIEW In Att y Grievance Comm n v. Cherry-Mahoi, 388 Md. 124, 879 A.2d 58 (2005), we maintained: In proceedings involving attorney discipline, this Court has original and complete jurisdiction and conducts an independent review of the record. In our review of the record, the hearing judge s findings of fact generally will be accepted unless they are clearly erroneo us. As to the hearing judge s conclusions of law, such as whether provisions of the MRPC were violated, our con sideratio n is essen tially de novo. Id. at 152- 53, 849 A.2d a t 76. (Ci tations o mitted.) We, ho weve r, must keep in mind that the findings of the [hearing] judge are prima facie correct and will not be d isturbed un less clearly errone ous. [Att y Grievance Comm n v.] Glenn, 341 Md. [448,] 470, 671 A.2d [463,] 474 [(1996))] See Att y Grievance Comm n v. Kemp, 303 Md. 664, 674, 496 A.2d 67 2, 677 (1985); Att y Grievance Comm n v. Collins, 295 Md. 532, 548, 457 A.2d 1134, 1142 (1983) Att y Grievance Comm n v. Kahn, 290 Md. 654, 678, 431 A.2d 1336, 1349 (1981). We note that the hearing judge may elect to pick and choose which evidence to rely upon, . . . for s he or he is th e best position to assess first hand a witne ss s cred ibility. . . . Therefore, we will not tamper with [the j]udge[ s] . . . factual findings if they are groun ded in c lear and convin cing ev idence . Att y Grievan ce Com m n v. H arris, 366 Md. 376 , 388-89, 784 A .2d 516, 523 (2001) (citation s omitte d) (altera tions in o riginal) (a lteration s added ). In attorney grievance cases, the judge is required to apply the clear and convincing standard of pro of wh en we ighing the evid ence. Id. at 389, 784 A.2d at 523-2 4. The clear 12 and convincing standard of proof lies somewhere between a preponderance of evidence standard, which is generally applied to civil cases, and beyond a reasonab le doubt standard, which is applie d to mo st crime s. Id., 784 A.2d at 523. ANAL YSIS PETITIONER S EXCEPTIONS Motion to V acate On February 14 , 2005, Petitioner filed a motion for a default judgment against Respondent for failing to respond to the Petition for Disciplinary Action. On March 22, 2005, a default o rder was e ntered. On April 4, 2005, thirteen days after the order of d efault, Respondent filed a Motion to Vacate Order of Default. On A pril 19, 2005, Judge H eard issued a Memorandum and Ord er granting R esponde nt s motion to vacate the default judgmen t. Petitioner s first exception states that the hearing court erred when it granted Responden t s Motion to Vacate Order of Default. Petitioner argues that pursuant to 2-613(e) Respondent failed to 1) provide a substantial and sufficient b asis for an actual controversy as to the merits of the action, an d 2) provid e a reasona ble explanation for his failure to plead in a a timely manner. In other words, Petitioner maintains th at Respon dent failed to comply with Rule 2-613(e) in that his motion to vacate the default order was insufficient and, as such, a mere conclusory statement that merely tracks the language of the rule is insufficient. Carter v. Harris , 312 M d. 371, 3 76, 539 A.2d 1 127, 11 29-30 (1988 ). 13 Petitioner, however, does not claim how it was prejudiced by Respondent s failure to respond timely to the Petition for Disciplinary Action. Respon dent conte nded in his motion to v acate the ord er of defa ult essentially that: 5. The Respondent failed to respond because he simply did not have funds for counsel. The failure to plead was occasioned was not intentional nor deliberate [sic], but episodic and conditiona l. He has now secured counsel who h as fully answered the Petition. 6. Respondent s legal basis for the defense to the claim clearly centers on the requirements for proof by Bar Counsel of the alleged violatio ns . . . . 7. The Respondent challenges all of the factual allegations set forth in the Petition for Disciplinary Action and demands strict proof. 8. The Respondent s ability to earn a living is at stake in the case. He should be entitled to fully defend himself against the charge s broug ht in this m atter. The hearing court found tha t pursuant to Rule 2-61 3(d), Resp ondent s M otion to Vacate Order of Default was timely and subsequently granted the motion . Accordin g to Judge Heard, Respondent had den[ied] all of the allegations set forth in the Petition and demand[ed] direct proof. This direct proof can only be satisfied by the examination of documents and evaluating the credibility of the witnesses testifying against h im. This, in turn , can only be accomplished by holding an evidentiary hearing. **** The Respon dent adm its no liability and ve hemently denies these allegations. The bulk of the evidence against [him ] appears to be 14 based largely on the testimony of witnesses. As a resu lt this Court finds that Respondent would be prejudiced and justice would be denied if his mea ns to earn a living were taken away without an opportunity to confront these witnesses and dispel their alleg ations a t a hearin g. (Citatio ns omi tted.) Maryland Rule 2-613(d) and (e) provides: (d) Motion by Defendant. The defendant may move to vacate the order of default within 30 days after its entry. The motion shall state the reasons for the failure to plead and the legal and factual basis for the defense to the claim. (e) Disposition of motion. If the court finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action and that it is equitable to excuse the failure to plead, the court shall vacate the order. Petitioner cites several cases in particular, Att y Grievance Comm n v. Middleton, 360 Md. 34, 756 A.2d 56 5 (2000), 14 and Banegura v. Taylor, 312 Md. 609, 541 A.2d 969 (1988) 14 In Middleton, Petitioner filed a Petition for Disciplinary Action alleging attorney misconduct. Middleton, 360 Md. at 36, 756 A.2d at 566. The hearing court granted Petitioner s order of default when Middleton failed to respond. Id. at 37, 756 A.2d at 567. Middleton did n ot respon d un til the day of the hearing in this Court, stating that he was unaware of the defau lt judgm ent due to an ad dress ch ange. This Court held that Middleton was not entit led to rel ief from a defa ult judg ment. Id. at 49, 756 A.2d at 573. We explained that Middleton had no one to blame but himself if the notice of the order of default was not received because he was obliged and failed to change his address with the court. Id. at 46, 756 A.2d at 572. This Court review ed whether M iddleton s defense was meritorious and upon reviewing the evidence held that sufficient evidence existed for the court to find that Middleton s actions resulted in attorney misconduct and incom petenc e. Id. at 48-49, 756 A.2d at 573-74. Middleton is distinguishable from the case at hand primarily because there was no justification for Middleton s failure to respond timely and inform the court of his change of addres s. (contin ued...) 15 to support its argument. Before discussing Banegura, we shall review several relevant cases that discuss v acating an o rder of def ault. The Court of Special Appeals in Holly Hall Publications, Inc. v. County Banking and Trust Co., 147 Md. App. 251, 807 A.2d 1201 (2002) discussed at length whether it was equitable to excuse the failure to plead and whether evidence existed to determine the circumstances of when or whether to vacate an order of default. Id. at 261-67, 807 A.2d at 1207-10 (and cases cited therein). In Holly Hall the intermediate appellate court explained that in Maryland, a default judgment is considered more akin to an admission of liability than to a punitive sanction. Id. at 261-62, 807 A.2d at 1207 (quoting Curry v. Hillcrest Clinic, Inc., 337 Md. 412, 653 A.2d 934 (1995) (and cases cited therein)). The Court of Special Appeals stated that, [u]nder Maryland law, a default judgment is not meant to be a punitive measure that penalizes a party for breaching a regulation. In distinguishing Maryland from other jurisdictions that enter default judgments as a sanction for procedural violations, the Court of Appeals . . . stated that Maryland law . . . does not weigh the balance so heavily against the truth seeking function of adversary litigation. Id. at 262, 807 A.2d at 1207 (alterations added) (alteration in the original) (citations 14 (...continued) In contrast, in the case sub judice, the hearing court found that Resp ondent s misconduct was the result of his inexperience and disorganization. Although we do not condone Respondent s actions, his actions lack the same level and depth of misconduct as evidenced in Middleton. In addition, the evidence against Middleton was overwhelming and essentially undisputed. Thus, there was no actual controversy about the merits of the charges of misconduct filed against Middleton. 16 omitted). Further, the intermediate appellate court held that a close look at cases involving motions to vacate default judgments confirms that Maryland courts ordinarily exercise their discretion in favor of a defaulting party if the party establishes that there is a meritorious defense and shows that its fault was excusable . . . . In the cases brought to the attention of the Court where the Maryland Court of Appeals upheld a trial court s refusal to vacate a default judgment, the defaulting party either lacked a meritorious defense, or the trial court s discretion was confined under the old Maryland default judgment rule. Id. at 263, 807 A.2d at 1208 (citations omitted) (and cases cited therein). In the interest of justice, this Court reviews a hearing court s decision to vacate a default order liberally because the Maryland Rules and case law contain a preference for a determination of claims on their merits; they do not favor imposition of the ultimate sanction absent clear support. Id. at 266, 807 A.2d 1201. See Flynn v. May, 157 Md. App. 389, 403, 852 A.2d 963, 971 (2004) (explaining that the concept that equitableness or fairness comes before technical rules, is a philosophy . . . not to be narrowly or stingily caged regarding vacating a default order). There fore, a hearing cou rt has broa d general d iscretion to d etermine w hether to grant or de ny a motion to vacate an order o f defa ult. Holly H all, 147 Md. App. at 260, 807 A.2d at 1207 (citing Banegura v. Taylor, 312 Md. 609, 619, 541 A.2d 969, 974 (1988) ( A trial judge possesses very broad discretion to modify [or grant or deny] an interlocutory order where that actio n is in the interest o f justice . ) (citatio ns omi tted)). See Scully v. Tauber, 138 Md. App. 423, 771 A.2d 550 (2001) ( [A] motions judge is accorded considerable discretion 17 in deciding to set aside the grant of a defa ult judgme nt. ); Bliss v. Wiatrowski, 125 Md. App. 258, 264, 724 A.2d 1264, 1266-67 (1999) (noting that the trial judge granted a mo tion to vacate order of default, after the 30-day deadline, when the court received a letter from the defen dant w hich sta ted that h e was in terested in partic ipating i n the ca se). Substantial and Sufficient Basis of an A ctual Con troversy as to the Merits Petitioner argues that Respondent failed to provide a detailed statement as to the merits of his defense. Relying on Carter, supra, Petitioner contends that motions that fail to state the legal and factual basis for a defense on the merits, or that state no more than conclusory allegations concerning a defense, are inadequate, because they afford the court no real information upon which to make its finding. We must resolve whether Judge Heard erred when she granted Respondent s motion to vacate the default order even if the stated legal and factual basis was insufficient. We conclude that she did not. W e explain, no ting that Petition er relies on ou r decision in Banegura. In Banegura, after an entry of the order of default was filed, six ty-sev en (6 7) da ys later and after a jury trial to determine damages, Banegu ra filed a mo tion to strike the default order. Banegura, 312 Md. at 614 , 541 A.2d at 971 . The trial judge denied B anegura s motion. Id. at 620, 5 41 A.2 d at 974 . Later, a motion to modify the request to strike was filed, which also was den ied because it failed to provide any factual or legal basis for a defense or state that any defense existed . Id. at 620, 541 A.2d at 974. The Court of Special 18 Appea ls dismissed the appeal as to the judgment by default. We granted certiorari and held that [a] trial judge possesses very broad discretion to mod ify an interlocutory order where that action is in the interest of justice. Id. at 619, 541 A.2d at 974. Altho ugh a mo tion to vacate an order for default must include a legal and factual basis for the defense claimed, the failure to comply with the mandate of this rule may not deprive the trial judge of the right to grant the motion, but it may furnish justification of the denial of it . . . . We do not suggest that [the j]udge could not have granted the motion rather, we make clear that it was w ell within his d iscretion to de ny it even if it had been timely filed. If Banegura cannot succeed in his challenge to the trial judge s exercise of discretion . . . he obviously cannot succeed in his appeal from an action over which the trial judge had very wide discretion. Id. at 620, 541 A.2d at 974-75 (1988) (citations o mitted) (alterations added). We do not disa gree with Petitioner that Respondent could have done a better job of complying with the first prong of R ule 2-613(d). 15 We also recogn ize that Judge Heard could have denied the motion to v acate for failure to comply with Rule 2-613 (d) and (e) because the rules require that the motion shall state the reasons for the failure to plead and the legal and factual basis for the defense to the claim. We agree that Respondent failed to provide detailed legal an d factu al suffi ciencie s of his c ase, we are min dful, ho weve r, that [t]e chnicality, while important, should not be elevated to an exalted status. Holly H all, 147 Md. App. at 266, 807 A.2d at 1210. R esponde nt s motion contained the legal bas is for his argumen t. Essentially, Respondent demanded proof that he violated the MRPC, and 15 In pertinent part, Respondent was required to state . . . the legal and factual basis for the defense of the claim. Md. Rule 2-6 13(d). 19 challenged the validity of Bar Counsel s factual allegations. Moreover, Rule 2-613 (e) requires that if the court finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action and that it is equitable to excuse the failure to plead, the court sh all vaca te the ord er. Given that there was an adequate reason for Respondent s failure to plead, we cannot say that, in the interest of justice, that the hearing court abused its discretion in requiring the case to proceed on the merits rather than pursuant to a default order. Equitable To Excuse Failure To Plead The second prong of the court s analysis in deciding whether to vacate the default order requires that a court determine whether it is equitable to excuse the failure to plead. In Eschelman Motors Corp. v. Scheftel, 231 Md. 300, 301, 189 A.2d 818, 819 (1963), the defendant, an insolvent corporation, asserted in its motion to set aside a default judgment, filed thirteen days after the entry of the default order, that the delay was caused by a failure to financially secure counsel to assist in preparing a defense. The trial judge denied defendant s motion. Id. at 301, 189 A.2d at 819. This Court held that the trial cou rt abused its discretion when the court denied the motion to vacate and that the oppos ing party did not claim to be pr ejudice d by the c ourt s v acating the def ault ord er. Id. We held that the grant or denial of the motion is within the trial court s dis cretion, [b]ut it is a discretion which must be exercised liberally lest technicality triumph over justice. Id. at 301, 189 A.2d at 818 (citation omitted). 20 In the case sub judice, the hearing judge concluded that, in Respondent s motion to vacate he state[d] in his defense that he did not have the funds to hire counsel and as a result, was unable to answer the [p]etition . . . in a timely manner. As soon as he obtained counsel, he took steps to answer the petition. Based upon our review of the evidence, we hold that Judge H eard s find ing that Re sponden t s explanatio n that he w as unable to financially secure counsel was a reasonable explanation and was not clearly erroneous. Petitioner has not claimed that it was in anyway prejudiced by Responden t s untimely response. Even if it ha d made s uch a con tention, Judg e Heard w as in the best position to assess Respondent s cr edib ility. Implicit in the hearing judge s analysis, she determined that there was an actual contro versy as to the merits of the action. We cannot say that the hearing judge abu sed her disc retion in vac ating the ord er of defa ult. Mar yland Rule o f Profe ssiona l Con duct 1 .1 Petitioner s second exception was that the hearing court erred in its finding that Respondent did not viola te Rule 1.1 when securing the release of Mr. Jenkins upon posting the bond. Ru le 1.1 states tha t [a] lawyer sh all provide competent representation to a clien t. Respondent, with authority pursuant to a power of attorney, withdrew $20,000 from Mr. Jenkins s bank account. He was instructed to pay $15,000 for Mr. Jenkins s bail and $500 for Shea s bail (Jenkins s cell mate). Petitioner argues that Respondent withdrew the money and without Mr. Jenkins s consent or authorization paid $2000 to Main Street Bail Bonds as their fee to post bail for which Mr. Jenkins was charged a ten percent (10%) premium. 21 Petitioner contends that Mr. Jenkins could have posted his own bond because he had equity in his home which he could have used to secure the bond. On the issue of paying Main Street Bail Bonds instead of paying cash to post Mr. Jenkins s bond, the hearing judge found that Respondent s actions were reasonable: Though it may be accurate that Respondent lacked prior experience in posting bond or employing a bail bondsman, Respondent s actions to effectuate and arrange the tasks assigned by his client [were] reasonable. When faced with the available alternative means, it was not unreasonable for Respondent to use those means. In fact, this Court finds that the means utilized by Respondent was not only fair and reasonable but within his authority as delineated by the Power of Attorney granted to him by his client, Mr. Jenkins, and the written instructions[16]. . . . Respondent accomplished the goal . . . as the client requested. Clearly, the final action taken by Respondent differed from [Mr. Jenkins s] instructions . . . this 16 Petitioner argues in its exceptions that the h earing judge s finding pertaining to Rule 1.1 was an abuse of discretion and clearly erroneous for a number of reasons including the fact that Mr. Jenkins [s] execution of the Power of Attorney was done without the benef it of a proper notaria l attestation. Pe titioner argue s that the pow er of attorne y was not va lid because Respondent s secretary, Ms. Tyner, a no tary, attested to Mr. Jenkins [s] signature which she w as not p resent to witnes s. The reason this argument fails is because n either Petitione r nor Mr. Je nkins, in his initial complaint to Attorney Grievance Commission, dated October 3, 2003, or at any other time, has maintained that M r. Jenkins s signature was a forgery. To the contrary, Mr. Jenkins acknowledged, in his initial com plaint, that I ha d to sign a P ower of Attorney to Mr. Ward . . . . Obviou sly, Mr. Jenkin s intended th at Respon dent hold power of attorney over some of his affairs. Therefore, Judge Heard was within the confines of her discretion to consider the pow er of atto rney in he r ruling. The hearing judge f ound th at, althou gh Re spond ent did n ot direct Ms. T yner to notarize the power of attorney, Respondent was found to have pro vided inad equate superv ision of his assis tant; ther efore, h e violate d both 5 .3(c) an d 8.4. See infr a. 22 Court finds that Petitioner has failed to proved by clear and convincing evidence that Respondent acted incompetently by his failure to convey to Mr. Jenkins the details surrounding his release from the . . . [d]etention [c]enter. Despite not following Mr. Jenkins [s] precise instructions, Respondent did not violate Rule 1.1 of the MRPC. After our examination of the evidence and the record, we agree with the hearing court that Respondent did not violate Rule 1.1. Motion to Compel Discovery Petitioner s third exception states that the hearing court failed to grant Petitioner s request to compel discovery. Almost two months after Judg e Heard granted Respon dent s motion to vacate the default order, Petitioner filed a motion to compel discovery, which included several requests for explanations, documents, and record s that pertaine d directly to avermen ts contained in Respondent s motion to vacate. Petitioner requested that Respondent provide an explanation as to why he failed to ans wer timely, w hy he could n ot respond timely pro se, what other conditions may have been associated with his inability to respond, and furnish a cop y of th e reta iner agre eme nt be tween R espo ndent an d his attor ney. Add ition ally, Petitioner requested all of Respondent s bank statements from September 1, 2003 to April 1, 2005, his mon thly expense paymen ts between Augus t 1, 2003 to A pril 1, 2005, h is professional calendar for the period January 1, 2002 through March 2005 and a statement of his reported income to the Internal Revenue Service. On July 6, 2006, Judge Heard denied Petitioner s Motion to Compel after reviewing and analyzing each disco very request. T he Judge conclude d that: 23 The docume nts requeste d and the interrogatories which Petitioner requests this Court to compel b e answered are collateral to the substantive issues in this case and are focused on a moot point the Court has ruled and granted the Motion to Vacate. Petitioner is see king to go on a fishing expedition of Responden t s financial rec ords hopin g to find so mething with which to challenge or impeac h credibility at trial. These materials, bank accounts and all corresponding records, history of expenses, calendars and inform ation about income are collateral informatio n that does n ot go to the heart of the misconduct at issue. S imilarly, the professional calend[a]r for 2004 and 2005, which would b e used to determine Respo ndent s work level, is too distant to form any credible link to financial ability and this Court w ould not allo w Petitione r to utilize it to impeach Respon dent. Conseq uently, this C ourt here by DENIES Petitioner s Mo tion to Comp el Discovery. Based upon our review of the record relating to Petitioner s discovery motion and Judge Heard s legal analysis concerning that issue, we conclude that Judge Heard s findings were not clearly erroneous and were supported by clear and convincing evidence. We find no error or abuse of discretion. Maryland Rule of Professional Conduct 8.1(a) Petitioner argues that Judge Heard failed to find a violation of Rule 8.1(a), whic h states that a la wyer. . . in connection with a disciplinary m atter, shall not: (a) k nowing ly make a false statement of material fact[,] as related to Re spondent s representation o f Mr. Torain . The hearing judge held that Petitioner has [not] proven by clear and convincing evidence any false statements of material fact made by 24 Respon dent. Petitioner did, however, present several instances of sloppiness and human errors in the documentation provided by Respondent. The Court of Appeals has held that inexperience can be co nsidered . . . a m itigating factor in determining sanc tions of a n atto rney. Attorney Grievance Comm ission v. O N eill, 285 Md. 52, 55 -57 (1979). The Jud ge found that Respo ndent s ine xperience led to the co mplaints filed against him. Respondent s conduct demonstrated an inability to balance his schedule and find coverage and provide competent representation. Althoug h Respo ndent, prior to eng aging in private practice, enrolled in a course entitled Going Solo, he was not adequately prepared to take on the responsibilities of a private practioner at law. The Judge held that, how ever, in weighing the testimon y and credibility of th e witnesse s in this matter, this Court finds that none o f the err ors or m isrepres entation s appea r to be k nowin g or inte ntional. The hearing judge is in the best position to weigh the evidence and to determine the credibility of the witnesses. In her view, Judge Heard found that Respondent was not diligent and competent in his representation of Mr. Torain. Petitioner s exception is overruled. The hearing court s finding that Respondent was inexperienced and sloppy, does not automati cally support a f inding that R esponde nt know ingly or intention ally made fals e stateme nts. RESPONDENT S EXCEPTIONS Mr. Jenkins Exceeding the Flat Fee Charged According to Respondent, the hearing court erred when it found that Respondent 25 violated Rule 1.5 by attempting to bill and co llect $5,585.00 from M r. Jenkins after the Responden t agreed to represent M r. Jenkins for a flat fee of $5000.00. Respondent argues that Mr. Jenk ins testified tha t he did not believe that he owed an additional $585.00 and did not intend to pay more than the flat fee. Respondent testified at the hearing that he did not try to enfo rce the c ollection of any fe e in exc ess of $ 5,000.0 0. The hearing court found that the Respondent s retaine r agreeme nt stated that h e would represent Mr. Jenkins for $5,000.00, a flat fee. In reviewing the agreement, and as stated earlier, supra, Judge H eard conc luded that in Respon dent s attem pt to collect $585.00, he violated MRPC 1.5, which states that attorney fees must be reasonable. According to the hearing court, Respondent attempted to collect the additional amount as payment for securing Mr. Jenkin [s] release from jail and preparation for the case. This $585.00 exceeded the fixed fee previously agreed upon by Respondent and Mr. Jenkins. The hearing court concluded by the clear and convincing evidence standard that, the $585.00 was an improper additional fee charged to the client and thereby, [Respondent] violat[ed] MRPC Rule 1 .5. The evidence relied upon by the hearing judge included both the agreement signed by both Mr. Jenkins and Respondent and an itemized bill. The Agreement, dated August 6, 2003, clearly stated that [c]lient agrees to pay Attorney . . . $5,000.00 . . . and [t]his fee constitutes a flat fee for representation, regardless of the nature and extent of services contemplated or rendered, or the amount of time actually expended by Attorney. The 26 accounting of charges dated September 10, 2003, by Respondent for Mr. Jenkins s criminal defense outlines various charges for the time expended. At the bottom of the page it states Attor ney s Fe e $5,58 5.00. T he last lin e states, Total B alance Due $ 585.00 . We disagree w ith Respondent that the hearing judge misconstrued the evidence on the record. The agreement clearly stated that a flat fee of $5, 000.00 would be assessed. The bill for services stated that a balance of $5,585.00 was Respondent s fee, and, thus, $585.00 was due. Mr. Jenkins testimony that he did not intend to pay the additional fee is not dispositive. Therefore, we overrule Respondent s exception to the hearing judge s findings of facts and conclusions of law. Ms. Tyner s Conduct 17 In his second exception, Respondent argues that the hearing court erred when it found that Respondent violated Rules 5.3(c) and 8.4. Respondent contends that he did not assist or induce Ms. T yner to notarize Mr. Jenkin s s pow er of atto rney. Respondent asserts that no fraud, deceit, or misrepresentation was involved on his p art, and his conduct was not prejudicial to the adm inistration of ju stice. Acco rding to R esponde nt, although Ms. T yner, s condu ct was i mprop er, the client s directive was carried out as required. The hearing court held that Respondent violated Rule 5.3(c), because he knew Ms. Tyner, as Respondent s legal assistant, was under his supervision, and expected to notarize the power of attorney for M r. Jenkins, who was not actually present at the moment of 17 Although the hearing court reporter spe lled Ms. Tyner s nam e as Ros alyn Tinne r, we adopt the Judge Heard s spelling as Tyner. 27 notarization. The judge found that Respondent failed to take remedial action and stop Ms. Tyner. T herefo re, he vio lated R ule 5.3( c) and R ule 8.4. A review of Respondent s testimony reveals that he prepared a Power of Attorney which inc luded a no tary statement: PETITIONER: Had you called and asked to determine whether or not you could bring a notary? Did you have any experience doing so? RESPOND ENT: I had no experience in doing so. PETITIONER: When you got the power of attorney signed and you brough t it back to your o ffice, wh at did you do w ith it? RESPO NDEN T: I gave it to my assistant Rosalyn T[yner]. **** PETIT IONE R: And did you ask h er to do anythin g with it? RES PON DEN T: I ask ed her to notarize it. Testimony of Ms.Tyner: PETITIONER: Okay. And who asked you to notarize that document? MS. TYNER: Attorney Ward. Cross-examination of Ms. Tyner: RESPONDENT S ATTORNEY: Now have you been trained as a notary only to sign documents in the presence of the individuals who come into your actual physical presence? MS. TYNER: Yes. RESPONDENT S ATTORNEY: Why was this different? MS. TYNER: Well, Mr. Jenkins was incarcerated. Attorney Ward had to take the power of attorney down there[,] to my understanding and requested me to take care of it. [sic] So I thought it was appropriate to do at the time. 28 (Emphasis added.) We agree with the hearing court that M s. Tyner was neither induced nor forced by Respondent to notarize the power of attorney outside the presence of Mr. Jenkins. The inapprop riate condu ct, however, was Respondent s failure to supervise his assistant under the circumstances. Respondent s directive to Ms. Tyne r to take care of it did no t insulate Respondent from responsibility for Ms. T yner s wrongdoing. In the present case, Mr. Jenkins was incarcerated and he sig ned the po wer of a ttorney in the presenc e of Resp ondent. Ms. Tyner was not presen t during the signing. In deferring to Ms. Tyner to take care of it, Respondent improper ly delegated to h is assistant a task he kn ew or sho uld have k nown c ould not have been honestly completed without Mr. Jenk ins s actu al presen ce be fore a notary. Although the evidence is not sufficiently clear and convincing to support a finding that Respondent intentionally misrepresented the facts, the eviden ce is sufficient, pursuant to the same standard, to s upport a fin ding that he violated R ule 5.3 in ord ering his assis tant to obtain the notarization of a document where the signer was no t present. Responden t s second exception is overruled. Mr. T orain Responden t s third exception asserts that the hearing court erred when it found that clear and convincing evidence existed to prove that Respondent made a false statement in a motion to vacate the default judgment prepared and filed on behalf of Mr. Torain. In the motion, Respondent alleged that Mr. Torain was present in the courtroom on the day of trial 29 when in fact Mr. Torain did not attend, and he was not aware of the actual trial date. Respondent claims that, although the motion contained inaccurate information, the evidence was not sufficient to prove by clear and convincing evidence that Respondent knowingly and intentio nally mad e a false stateme nt to the c ourt. The court found that Respondent did not accurately state in his Motion to Vacate Judgment that [Mr. Torain] failed to appear . . . at trial. The hearing cou rt determined that Respondent violated 3.3(a)(1) (knowingly making a false statement to the court). In the hearing judge s co nclusions o f law, beg inning w ith the second paragraph followed by her discussion of Respondent s inaccurate statement, she said, [t]his court does not find that the Petitioner has proven by clear and convincing evidence any false statement of material fact made by Respondent. The hearing judge reasoned that Petitioner had proven several instances of sloppiness and hu man e rror in th e docu menta tion pro vided b y the Res ponde nt. In addition, the judge found that Respondent failed to effectively communicate with or inform his client. This, coupled with Respondent s incompetent representation, led to the entry of a default judgm ent against Mr. Torain. It is clear from the hearing jud ge s analysis that she concluded that no default judgment w ould have been entered against M r. Torain if Respondent had properly communicated with his client. Therefore, Respondent s conduct was in effect ive and prejud icial to the admin istration o f justice . We sustain Re sponden t s exception as to his violation of Rule 3.3(a)(1). Respondent failed to provide competent representation by failing to notify his client in advance of the 30 scheduled trial date. Acc ording to the hearing co urt [Resp ondent] n eeded to f ollow up with the District Court to determine if the motion for continuance had been granted and advise his client accordin gly. This Res ponden t failed to do. In addition, the m otion to vac ate judgment was not filed timely. In his motion to vacate, Respondent misstated the facts. He inaccurately stated that M r. Torain was in court on the d ay of trial. It is undisputed that M r. Torain was not in court because the Respondent failed to notify the client in advance of the trial date. Resp ondent s m isstatements may be attributa ble to his carelessness rather than any knowing or intentionally deceitful statement. In any event, the hearing judge s conclusion of law that Respondent violated 3.3(a)(1) (to knowingly make a false statement of fact or law to a tribunal) is inconsistent with her conclusion of law that Bar Counsel failed to prove by clear and co nvincin g evide nce tha t Respo ndent made any false stateme nt of m aterial fa ct. Moreover, a finding that Respondent violated 3.3(a)(1) requires clear and convincing evidence that he knew the state ments m ade w ere fals e. See Attorney Grievance Comm n v. White, 354 Md. 346, 365, 731 A. 2d 447, 458 (1999) (giving false and misleading testimony measured by the clear and convincing evidence standard is a violation of Rule 3.3 (a) (1) ). The hearing co urt did not find that Respondent knew that he had misstated the facts. Although he was in attentive and incompe tent in his repre sentation of Mr. Tor ain, his misstatement to the court as reflected in his motion to vacate judgment was not necess arily intentional and kno wing on the basis of the record in this case. W e are satisfied that Responden t s conduct supports the hearing court s conclusion that he violated Rule 8.4(d) 31 (Conduct Prejudicial to the Administration of Justice) due to Respondent s overall representation of M r. Torain; however, his co nduct did not violate Ru le 3.3(a)(1). SANCTION Petitioner recommends that the appropriate sanction for Respond ent s miscond uct is an indefinite suspension. Petitioner maintains that Respondent has demonstrated that he is cavalier in his represe ntations to the court, and to the disciplina ry authority charge d with investigating his alleged m isconduc t. Petitioner also maintains th at an indef inite suspension would give Resp ondent, tim e to reflect on his level of c ompeten ce, organiza tional, and practice skills. Conversely, Respondent suggests that the appropriate sanction is a reprimand. It is well settled that our oblig ation in discip linary matters is to protect the public and maintain the p ublic s confiden ce in the le gal system rather than to punish th e atto rney for miscond uct. Att y Grievance Com m n v. Po well, 369 Md. 462, 474, 800 A.2d 782, 789 (2002); Att y Grievance Comm n v. Kolodner, 316 Md. 203, 208, 557 A.2d 1332, 1334, (1989). In addition, our goal when imposing sanctions is to maintain the integrity of the legal profession and to prevent misconduct by other attorneys. Att y Grievance Comm n v. Awuah, 374 Md. 275, 505, 823 A.2d 651, 663 (2003) (quoting Att y Grievance Comm n v. Blum, 373 Md. 275, 30 3, 818 A .2d 219 , 236 (2 003)). The severity of the sanction depends on the circumstances of each case, the intent to w hich the acts were committed, the gravity, nature and effect of the v iolation s, and an y mitigatin g facto rs. Att y Grievance Comm n v. Parker, 389 Md. 142, 156, 884 A.2d 10 4, 112 (20 05); Cherry-Mahoi, supra, 388 Md. at 160, 879 32 A.2d at 80 (citations om itted). As to the appropriate sanction fo r the Responden t s misconduct, there are no decided cases directly on poin t. We have found cases which inv olved viola tions based upon ne glect, carelessness and unintentional miscond uct, but also involved more egregious violations of the MRP C. In those cases, this Co urt has imposed variou s sanctions, ra nging fro m public reprimand to indefinite suspension, depending on several factors, such as previous disciplinary actions, inexperience, or lack of inten t. See Att y Grievance Comm n v. Seiden, 373 Md. 409, 818 A.2d 1108 (20 03); Att y Grievance Comm n v. Jaseb, 364 Md. 464, 773 A.2d 51 6 (2001); Att y Grievance Comm n v. Dworkin, 316 Md. 457, 560 A.2d 15 (1989). See also Att y Grievance Comm n v. Tinsky, 377 Md. 646 , 835 A.2d 542 ,(2003); Att y Grievance Comm n v. Garfield , 369 Md. 85, 79 7 A.2d 757 (2 002); Att y Grievance Comm n v. Mooney, 359 M d. 56, 75 3 A.2d 17 (20 00). Our review of similar cases where the attorney was reprimanded because of incompetence and negligence, we find the Jaseb case, supra, most signific ant. 18 In Jaseb we held that the a pprop riate san ction fo r an attor ney s vio lation of Rule 5 .3 (b) was a reprimand. 18 In another case involving a reprimand, Att y Grievance C omm n v. O Neill, III, 285 Md. 52, 400 A.2d 41 5 (1979), O Neill mad e false statem ents to a tribun al, a State s Attorney and an agent from the parole/probation division, stating that he had paid court costs for a conviction of driving while intoxicated. Id. at 53-54, 57 , 400 A.2d at 416-17, 418. This Court held that a reprimand was an appropriate sanction because: 1) the incident occurred approxim ately eight (8) months after O Neill was admitted to the bar; 2) at the time of the incident he had never practiced law; 3) he was financially embarrassed by the inciden t; 4) the deception was revealed on the same day it occurred; a nd, 5) O N eill wrote a lette r to Bar C ounse l expres sing rem orse fo r his con duct. Id. at 55-5 6, 400 A .2d at 41 7-18. 33 The attorney, Setareh R. Jaseb was found to have violated only one of five charges brought against her, resulting in part from h er failure to ad equately supe rvise her law clerk . Jaseb at 468, 773 A.2d at 518. In the course of a bankruptcy matter, Jaseb prepa red a Chapter 7 Bankruptcy petition on behalf of her client and directed her law clerk to file it in the U.S. Bankruptcy Court. Id. at 477, 523 . The law clerk failed to file the petition. Jaseb contended that she was justified in relying on the clerk s note in the client s file that the petition had been filed. Id. In addition, in an underlying debt collection case, Jaseb made inaccurate representations of fac t and law to the tria l judge a nd to th e oppo sing atto rneys. Id. at 474, 773 A.2d at 521. The hearing judge determined that although Jaseb was negligent and incompetent in her representation of the client, her representations to the trial judge and the attor neys involved were not proven to be intentionally misleading or fraudulent measured by the clear and convincing eviden ce stand ard. Id. at 475, 773 A.2d at 522. In concluding that a reprimand was the appropriate sanction, we considered the attorney s inexperience, lack of prior misconduct complaints, the attorney s inaccurate representations, her negligent superv ision of her rece ntly hired la w clerk , and the lack of prejud ice to the client. Id. In other cases, similar to the present case, we have imposed the sanction of suspension.19 This Court suspended an attorney, Edwin L. Dworkin from the practice of law 19 In Att y Griev ance Co mm n v . Harris, 366 Md. 376, 784 A.2d 516 (2001), the violations were very similar to Respondent s and we imposed a sanction of suspension from the practice of la w for six (6) months. Harris, an attorney since 1960 violated Rules 1.1, 1.3, 1.4(a), and 8.4(d). Id. at 382, 784 A.2d at 519. Harris had three prior sanctions from this Court: in 1987 (six m onth suspension for several violations); 1996 (reprimand for neglect (contin ued...) 34 for sixty (60) days. Dwork in, 316 Md. at 46 2, 560 A .2d at 17. D workin never adv ised [his client] of his opinion as to the lack of liability or the slim chance of recov ery from a third party nor did he advise he r that the statute of limitations on her claim had expired. Id. at 459, 560 A.2 d at 16. Fur ther, Dw orkin misre presented to his client that settlement offers had been made on thre e separ ate occ asions. Id. at 458, 560 A.2d at 15. Dworkin s violations of the MRPC C were based on negligence, misrepresentation, incompetency, conduct that was prejudicial to the administration of justice and a failure to repre sent a cli ent zea lously. Id. at 461, 463, 560 A.2d at 17-18. In arriving at the appropriate sanction, we considered the mitigating factors that Dworkin had practiced since 1 970, adm itted to his misc onduct, expressed remors e and th at the m iscond uct wa s foun d to be a n isolate d occu rrence. Id. We considered as aggravating factors, the seriousness of the misrepresentations[, and that he] perpetuated the misconduct over a tw o year pe riod by inte ntionall y mislead ing his c lient . . . . Id. at 463, 5 60 A.2 d at 18. W e impo sed a 60 day susp ension . Id. There are several other cases where we have imposed an indefin ite suspensio n, with varying periods in which the attorneys we re permitted to apply for reinstatemen t to the bar, because of violations resulting from negligent misconduct, sloppy representation and conduct prejudicial to the ad ministra tion of ju stice. See Att y Grievance Comm n v. Ficker, 349 Md. 19 (...continued) and failure to ade quately com municate with clients); 1999 (reprimand for failure to file suit on behalf of his c lient). Id. at 383, 784 A.2d at 52 0. Harris failed to comm unicate, failed to obtain discovery, did not reschedule his client for a missed conference concerning interrogatories, failed to terminate his representation and failed to appear at trial for the two clients w ho filed the griev ance. Id. at 386- 87, 531 -22. 35 13, 706 A.2 d 1045 (1 995) (imp osing an in definite susp ension, w ith the right to reapply after 120 days, for violation of Rules 1.1, 1.3, 3.4, 5.1, and 8.4(d) and there was a previous reprimand for lack of diligence, lack of trial preparation, failure to appear in court, and for assigning inexperienced attorneys to difficult cases without adequate training or guidance); Att y Grievance Comm n v. Santos, 370 Md. 77, 88, 803 A.2d 505, 511 (2001) (imposing an indefinite suspension, with the right to ap ply for reinstatement after 90 days, f or violating Rules 1.1, 1.3, 1.4, 1.15, 1.16, 8.1 (b) , 8.4(d), and 16-604 resulting from negligent representation and failure to return client s fees; and holding that, although the attorney was neglectfu l, he did not in tentionally defra ud his clients ) ; Att y Grievance C omm n v. Brugh, 353 Md. 475, 479 -480, 727 A.2d 913, 915 (1999) (imposing a co nditional ind efinite suspension with the right to apply for reinstatement afte r 60 d ays for violation of Rules 1.1, 1.3, 1.4, 1.16, and 8.4(d) and accepting as a mitigating factor that the attorney suffered from clinical depression when he violated the MR PC); Att y Grievance Comm n v. Drew, 341 Md. 139, 669 A.2d 1344 (1994) ( holding that an indefinite suspension, with the righ t to apply for reinstatement after one year and certain conditions was an appropriate sanction for violating Rules 1.1, 1.3, 1.4, 1.15, 5.3, a nd 8.4(a) fo r failure to co mmun icate with his clients, act dilige ntly, and a dequa tely super vise his s taff). The recent case of Seiden, supra, 373 Md. at 413, 423, 818 A.2d at 1110, 1116, which involved the imposition of an ind efinite suspe nsion as a sa nction for m isconduc t is instructive. In Seiden, an attorney, was found to have violated Rules 1.1, 1.15(a), 8.4(a) and 36 (d). We imposed a sanction of inde finit e sus pension , with the right to reapply within 3 0 days because the attorney ded ucted his fe e of $4,40 0.00 from a client s escrow funds without obtaining a consen t from the c lient or appro val from th e Orpha n s Court. Seiden, 373 Md. at 413, 423, 818 A.2d at 1110, 1116. In considering the appropriate sanction, we noted several mitigating factors: (a) the attorney s remorse; (b) that an illness prevented Seiden from requesting approval fro m the Orphan s Court to withdraw his fee; and (c) that Seiden was cooperative in the investigation. 373 Md. at 425, 818 A.2d at 1117. Th is Court held that because Seiden s violations occurred as a result of his interactions with a partic ularly difficult client, it was unlikely that Seiden s conduct would be repeated, and he had practiced for many years without any previous disciplinary charges. Id. The examples set forth are a wide range of sanctions for miscond uct similar to Responden t s actions. In Jaseb, supra, we set forth some of the factors that we weigh in an attempt to im pose the ap propriate san ction in discip linary matters: As this Court stated in Maryland State Bar Ass n v. Phoebus, 276 Md. 353, 347 A.2d 556 (1975) [w]here an attorney has been shown to have been negligent, or inatt entiv e to h is clie nt's interests ... in violation of the canons ... the imposition of some disciplinary sanction against him may be warranted; the extent of the discipline to be applied, howe ver, is generally dependent upon the severity of the conduct and the particular facts and circumstances surrou nding i t. Id. at 362, 347 A.2d at 561 (emphasis added ). Jaseb, 364 Md. at 481 , 773 A.2d at 525 -26 (citations omitted). In addition, we stated that 37 some of the factors that this Court has considered in determining an appropriate sanction include : absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or coopera tive attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or me ntal disability or impairm ent; delay in disciplinary proceedin gs; interim rehabilitation; imposition of other penalties or sanc tions; rem orse ; and fina lly, remoteness of prior offenses. [Attorney Grievance Comm n v. Glenn, 341 Md. 488-89, 470, 671 A.2d 463, 483 (1996)] (citations omitted). Id. at 481- 482. In the present c ase, Respo ndent viola ted Rules 1 .5, 5.3(a), and 8 .4 (d) in his representation of Mr. Jenkins. He violated Rules 1.1, 1.3, 1.4, and 8.4 (d) in his representation of Mr. Torain. The hearing cou rt concluded, and w e agree, that Respond ent s misconduct was the re sult of inexp erience, inco mpetenc y, and an inab ility to balance his work schedule .20 Respondent s violations concerning Mr. Torain stemmed mainly from over committing himself and his lack of communication with his client. Despite his shortcomings, he has made an effort to rep ay Mr. Tora in for the de fault judgm ent entered against him as well as refund ing his retaine r fee. In add ition, there was no history of prior disciplinary offenses. Respon dent s misd eeds did n ot rise to the lev el of a misa ppropriation of client funds or inten tional dis honesty. 20 At the time of Respondent s representation of Mr. Jenkins and Mr. Torain, Respon dent had b een a me mber of th e Bar for le ss than two years and afte r working in the State s A ttorney s O ffice f or less th an one year, he se t up a pr ivate pra ctice. 38 We do not condone Respondent s actions. Although the representatio n he agree d to provide would have been considered routine for an experienced practitioner, Respondent was unfamiliar with the ba sic procedu res for obta ining his client s release on bail or experienced in how to maneuver his way through a civil procee ding in the D istrict Court. Ev en if Responden t s knowledge, skill, thoroughness, and preparation was lacking in an area of law, he was still required to be provide comp etent rep resenta tion. See Rule 1.1 and accompanying comments. Responden t s actions resulted in a d efault judg ment ente red against o ne of his client s, Mr. Torain. A dditiona lly, the other complain t filed agains t Respon dent involv ed his failure to adequa tely supervise his employee, Ms. Tyner. Mr. Jenkins was in jail at the time he signed the power of attorney that Respondent prepared for his signature, and Mr. Jenkins signed the docume nt in Resp ondent s p resence. T he Resp ondent retu rned to his office w ith the un-notarized document and directed Ms. Tyner to take care of it. Ms. Tyner notarized the power of attorney without having witnessed Mr. Jenkins signature, and Respondent knew at the time he o btained M r. Jenkins sign ature that the d ocumen t was not notarized. Responden t s actions, under the circumstan ces, reflected negatively on the administration of justice a nd the B ar. A reprimand, as imposed in Jaseb, would be too lenient a sanction because Responden t s violations are neither limited to a single rule violation n or to one clie nt. Moreover, we find both Seiden and Dwork in instructive on the issue of imposing the appropriate sanction in this case. Although the attorney in Seiden committed similar 39 violations, he was found to have violated 8.4(a) (knowingly assisting or inducing another to violate or attempt to violate the MRPC), a more egregious violation because of the elements of knowledge and intent. The attorney in Seiden charged th e client a fee that he was entitled to receive for his services. Respondent, however, in the present case overcharged the client, $585.00, after agreeing to a flat fee of $5,000.00 for his services. In Seiden, although the attorney was an experienced practitioner and should have known better than to secure his fee without prior authorization, we found that the attorney s illness was a mitigating factor that weigh ed in his favor. The attorney in Dwork in, like Respo ndent was negligent, incompetent and dilatory in representing the client. Dw orkin allowed th e statute of limitations to expire before filing his client s claim. In addition, D workin failed to advise his client and intentionally mislead her for two years. Similarly, Dworkin s conduct, like Respondent s, was prejudicial to the administration of justice and the Bar. Although, Dworkin was an experience practitioner and Respondent is inexperienced, that is a distinction without a difference considering the prejud icial imp act on th e client, th e adm inistratio n of jus tice, and the Ba r. Therefore, we impose as a sanction in this case an indefinite suspension with the right to apply for reinstatement after 60 days. The suspension shall com men ce th irty (30) da ys after the filing of this Op inion. IT IS SO ORDERED. RESPONDENT SHALL PAY ALL COSTS AS TAXE D BY THIS COURT, INCLUDING THE COST OF ALL TRANSCRIPTS, PURSU ANT TO 40 MARYLAND RULE 16-761 FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR O F T H E A T T O R N EY G R I E V A N CE COMMISSION OF MARY LAND AGA INST KENNETH STANFORD WARD. 41

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.