Attorney Grievance Commission v. Ward

GREENE, J. The Attorney Grievance Commission, through Bar Counsel (“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 Representation) 3 , 1.3 (Diligence) 4 , 1.4(a) and (b) (Communica ⁷ tion) 5 ,1.5(a) (Fees) 6 , 3.3(a)(1) (Candor Toward the Tribunal) 7 , 5.3(c) (Responsibilities Regarding Non Lawyer Assistants) 8 , 8.1(a) and (b) (Bar Admission and Disciplinary 8.1(a) and (b) ⁸ (Bar Admission and Disciplinary Matters) 9 , and 8.4(a), (c), and (d) (Misconduct) 10 . We referred the petition to Judge Wanda Keyes Heard of the Circuit Court for Baltimore City, to conduct a hearing and submit to this Court her proposed findings of fact and conclusions of law. ⁷ A lawyer shall act with reasonable diligence and promptness in representing a client. ⁸ 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 had not violated Rule 8.1(a). She made no specific findings as to MRPC 8.4(a) and (c).

Specifically, 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 complaint, she determined that Respondent 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 ⁹ filed by Daryl Torain, Judge Heard found that Respondent violated MRPC 1.1,1.3,1.4, 3.3(a)(1), and 8.4(d). ⁸ It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; * * sH (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice.... ⁹ 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 regarding Mr. Jenkins’s release on bail; 3) failed to grant petitioner’s request to compel discovery; and 4) erred in finding that Respondent did not violate Rule 8.1(a) in his representation of Mr. Torain.

Respondent also filed exceptions asserting that the hearing judge erred in finding that Rules 1.5, 5.3(c), and 8.4 had been violated with respect to Respondent’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 Law as follows: Complaint of Albert Jenkins Mr. Jenkins, who was incarcerated at the Montgomery County Detention Center, retained Respondent on August 6, 2003, to arrange bail for him 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 notarial discretion. Because Respondent was aware that Ms. Tyner was notarizing a document with the signatory absent, Respondent, as her supervisor, should have taken action to disallow it. Respondent’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. The $20,000 was meant to pay for Respon ¹⁰ dent’s flat fee of $5,000, $15,000 to secure Mr. Jenkins’s release, and $500 for Mr. 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 Mr. 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 Mr. 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. Jenkins a statement, dated September 20, 2003, showing an additional $585.00 due over and above the $5,000 flat fee agreement.

Respondent violated Rule 1.4 when he did not advise Mr. Jenkins of the problems he was having in 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. Complaint of Daryl Lamont Torain On January 7, 2002, Mr. Torain retained Respondent 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. Torain was notified of the initial trial date by the court; however, after Respondent entered his appearance in the case on January 28, 2002, Mr. Torain 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 ¹¹ 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 date, he failed to communicate this to Mr. Torain.

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. Respondent also failed to communicate this arrangement to Mr. Torain. Mr. Torain did not show up on May 6, and, in his absence, Maryland Apartment, Inc., was granted a default judgment of $1,511.03. Mr. Torain only became aware of the judgment when he received a collection notice from Maryland Apartment, Inc. The default judgment against Mr. Torain was entered on May 6, 2002.

Respondent filed a Motion to Vacate Judgment on October 24, 2002, incorrectly stating that Mr. Torain was in court on May 6. The Motion was denied because it was not timely filed. Respondent told Mr. Torain that he had followed up his April 29, 2002, letter to the court for a continuance with a telephone call on May 5, 2002, to the clerk at the District Court and was told that Mr. Torain’s case had been continued. In his complaint to Petitioner, Mr. Torain 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 and to pay for the default judgment. Respondent has paid Mr. Torain $1,000 as of the date of Bar Counsel’s petition. Respondent was notified by letter dated February 12, 2003, of the pending complaints against him and his response was due within ten days. Respondent requested a 15-day extension on March 8, 2003, in order that he could serve as counsel 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 ¹² Petitioner’s initial letter and attached a copy of the Motion to Vacate Judgment in Mr. Torain’s case which incorrectly stated that Mr. Torain was in court 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 May 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 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 authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.” Specifically, the Petition for Disciplinary Action stated that Respondent made misrepresentations to the investigator for Bar Counsel regarding Respondent’s representation of Mr. Torain.

Petitioner has elected to abandon the 8.1(b) claim against Respondent. 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 Appeals has held that inexperience can be considered as a mitigating factor in determining sanctions of an attorney.

Attorney Grievance Commission v. O’Neill, 285 Md. 52, 55-57 , 400 A.2d 415 (1979). Respondent is accused of violating 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, knowingly assist or induce another to do so, or do ¹³ 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.” Considering the totality of the conduct, 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 purpose of MRPC 8.4. Particularly in the case of Mr. Torain, who was entitled to competent, diligent representation by the Respondent.

Respondent failed to provide that representation which resulted in a judgment being entered. Respondent found a substitute attorney when he was unable to appear in court, however, since he did not inform or communicate with his client effectively. His professional conduct and representation was totally ineffective and prejudicial to the administration of justice. Specifically, Respondent’s incompetent representation resulted in the default judgment to be entered against Mr. Torain.

MRPC Rule 8.4(d) states that: “[l]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 default judgment, 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 agreement. This Court assumes that Respondent will refund Mr. Torain all monies and make him whole with regard to the balance of the judgment due and owing. Consequently, Respondent failed to provide competent representation for Mr. Torain in the matter at bar. Respondent, however, did act competently in the representation of Mr. Jenkins.

Although Respondent was inexperienced regarding securing release from jail either through posting bond or use of a bail bondsman, Respondent did secure Mr. Jenkins’[s] release from the Montgomery County Detention Center. Consequently, Respondent did not violate MRPC Rule 1.1 and thereby did not violate MRPC Rule 8.4.[ 11 ] ¹⁴ CONCLUSION For the reasons stated above, this Court finds by clear and convincing evidence that Respondent’s overall conduct during the course of his representation of Mr. Albert Jenkins violated Rule [1.5,] 5.3(a) and 8.4 only.[ 12 ] Additionally, this Court finds by clear and convincing evidence that Respondent violated Rules 1.1, 1.3, 1.4, 3.3(a)(1), and 8.4[ (d) ][ 13 ] in the course of his representation of Mr. Daryl Torain due primarily to lack of experience and competency in maintaining coverage for conflicting trial dates. Respondent’s behavior in not properly following up with the District Court to assure that Mr. Torain’s case would be continued, not providing diligent representation when he did not inform Mr. Torain of the status of the court date, and ¹⁵ not filing the Motion to Vacate Judgment against Mr. Torain timely, are violations of Rules 1.1, 1.3, and 1.4. Respondent’s statement that 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 violated the corresponding sections of Rule 8.4. 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 erroneous. As to the hearing judge’s conclusions of law, such as whether provisions of the MRPC were violated, “our consideration is essentially de novo.” Id. at 152-53 , 849 A.2d at 76.

(Citations omitted.) We, however, “must keep in mind that the findings of the [hearing] judge are prima facie correct and will not be disturbed unless clearly erroneous.” [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 672, 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 she or he “is the best position to assess first hand a witness’s credibility.” ... Therefore, we will not tamper with [the] judge[’s] ... factual findings if they are grounded in clear and convincing evidence. ¹⁶ Att’y Grievance Comm’n v. Harris, 366 Md. 376, 388-89 , 784 A.2d 516, 523 (2001) (citations omitted) (alterations in original) (alterations added). In attorney grievance cases, the judge is required to apply the clear and convincing standard of proof when weighing the evidence.

Id. at 389 , 784 A.2d at 523-24 . The clear and convincing standard of proof lies somewhere between a preponderance of evidence standard, which is generally applied to civil cases, and beyond a reasonable doubt standard, which is applied to most crimes. Id., 784 A.2d at 523 . ANALYSIS PETITIONER’S EXCEPTIONS Motion to Vacate 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 order was entered. On April 4, 2005, thirteen days after the order of default, Respondent filed a Motion to Vacate Order of Default. On April 19, 2005, Judge Heard issued a Memorandum and Order granting Respondent’s motion to vacate the default judgment. Petitioner’s first exception states that the hearing court erred when it granted Respondent’s Motion to Vacate Order of Default.

Petitioner argues that pursuant to 2-613(e) Respondent failed to 1) provide a substantial and sufficient basis for an actual controversy as to the merits of the action, and 2) provide a reasonable explanation for his failure to plead in a a timely manner. In other words, Petitioner maintains that Respondent 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 Md. 371, 376 , 539 A.2d 1127, 1129-30 (1988). Petitioner, however, does not claim how it was prejudiced by Respon ¹⁷ dent’s failure to respond timely to the Petition for Disciplinary Action. Respondent contended in his motion to vacate the order of default 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 conditional. He has now secured counsel who has 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 violations.... 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 charges brought in this matter. The hearing court found that pursuant to Rule 2 — 613(d), Respondent’s Motion to Vacate Order of Default was timely and subsequently granted the motion.

According 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 him. This, in turn, can only be accomplished by holding an evidentiary hearing. sfc H* H* The Respondent admits no liability and vehemently denies these allegations. The bulk of the evidence against [him] appears to be based largely on the testimony of witnesses.

As a result this Court finds that Respondent would be prejudiced and justice would be denied if his means to earn ¹⁸ a living were taken away without an opportunity to confront these witnesses and dispel their allegations at a hearing. (Citations omitted.) 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 565 (2000), 14 and Banegura v. Taylor, 312 Md. 609 , 541 A.2d 969 (1988) to support its argument. Before discussing Banegura , we shall ¹⁹ review several relevant cases that discuss vacating an order of default.

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, [ujnder 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 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). ²⁰ 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). Therefore, a hearing court has “broad general discretion” to determine whether to grant or deny a motion to vacate an order of default. Holly Hall, 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 action is in the interest of justice.”) (citations omitted)). See Scully v. Tauber, 138 Md.App. 423 , 771 A.2d 550 (2001) (“[A] motions judge is accorded considerable discretion in deciding to set aside the grant of a default judgment.”); Bliss v. Wiatrowski, 125 Md.App. 258, 264 , 724 A.2d 1264, 1266-67 (1999) (noting that the trial judge granted a motion to vacate order of default, after the 30-day deadline, when the court received a letter from the defendant which stated that he was interested in participating in the case).

Substantial and Sufficient Basis of an Actual Controversy 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 ²¹ if the stated legal and factual basis was insufficient. We conclude that she did not. We explain, noting that Petitioner relies on our decision in Banegura .

In Banegura , after an entry of the order of default was filed, sixty-seven (67) days later and after a jury trial to determine damages, Banegura filed a motion to strike the default order. Banegura, 312 Md. at 614 , 541 A.2d at 971 . The trial judge denied Banegura’s motion. Id. at 620 , 541 A.2d at 974 .

Later, a motion to modify the request to strike was filed, which also was denied 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 Appeals dismissed the appeal as to the judgment by default. We granted certiorari and held that “[a] trial judge possesses very broad discretion to modify an interlocutory order where that action is in the interest of justice.” Id. at 619 , 541 A.2d at 974 .

Although a motion 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 jJudge could not have granted the motion — rather, we make clear that it was well within his discretion to deny 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 omitted) (alterations added).

We do not disagree with Petitioner that Respondent could have done a better job of complying with the first prong of Rule 2-613(d). 15 We also recognize that Judge Heard could ²² have denied the motion to vacate 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 and factual sufficiencies of his case, we are mindful, however, that “[technicality, while important, should not be elevated to an exalted status.” Holly Hall, 147 Md.App. at 266 , 807 A.2d at 1210 . Respondent’s motion contained the legal basis for his argument. Essentially, Respondent demanded proof that he violated the MRPC, and 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 shall vacate the order.” 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 Eshelman 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 court abused its discretion when the court denied the motion to vacate and that the opposing party did not claim to be prejudiced by the court’s vacating the default order.

Id. We held that the grant or denial of the motion is within the trial court’s discretion, “[b]ut it is a discretion which must be ²³ exercised liberally lest technicality triumph over justice.” Id. at 301 , 189 A.2d at 818 (citation omitted). 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 [pjetition ... 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 Heard’s finding that Respondent’s explanation that he was 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 Respondent’s untimely response. Even if it had made such a contention, Judge Heard was in the best position to assess Respondent’s credibility. Implicit in the hearing judge’s analysis, she determined that there was an actual controversy as to the merits of the action. We cannot say that the hearing judge abused her discretion in vacating the order of default.

Maryland Rule of Professional Conduct 1.1 Petitioner’s second exception was that the hearing court erred in its finding that Respondent did not violate Rule 1.1 when securing the release of Mr. Jenkins upon posting the bond. Rule 1.1 states that “[a] lawyer shall provide competent representation to a client.” 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.

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. ²⁴ 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 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 ... [detention [c]enter. Despite not following Mr. Jen ²⁵ kins’fs] 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 Judge Heard granted Respondent’s motion to vacate the default order, Petitioner filed a motion to compel discovery, which included several requests for explanations, documents, and records that pertained directly to averments contained in Respondent’s motion to vacate. Petitioner requested that Respondent provide an explanation as to why he failed to answer timely, why he could not respond timely pro se, what other conditions may have been associated with his inability to respond, and furnish a copy of the retainer agreement between Respondent and his attorney. Additionally, Petitioner requested all of Respondent’s bank statements from September 1, 2003 to April 1, 2005, his monthly expense payments between August 1, 2003 to April 1, 2005, his 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 discovery request.

The Judge concluded that: The documents requested and the interrogatories which Petitioner requests this Court to compel be 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 seeking to go on a fishing expedition of Respondent’s financial records hoping to find “something” with which to challenge or impeach credibility at trial. These materials, bank accounts and all corresponding records, history of expenses, calendars and information about income are collateral information that ²⁶ does not go to the heart of the misconduct at issue. Similarly, the professional calend[a]r for 2004 and 2005, which would be used to determine Respondent’s work level, is too distant to form any credible link to financial ability and this Court would not allow Petitioner to utilize it to impeach Respondent.

Consequently, this Court hereby DENIES Petitioner’s Motion to Compel 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), which states that “a lawyer ... in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact[,]” as related to Respondent’s representation of Mr. Torain.

The hearing judge held that Petitioner has [not] 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 Respondent. The Court of Appeals has held that inexperience can be considered ... a mitigating factor in determining sanctions of an attorney. Attorney Grievance Commission v. O’Neill, 285 Md. 52, 55-57 , 400 A.2d 415 (1979).

The Judge found that Respondent’s inexperience led to the complaints filed against him. Respondent’s conduct demonstrated an inability to balance his schedule and find coverage and provide competent representation. Although Respondent, prior to engaging in private practice, enrolled in a course entitled “Going Solo,” he was not adequately prepared to take ²⁷ on the responsibilities of a private practitioner at law. The Judge held that, “however, in weighing the testimony and credibility of the witnesses in this matter, this Court finds that none of the errors or misrepresentations appear to be knowing or intentional.” 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 automatically support a finding that Respondent knowingly Or intentionally made