Thursday, March 23, 2023

Maine Attorney Suspended On Interim Basis

A Maine attorney has been suspended on an interim basis.

The Portland Press Herald reported on the action

Scott Fenstermaker, who was charged with assault and trespassing last fall, is no longer allowed to take any new clients and was ordered by the courts to surrender all of his existing clients and their files to another attorney.

In an order for Fenstermaker’s suspension Friday, Maine Superior Court Justice Thomas McKeon wrote that Fenstermaker’s misconduct “serves as an imminent threat to clients, the public and to the administration of justice.”

Fenstermaker was served the order on Monday afternoon, according to the Maine Supreme Judicial Court clerk’s office. But when reached shortly afterward, Fenstermaker said numerous times that he wasn’t aware of the orders and that his suspension is “illegal” under state, federal and international law because it prevents him from exposing “illegal conduct” within the Maine state government.

“It’s not surprising. This was a kangaroo court, a political act,” Fenstermaker said.

When asked if he plans to work with the attorney taking over his caseload, Fenstermaker said numerous times “I have no choice.”

Fenstermaker joined the Maine bar in May 2022 and briefly represented clients through the Maine Commission on Indigent Legal Services until he was suspended from taking new cases in November.

He was charged with assault and trespassing at a towing lot in Addison in September – he said he was just trying to help a client retrieve her car. He has since filed a racketeering lawsuit on behalf of that client and two others in U.S. District Court, alleging that several towing companies, state agencies, and local police are involved in a multi-county scheme to illegally seize and sell vehicles.

The district attorney’s office for Hancock and Washington counties then asked Maine court officials to prohibit Fenstermaker from representing any criminal defendants, and later asked the court to prevent him from contacting the DA’s office because he had not yet indicated whether he intends to represent himself or hire an attorney. Despite McKeon’s ruling, Fenstermaker could still choose to represent himself in that case just as any person has a right to do.

The Maine Board of Overseers of the Bar voted last Tuesday to file the petition for Fenstermaker’s suspension after receiving two complaints against him – one alleged he “made unsupported allegations of criminal activity against a sitting judge” and made “misrepresentations” to the court that he had been arrested; another said he was “physically aggressive” toward another attorney.

When Fenstermaker was charged in September, he was issued a criminal summons, but was not taken into custody.

“Attorney Fenstermaker allegedly attempted to remove his client’s vehicle from an impound lot when the lot was closed and without paying the fees,” the petition stated. “When the impound lot owner attempted to block the way, Attorney Fenstermaker allegedly hit the owner with his vehicle.”

An affidavit that describes the investigation into the complaints is still impounded.

In Friday’s ruling, McKeon also ordered Fenstermaker to vacate any physical law office, to immediately cease contact with current and potential clients and to stop using any websites or social media pages where he’s advertising legal services. Fenstermaker and any staff must immediately surrender all physical and digital client files and the technology for maintaining these files, the order states. The order also prohibits charging or attempting to charge any clients while he’s suspended.

In a second order filed Friday, McKeon appointed attorney Barry Mills to take over all of Fenstermaker’s open cases. Mills agreed to represent Fenstermaker’s clients on a pro bono basis “as a service to the bar,” the order stated. After six months, if Fenstermaker’s law offices have any “sufficient assets” the court will consider using those to reimburse Mills for his time. Fenstermaker’s clients are also “free to choose to employ any attorney” if they don’t want Mills, McKeon wrote.

It’s not clear how many cases will be turned over to Mills, which include lawsuits already filed in court and those in which clients have yet to file.

Mills did not respond to messages Monday asking to discuss the new assignments and his plans for representing Mainers in Fenstermaker’s larger lawsuits, including the racketeering case.

As of February, Fenstermaker, who once represented detainees at the Guantanamo Bay military prison, said he was still representing several clients whom he picked up through MCILS pro bono, even after he was removed from the commission’s rosters and barred from accepting any new indigent appointments.

NECN had  information about the attorney's career from the Associated Press

A defense lawyer in Maine who once represented detainees at the Guantanamo Bay military prison has been charged with several criminal counts, and a prosecutor is recommending his disbarment, court records show.

Scott Fenstermaker was charged with trespassing, assault, reckless conduct and attempted theft in November, according to the records.

Fenstermaker told the Bangor Daily News that the November charges were filed after an argument broke out while he was trying to persuade a towing company owner to release his client’s car from an impound lot. He said he was working in his capacity as a lawyer at the time and it’s “not like I was going out and burglarizing homes in my free time.”

The court case against Fenstermaker is currently awaiting a new judge. A letter from the Maine Board of Overseers of the Bar states that the prosecutor working on Fenstermaker’s case is seeking his disbarment.

Fenstermaker worked as a lawyer in New York for three decades and once represented a person who prosecutors said was a courier for Osama bin Laden, the Daily News reported.

He was also previously among a group of lawyers in Maine who were eligible to represent people who cannot afford a lawyer. The agency that oversees that roster of lawyers has barred him from taking on cases, Justin Andrus, the commission’s executive director, told the newspaper.

(Mike Frisch)

Bar Discipline & Process | Permalink


The assertions by the lawyers and judges, above, should shock the conscience of all Americans. When “a sitting judge” faces “allegations of criminal [conduct],” it is absurd (and recklessly irresponsible) for judges and attorneys to contend or pretend that the attorney who asserts such allegations can be suspended or disbarred merely because such “allegations were “unsupported.” It defies common sense and flies in the face of the Constitution and copious law to think (or pretend) that an attorney (a prosecutor or not) could be suspended or disbarred merely because such allegations (according to the contentions judges and lawyers who clearly don’t especially care about the truth or the Constitution in such a matter) are “unsupported.” The question in everyone’s mind should be, not whether the allegations were supported, but whether they were true. That is a matter of common sense and the Constitution.

“Truth may not be the subject of” any type of content-based “sanctions” (“civil or criminal”) “where discussion of public affairs is concerned.” Garrison v. Louisiana, 379 U.S. 64, 74 (1964). Garrison protected a government attorney’s criticism of eight judges, including implying the judges were criminally corrupt. The Constitution “absolutely prohibits” any type of content-based “punishment of truthful criticism” of any public official’s official conduct. Id. at 78.

Every Court that wants to punish any lawyer’s or litigant’s statements exposing or opposing criminal misconduct by a judge must prove that it is precluding “only those false statements” that were asserted, and the reason should be perfectly clear to all: any “speech concerning public affairs” is “the essence of self-government” and “debate on [such] issues should be uninhibited, robust, and wide-open,” and it “may well include vehement, caustic,” and “unpleasantly sharp attacks on government and public officials.” Id. at 74-75. The “public interest in a free flow of information to the people concerning public officials, their servants” is “paramount,” so “anything which” even “might touch on an official’s fitness for office is relevant,” including “dishonesty, malfeasance, or improper motivation.” Id. at 77.

Clearly, “[t]hose who won our independence had confidence” (not in public officials, alone, but) “in the power of free and fearless reasoning and communication of ideas” among the People and public servants “to discover and spread” the “truth.” Wood v. Georgia, 370 U.S. 375, 388 (1962). Wood specifically protected a court officer’s speech and conduct exposing and opposing unconstitutional discrimination by multiple judges.

Posted by: Jack Jordan | Mar 23, 2023 10:38:26 AM

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