Court Appointment Removal Affirmed

The Maine Supreme Judicial Court affirmed a decision to remove an attorney from court-appointed assignments

Patrick Gordon appeals from the judgment of the Superior Court (Kennebec County, Lipez, J.), entered pursuant to M.R. Civ. P. 80C, affirming a final decision of the Maine Commission on Public Defense Services, that suspended him from Commission rosters and thereby rendered him ineligible for assignment to represent indigent criminal defendants. See M.R.U. Crim. P. 44(a)(1)-(2). Upon review of the Commission’s decision, we affirm.

The attorney had been taking appointed cases since 2010

In January of 2021, the Commission received information from an attorney who had been assigned as post-conviction review (PCR) counsel for a client whom Gordon had represented at trial as assigned counsel compensated by the Commission. The information prompted the Commission to begin an investigation into Gordon’s billing and statements related to his representation of the client. Specifically, the information suggested that Gordon had submitted a voucher for representing the client in a jury trial when the trial was in fact a bench trial and that certain time entries in the vouchers were for work done not by Gordon but by a paralegal or another attorney at Gordon’s firm. Additionally, there appeared to be a discrepancy as to whether it had actually been Gordon who had visited his client at all of the times the billing records listed. The Commission believed that the information shared by the PCR counsel raised questions concerning Gordon’s performance representing indigent clients and apparent inaccuracies in Gordon’s billing for work done in the case.

Response to investigation

[Interim Executive Director] Andrus never received documents that were responsive to the Commission’s requests, any clear explanation of why Gordon had been unable to recover or share the requested files, or a release from Gordon to enable the Commission to seek the files on its own. Ultimately, Andrus issued a decision on June 22, 2021, suspending Gordon from the Commission’s rosters, with an effective date of July 1, 2021.4

On July 21, 2021, Gordon timely submitted a written statement requesting that his suspension be lifted, or alternatively taking an intra-agency appeal of Andrus’s decision under the Commission’s rules. 4 M.R.S. § 1804(3)(J) (2024); 94-649 C.M.R. ch. 201, § 4(1)(B) (effective Aug. 21, 2011). After a hearing, the presiding officer in the intra-agency appeal issued a recommended decision finding that Gordon had failed to provide any of the documents requested by the Commission and that Gordon had not satisfactorily answered the requests. On September 28, 2022, a quorum of the Commission’s commissioners considered the recommended decision and adopted it as the final agency action, with minor modifications that did not change its effect.

Court review

the Commission’s adoption of the hearing officer’s recommendation was neither arbitrary nor capricious; rather it was clearly supported by the evidence. The Commission’s decision reflects no erroneous findings of fact or abuse of discretion, and the record does not suggest that the decision was “willful and unreasoning and without consideration of facts or circumstances.”

(Mike Frisch)