Cry Of Conspiracy
The Maine Supreme Judicial Court found a number of ethics violations and called for further briefing on sanction.
The court finds two violations of Rule 1.1. First, when acting as her attomey, Fenstermaker took a client to remove her car from an impound lot, knowing the lot owners would object to removing the car ftom the lot and knowingly exposing her to the risk of complicating her legal situation, including an arrest and a charge of Violating Conditions of Release. Although he did make an effort to persuade to take a different course, he did not explore any other legal action. Exposing his client to the consequences extra-legal action is not competent representation.
Second, after withdrawing from their cases because of a conflict, Fenstermaker made contact with many of his former ciients. The court accepts Fenstermaker’s testimony that he discussed the potential conflict that caused him to withdraw and that they wanted him to represent them. He did not, however, enter his appeaftnce. Instead, he had each of these clients fill out a pro se motion to dismiss seeking dismissal because they were denied their right to have Fenstermaker as their attomey. This was done without regard to each individual defendant’s circumstances. The motions had no chance of success and could have resulted ia delay in reaching any of these defendants’ cases.
And
The court finds Fenstermaker violated Rule 1.7. Fenstermaker withdrew from representation of his criminal defense clients. He felt that representation of those clients while the State prosecuted its criminal case against him represented a conflict. That conflict arose from the perception he would curry favor with the state. He correctly identified a conflict pursuant to Rule 1.7(a). While that conflict was waivable, he failed to get the waiver in writing when he advised the clients to file the motions to dismiss that he drafted in violation of Rule 1.7(b)
Claims of conspiracy
The court finds Fenstermaker violated Rule 3.1. In a nutshell, Fenstermaker’s assertions of the existence of a criminal car theft ring and a conspiracy to silence him have no basis in fact and are frivolous. Fenstermaker’s motions to dismiss, filed personally onbehalfofa client in one case, and that his clients filed pro se in other cases, all of whom who were appointed attomeys after he withdrew from their cases, argued that they were entitled to have their cases dismissed because he was not their lawyer. These motions were frivolous. The assertions identified in statement of fact 62 were frivolous.
In addition to Rule 3.7 and Rule 4.1 violations, the court found a vilation of Rule 4.4(a)
First, his threat to ADA Staples to make a complaint to federal authorities regarding tampering without evidence had no purpose other than to embarrass or burden her. Second, confrontation with ADA Rucci served no purpose other than to embarrass and burden him. While his client had a good faith concern about the guns and Fenstermaker may not have liked how Rucci dealt with it, the confrontation at the courthouse served no purpose except to belittle Rucci.
Further observations
It is so easy, when criticized, or when things go wrong, to cry that that everyone conspires against you. It is easy to belittle the people who actually work to allow our institutions to function. It is hard, as defense counsel, prosecutors and their staff know, to maintain legal knowledge and apply it to the laws produced by our democratic system, and apply those to defendants, many of whom live in difficult circumstances or others who are challenging to work with. All while living with time pressures imposed by the courts trying to make sure cases reach a hearing as soon as reasonably possible.
By moving to Maine and applying his trial skills, as well as effective zealous advocacy in our Downeast counties, Fenstermaker had an opportunity to use his obvious skills and energy to help those in the community facing charges in the criminal justice system. He chose not to. lnstead, he chose to belittle colleagues and opponents alike, make baseless threats, and follow a self-absorbed path to “destroy” the system while not helping his clients in the process. If he truly believes the State was in conspiracy against him, then that presents one type of obstacle to his ability to practice law. If he does not really believe it, but believes that such conduct is effective advocacy, then that presents a different type of obstacle to his practice of law.
The case is Board of Overseers of the Bar v. Fenstermaker, Bar- 23-4. (Mike Frisch)