“Divergence From Reality”
A justice of the Maine Supreme Judicial Court has suspended an attorney for three years
The violations of Rules 1.1 and 1 .7(b) (competent representation arising from preparing boilerplate motions to be filed pro se and conduct exposing a client to new charges), Rule 1.7(b) (failure to gain written consent to representation after disclosure of a conflict), and Rule 3.7(a) (representing a client when likely to testify as a witness) all implicate Fenstermaker’s duty to his clients. Fenstermaker’s violations of Rule 3.1 (filing frivolous motions), Rule 3.7 (filing pleadings including allegations where he would be a necessary witness), Rule 4.4(a)) (conduct towards other attorneys), Rule 8.2(a) (statements about other judges in reckless disregard of their truth or falsity), and Rule 8.4(d) (disrupting arraignment and belittling attorneys) all implicate Fenstermaker’s duties towards the legal system. Fenstermaker’s violation of Rule 4.4(a) involving conduct towards other attorneys and 8.2(a), belittling attorneys, constituted violations of his duty to the profession.
Considerations
On some level, Fenstermaker clearly cared for his clients and thought that what he was doing was advancing their cause. That is why the court does not opt for disbarment. Absent a major change in his relations with other attorneys and the courts, however, the court does not see how he can practice law.
His ability to practice law would require an explanation for his divergence from reality and immersion into conspiracy theories. His assertions regarding Attorney Paakkonen are a case in point. Although not the most serious of his conduct, it provides one of many examples of how far Fenstermaker’s inflated sense of his own importance pulled him from reality and caused him to repeatedly disregard another attorney’s simple request that Fenstermaker respect his role. Over the course of the litigation, Attorney Paakkonen switched jobs from Assistant Attorney General to Assistant Bar Counsel and was assigned to this case. Convinced that the State’s Attorney General was out to get him, Fenstermaker was sure the Attorney General sent Paakkonen to prosecute the case, He insisted on calling him Assistant Attorney General in pleadings and in court, in spite of the attorney’s requests to the contrary. Fenstermaker was wrong on two fronts. First, there was no evidence Paakkonen’s role as Bar Counsel was the result of anything other than his own interest in changing jobs. Second, there was no evidence that Fenstermaker’s Bar matter had such outsized importance that the Attorney General would become involved in a Board of Bar Overseers matter. This event was just one example of Fenstermaker’s knowing disregard of his obligation to be accurate when casting accusations in violation of his obligations to his profession and the legal system.
Sanction
Scott Fenstermaker is suspended from the practice of law for three years, effective on March 17,2023, which was the day of his interim suspension. Fenstermaker will be required to meet Rule 29(e)’s criteria for reinstatement.
NECN reported on criminal charges brought against Respondent
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)