A criminal defense lawyer who has defended accused terrorists could lose his law license in Maine after he was charged with multiple crimes.
Scott Fenstermaker, a former Manhattan lawyer who practices in Maine, was charged in November with trespassing, assault, reckless conduct and attempted theft, according to court records. Fenstermaker’s case is a rare example of a lawyer facing criminal charges for what he says was just doing his job.
The criminal charges led the agency that oversees court-appointed lawyers for poor Mainers to bar Fenstermaker from taking on court-assigned cases and withdraw from his caseload of more than 100, straining an already struggling indigent legal service.
Fenstermaker learned last week that the prosecutor working on his case is seeking his disbarment, removing his ability to practice law in Maine, according to a letter dated Jan. 6 from the Maine Bar Board of Overseers.
Until recently, Fenstermaker had been on a roster of Maine lawyers eligible to represent people who cannot afford representation. In 2022, the state saw a “disturbing” shortage of lawyers for poor Mainers, and now Fenstermaker has been barred from taking those cases.
Unlike other states, Maine does not have public defenders. Instead, defense lawyers are overseen by the Maine Commission on Indigent Legal Services, which is voluntary.
In October, the Maine Monitor reported that the state saw a record-low number of lawyers available in 2022 to accept new, court-appointed cases through the commission. The lack of lawyers and the growing number of cases being brought to prosecution has caused some defendants to wait as long as six weeks before being assigned an attorney.
Fenstermaker can’t be assigned cases as part of the MCILS, said Justin Andrus, the commission’s executive director, who declined to say why or when Fenstermaker was deemed ineligible.
In a Nov. 1 letter sent to Fenstermaker from the commission notifying him of his suspension, Andrus cited the pending criminal charges, information the commission received that allegedly showed Fenstermaker made statements “to detriment of a client during” a hearing and that he failed to provide notice of hearing to a client who was subsequently arrested for failing to appear at the hearing as the reasons behind his removal from the MCILS list.
Fenstermaker said the November charges were from a Sept. 28 incident when he was trying to convince a towing company owner to release his client’s car from the impound lot when an argument broke out. The owner called police and Fenstermaker and his client were summonsed for criminal trespassing. But those charges were elevated to include assault, reckless conduct and attempted theft in a Nov. 1 complaint filed in the Washington County courthouse in Machias.
“This isn’t just a situation where a defense lawyer got arrested. This is a situation where I was with my client — who also got arrested — in my capacity as a lawyer,” Fenstermaker said. “It’s not like I was going out and burglarizing homes in my free time.”
Several motions have been filed since the complaint in both Washington and Hancock counties seeking to strike Fenstermaker’s appearance from the record, according to court documents.
While a lawyer in New York for 30 years, Fenstermaker was a prosecutor and represented detainees held at the Guantanamo Bay detention center.
He represented Ammar al-Baluchi, an alleged courier for Osama bin Laden who has been accused of helping facilitate the Sept. 11, 2001, attacks, as well as Mustafa bin-Ahmed al-Hawsawi, who allegedly helped fund the Sept. 11 attacks.
Fenstermaker has also represented Rahim al-Nashiri, a Saudi Arabian who is alleged to be the mastermind behind the bombing of the U.S.S. Cole in Yemen in 2000, among other high-profile criminal cases.
The criminal case against Fenstermaker is at a standstill while a new judge is found. Maine District Court Judge David Mitchell recused himself due to a conflict of interest in November, according to court documents.
“I’m not suggesting that lawyers should be immune from having to obey the criminal laws,” Fenstermaker said. “I will say that if you go around arresting defense lawyers, who are in a situation like I was in when I got arrested, it’s going to create problems.”
The Washington and Hancock counties district attorney’s office did not respond to a request for comment.