A criminal defense attorney who has defended accused terrorists could lose his license to practice law in Maine after being charged with multiple crimes.
Scott Fenstermaker, a former Manhattan attorney who practices in Maine, was charged with trespassing, assault, reckless conduct and attempted theft in November, according to court filings. The case of Fenstermaker is a rare example of a lawyer being prosecuted for believing he was just doing his job.
The criminal complaints prompted the agency, which oversees court-appointed attorneys for Mainer poor, to block Fenstermaker from taking court-assigned cases and withdraw from its case count of more than 100, straining an already ailing legal service.
Fenstermaker learned last week that the prosecutor working on his case is requesting his disbarment by removing his license to practice law in Maine, according to a Jan. 6 letter from the Maine Bar Board of Overseers.
Until recently, Fenstermaker was on a list of Maine attorneys authorized to represent individuals who cannot afford representation. In 2022, the state saw a “worrying” shortage of attorneys for poor Mainers, and now Fenstermaker has been blocked from taking on those cases.
Unlike other states, Maine does not have public defenders. Instead, defense attorneys are overseen by the Maine Commission on Indigent Legal Services, which is voluntary.
In October, the Maine Monitor reported that in 2022 the state had a record number of attorneys available to accept new court-ordered cases through the commission. The lack of lawyers and the growing number of cases brought to court has meant that some defendants have had to wait up to six weeks before being assigned a lawyer.
Fenstermaker cannot 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 found ineligible.
In a letter the commission sent to Fenstermaker Nov. 1 informing him of his suspension, Andrus cited pending criminal charges, information the commission received that allegedly showed that Fenstermaker made statements during a hearing “to the detriment of a client ‘ and that he had failed to hear a client who was later arrested for failing to appear at the hearing as the reason for his delisting from the MCILS list.
Fenstermaker said the November charges stemmed from an incident on September 28 when he was trying to persuade the owner of a towing company to release his customer’s car from the impounded lot when a dispute broke out. The owner called the police and Fenstermaker and his client were summoned to criminal trespassing. But those charges were increased to assault, reckless behavior and attempted theft in a complaint filed Nov. 1 in Washington County District Court.
“This is not just a situation where a defense attorney has been arrested. This is a situation where I was with my client – who was also arrested – in my capacity as an attorney,” said Fenstermaker. “It’s not like I’ve been going out and breaking into houses in my free time.”
According to court documents, since the lawsuit was filed, several motions have been filed in both Washington and Hancock counties seeking to have Fenstermaker’s appearance removed from the record.
While practicing law in New York for 30 years, Fenstermaker was a prosecutor representing inmates at Guantanamo Bay Detention Center.
He represented Ammar al-Baluchi, an alleged courier for Osama bin Laden who was accused of enabling the 9/11 attacks, and Mustafa bin-Ahmed al-Hawsawi, who allegedly financed the 9/11 attacks.
Among other high-profile criminal cases, Fenstermaker has represented Rahim al-Nashiri, a Saudi Arabian alleged mastermind behind the 2000 USS Cole bombing in Yemen.
The criminal case against Fenstermaker is suspended while a new judge is found. Maine District Court Judge David Mitchell resigned in November over a conflict of interest, according to court documents.
“I’m not suggesting that attorneys should be immune from the criminal laws,” said Fenstermaker. “I will say that if you arrest defense attorneys who are in a situation that I was in when I was arrested, there will be problems.”
The Washington and Hancock County Attorneys’ Offices did not respond to a request for comment.