Gordon v. Me. Comm'n on Pub. Def. Serv.

320 A.3d 449

2024 ME 59

Patrick GORDON

v.MAINE COMMISSION ON PUBLIC DEFENSE SERVICES

Docket: Ken-23-393

Supreme Judicial Court of Maine.

Argued: May 7, 2024

Decided: August 8, 2024

Verne E. Paradie, Jr., Esq., Paradie, Rabasco, & Seasonwein, P.A., Lewiston, and Patrick Gordon, pro se (orally), for appellant Patrick Gordon

Aaron M. Frey, Attorney General, and Megan M. Hudson-MacRae, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Maine Commission on Public Defense Services

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, and LAWRENCE, JJ.

MEAD, J.

[¶1] 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,¹ 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.

I. BACKGROUND

[¶2] The Commission "is an independent commission whose purpose is to provide efficient, high-quality representation to indigent criminal defendants, juvenile defendants and children and parents in child protective cases, consistent with federal and state constitutional and statutory obligations." 4 M.R.S. § 1801 (2024). Rule 44 of the Maine Rules of Unified Criminal Procedure requires the court to appoint attorneys listed on rosters maintained by the Commission to serve as counsel for indigent criminal defendants who are at risk of incarceration or certain collateral consequences. M.R.U. Crim. P. 44(a).

[¶3] At the time of the proceedings here, attorneys who wished to be listed on a Commission roster were required to register with the Commission. See 94-649 C.M.R. ch. 2, § 3 (effective Sept. 17, 2015).² To be compensated by the Commission for work on a case, a Commission-rostered assigned attorney must submit a voucher reflecting the work performed for the client in that case. See 94-649 C.M.R. ch. 301, § 6 (effective Feb. 6, 2024).

[¶4] Gordon first registered with the Commission in or about 2010 and reregistered annually with the Commission in the following years.

[¶5] 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.

[¶6] During the Commission’s investigation of Gordon, the following events transpired:

• On February 12, 2021, Justin Andrus, the Commission’s Interim Executive Director, sent Gordon a letter informing him of the investigation and requesting the following documents and information:

• Request 1: Gordon’s client file from his representation of the client;

• Request 2: clarification as to any potential billing discrepancies in relation to the client’s case; • Request 3: clarification as to the discrepancy in Gordon’s payment voucher that represented a bench trial to be a jury trial; and

• Request 4: a list of the dates that Gordon met with the client.

• On February 19, 2021, Gordon informed the Commission of his receipt of the letter and on March 10, 2021, requested further time to respond to the requests.

• On March 15, 2021, Gordon emailed a letter to Andrus responding to the requests. Initially Gordon raised questions about the investigation process and whether Andrus, as interim executive director, had the authority to conduct the investigation.³ Referencing the Commission’s four requests, Gordon responded as follows:

• As to Request 1: he thought that his response to Request 1 needed to be limited due to his concerns about violating attorney-client privilege, he believed that the Commission had the billing statement in the case, and he would provide no further documents;

• As to Request 2: upon reviewing the billing records, he noted one entry for attorney work that appeared to have been billed by an office manager, but that it had only been "entered" by the manager, and not improperly billed;

• As to Request 3: the trial in question had indeed been a bench trial, but Gordon was not aware of the voucher that misrepresented the bench trial as a jury trial; and

• As to Request 4: he was "not sure exactly of all the dates [he] met with [the client]," "rarely entered all of [his] billing time," and provided a non-exhaustive list of times he "believe[d he] met with [the client]," acknowledging that in some instances he did not "know the dates" of the meetings.

Gordon further stated that if the Commission required more information, he would be willing to supply it and requested that the Commission provide more specific details about what was sought by the requests.

• On April 30, 2021, by email and letter, Andrus responded to Gordon’s letter, asserting the appropriateness of the process and his authority to conduct the investigation. The letter further indicated that Andrus believed that Gordon’s provided answers were "partial answers" and clarified that Request 1 sought Gordon’s client file from the case. The letter made three additional requests for information as to billing and files pertaining to Gordon’s representation of the client, with a deadline of May 10, 2021, specifically requesting the following information:

• Request 5: a confirmation that the time entries in the billing vouchers submitted to the Commission were performed by the individuals listed for the entries;

• Request 6: a clarification as to why Gordon had been "unable to provide … copies of correspondence sent to [his client]" when they were requested in conjunction with the PCR case of the client and Gordon’s file retention policy; and

• Request 7: an explanation as to why Gordon had not complied with multiple court orders that he provide copies of client trial files to the PCR attorney.

• On May 10, 2021, Gordon emailed Andrus requesting an extension of time and indicating that on May 7, 2021, he had asked the Maine Board of Overseers of the Bar questions as to what materials he could provide to the Commission without violating attorney-client privilege and was awaiting their reply.

• The same day, Andrus responded that he would not grant Gordon an extension of time and would issue a decision shortly.

• On May 11, 2021, Gordon informed the Commission that he had received a response from the Board of Overseers and that he would be retaining counsel going forward in connection with the investigation.

• On May 13, 2021, Gordon’s counsel contacted Andras, requesting further information as to what the Commission was seeking and indicating that it was his understanding that Gordon had not been in possession of the client file "for some time."

• Andras replied by email on the same day, granting an extension until June 14, 2021, clarifying and renewing the requests for information that were made by letter on April 30, 2021, and noting that the Commission anticipated that Gordon would provide everything he could, with "appropriate, limited redactions."

• On June 14, 2021, Gordon’s counsel emailed a letter to Andrus responding to the Commission’s requests but not providing any of the requested documents. The letter answered the requests as follows:

• As to Requests 1 through 4: Gordon believed he had satisfactorily answered these questions and would not provide further responses unless specific requests were made by the Commission;

• As to Request 5: Gordon did not have access to the requested vouchers and was not the person who had generated the vouchers, but if the Commission provided the vouchers, Gordon would be able to provide additional detail;

• As to Request 6: "Gordon does not know what happened to the file. … There is the possibility the file left the office with [the attorney who] worked on the appeal in this matter. … [The firm] has retained every file since they opened";

• As to Request 7: "Gordon … did not realize [the PCR attorney] wanted the other [client] files. … [W]hen it became clear to [Gordon] that [the PCR attorney] wanted the other files as well, he provided them to [the PCR attorney]."

• At multiple times after June 14, and before June 21, 2021, Andras and Gordon’s counsel spoke concerning the investigation.

• On June 21, 2021, Andrus emailed Gordon’s counsel indicating that the Commission still believed that Gordon’s responses to the requests were lacking and that unless Gordon provided the information immediately, he would be suspended the following day.

• On June 22, 2021, Andrus contacted Gordon’s counsel in one last attempt to get any documents from Gordon before suspending him.

• Later that day, Gordon’s counsel contacted Andrus to inform him that he believed that Gordon was sending along some materials but that he was not sending certain kinds of materials because they were "confidential work product." The Commission never received any of the referenced documents.

[¶7] Andrus never received documents that were responsive to the Commission’s requests, any clear explanation of why...