Patrick Gordon v. Maine Commission on Public Defense Services

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 59
Docket: Ken-23-393
Argued: May 7, 2024
Decided: August 8, 2024

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

PATRICK GORDON

v.

MAINE COMMISSION ON PUBLIC DEFENSE SERVICES

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

1 During the underlying proceedings and when this appeal was filed, the Maine Commission on
Public Defense Services was called the Maine Commission on Indigent Legal Services, but the
Commission’s title was changed on March 21, 2024. See P.L. 2023, ch. 558, § 2 (emergency, effective
Mar. 21, 2024).
2

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.

There has been an amendment to 94-649 C.M.R. ch. 2 since the underlying proceedings in this
2

appeal, see 94-649 C.M.R. ch. 2 (effective May 14, 2024), but the amendment does not affect this
appeal.
3

[¶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:
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o Request 1: Gordon’s client file from his representation of the client;

o Request 2: clarification as to any potential billing discrepancies in
relation to the client’s case;

o Request 3: clarification as to the discrepancy in Gordon’s payment
voucher that represented a bench trial to be a jury trial; and

o 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:

o 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;

o 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;

3 The Commission’s rules in force at that time referred to the “Executive Director” in the section

that required a Commission rostered attorney to “comply with any Commission investigation of
complaints . . . or other information that, in the view of the Executive Director, concerns the question
of whether the attorney is fit to remain on the roster.” 94-649 C.M.R. ch. 2, § 2(2) (effective
Sept. 17, 2015) (emphasis added).
5

o 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

o 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:

o 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;

o 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

o 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
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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 Andrus, 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.”

 Andrus 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:

o 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;

o 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;

o 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
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who] worked on the appeal in this matter. . . . [The firm] has
retained every file since they opened”;

o 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, Andrus 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 Gordon had been unable

to recover or share the requested files, or a release from Gordon to enable the

Commission to seek the files on its own. Ultimately, Andrus issued a decision

on June 22, 2021, suspending Gordon from the Commission’s rosters, with an
8

effective date of July 1, 2021.4

[¶8] On July 21, 2021, Gordon timely submitted a written statement

requesting that his suspension be lifted, or alternatively taking an intra-agency

appeal of Andrus’s decision under the Commission’s rules. 4 M.R.S.

§ 1804(3)(J) (2024); 94-649 C.M.R. ch. 201, § 4(1)(B) (effective Aug. 21, 2011).

After a hearing, the presiding officer in the intra-agency appeal issued a

recommended decision finding that Gordon had failed to provide any of the

documents requested by the Commission and that Gordon had not

satisfactorily answered the requests. On September 28, 2022, a quorum of the

Commission’s commissioners considered the recommended decision and

adopted it as the final agency action, with minor modifications that did not

change its effect.

[¶9] On October 19, 2022, Gordon filed a Rule 80C petition for judicial

review of the Commission’s decision to the Superior Court, and on

September 19, 2023, the court issued a judgment affirming the Commission’s

decision. See M.R. Civ. P. 80C.

4 Since Gordon’s suspension took effect, Gordon and Andrus have had continued communications,

and Gordon has been repeatedly notified that if he supplies the documents requested by the
Commission in the investigation, or explains why he cannot supply them, he will be eligible to be
reinstated immediately.
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II. DISCUSSION

[¶10] Gordon appeals to us from the judgment of the Superior Court on

his Rule 80C petition. Gordon asserts generally that the Commission’s decision

to suspend him was arbitrary or capricious.5

[¶11] In evaluating the Commission’s decision, “we assess whether the

adjudicator’s decision was arbitrary or capricious based on the record before

it.” AngleZ Behav. Health Servs. v. Dep’t of Health and Hum. Servs., 2020 ME 26,

¶ 23, 226 A.3d 762. The arbitrary-and-capricious standard is high: “we will not

find that an administrative agency has acted arbitrarily or capriciously unless

its action is willful and unreasoning and without consideration of facts or

circumstances.” Id. (quotation marks omitted). “Our review of state agency

decision-making is deferential and limited,” and we do not substitute our

judgment for that of the agency on questions of fact. Friends of Lincoln Lakes v.

Bd. of Envtl. Prot., 2010 ME 18, ¶ 12, 989 A.2d 1128.

5 Gordon phrases his arguments on appeal as being concerned with the decision of the Superior
Court—the first being that the “[c]ourt abused its discretion in upholding the [Commission’s]
decision” because it was “arbitrary” and the second being that the Superior Court erred as a matter
of law in upholding the Commission’s decision, because it was “arbitrary” and “subjective.” “In an
appeal from a Superior Court judgment on a Rule 80C petition, we review the underlying
administrative agency decision directly for abuse of discretion, errors of law, or findings unsupported
by substantial evidence in the record.” Ouellette v. Saco River Corridor Comm’n, 2022 ME 42, ¶ 8,
278 A.3d 1183 (quotation marks omitted). Accordingly, we do not separately review the decision of
the Superior Court but consider the arguments as addressing the Commission’s decision.
10

[¶12] At the evidentiary hearing, the Commission presented evidence

that information concerning issues with Gordon’s performance and billing had

been raised to the Commission and did exist. Evidence was presented that, in

connection with the Commission’s investigation, Andrus had repeatedly made

requests to Gordon for documents concerning these issues and, while Gordon

gave partial answers to some of the questions, he never supplied documents

responsive to the requests. Evidence was presented that supported Andrus’s

authority to commence the investigation and that the investigation was

appropriate. 94-649 C.M.R. ch. 2, § 2(2) (effective Sept. 17, 2015). Evidence

was presented that suggested that Gordon’s failure to turn over the requested

documents was in violation of the Commission’s rules and that his compliance

would not have violated attorney confidence rules. 94-649 C.M.R. ch. 2, § 2(2)

(effective Sept. 17, 2015); M.R. Prof. Conduct 1.6. Evidence was presented that

justified the Commission’s suspension of Gordon for his failure to comply with

the Commission’s rules. 94-649 C.M.R. ch. 2, § 6 (effective Sept. 17, 2015).

[¶13] In the decision eventually adopted by the Commission, the hearing

officer “carefully analyzed the evidence presented and explained his ruling.”

AngleZ, 2020 ME 26, ¶ 26, 226 A.3d 762. The evidence suggests that Gordon

refused to comply with the Commission’s requests despite their being made
11

within the Commission and Andrus’s authority, and that no rule prevented

Gordon from complying. Thus, the Commission’s adoption of the hearing

officer’s recommendation was neither arbitrary nor capricious; rather it was

clearly supported by the evidence. The Commission’s decision reflects no

erroneous findings of fact or abuse of discretion, and the record does not

suggest that the decision was “willful and unreasoning and without

consideration of facts or circumstances.” Id. ¶ 23 (quotation marks omitted).

The entry is:

Judgment affirmed.

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

Kennebec County Superior Court docket number AP-2022-37
FOR CLERK REFERENCE ONLY