Office of the Attorney General
TO: Holders of United States Attorneys' Manual Title 1 and/or Title 3
FROM: Janet Reno
RE: Reporting and Handling Allegations of Misconduct by Department Employees
NOTE: 1. This is distributed pursuant to USAM 1-1.510.
2. Distribute to all Holders of Title 1 and Title 3.
3. Insert in front of affected section.
AFFECTS: USAM 1-4.100, 3-2.735(B)
PURPOSE: This bluesheet clarifies the procedure for reporting evidence or allegations of misconduct to the Office of Professional Responsibility and the Office of the Inspector General, and sets forth the procedures to be followed when allegations of professional misconduct by Department attorneys are raised in the course of judicial proceedings.
The following section replaces 1-4.100 in your United States Attorneys' Manual:
1-4.100 ALLEGATIONS OF MISCONDUCT BY DEPARTMENT OF JUSTICE EMPLOYEES
1. Reporting Misconduct Allegations in General
Department employees shall report to their U.S. Attorney or Assistant Attorney General, or other appropriate supervisor, any evidence or non-frivolous allegation of misconduct that may be in violation of any law, rule, regulation, order, or applicable professional standard. The supervisor shall evaluate whether the misconduct at issue is serious, and if so shall report the evidence or non-frivolous allegation to the appropriate Office of Professional Responsibility ("OPR") or to the Office of the Inspector General ("OIG"), and to the Executive Office for U.S. Attorneys ("EOUSA"), as set forth below.
If the supervisor was involved in the alleged violation, the supervisor must bring the evidence or allegation to the attention of a higher-ranking official. An employee who wishes to report directly to OPR or OIG may do so.
When a supervisor is uncertain whether an allegation should be referred, the supervisor may telephone OPR or OIG to determine what action to take.
Reporting an allegation raises no inference that the allegation is well-founded.
A. Office of Professional Responsibility of the Department of Justice
Evidence and non-frivolous allegations of serious misconduct by Department attorneys that relate to the exercise of their authority to investigate, litigate, or provide legal advice shall be reported to the Office of Professional Responsibility of the Department of Justice ("DOJ OPR").
B. Offices of Professional Responsibility of the Federal Bureau of Investigation and the Drug Enforcement Administration
Evidence and non-frivolous allegations of serious misconduct by FBI or DEA employees shall be reported to the Office of Professional Responsibility of the FBI or DEA. Employees of the FBI or DEA who wish to report an allegation outside of their component may report to the Deputy Attorney General.
C. Office of the Inspector General
Evidence and non-frivolous allegations of waste, fraud, abuse or other misconduct by any Department employee, except as set forth in (A) and (B) above, shall be reported to OIG.
D. Executive Office for U.S. Attorneys
Any evidence or non-frivolous allegation involving an employee of a U.S. Attorney's Office shall also be reported to the Executive Office for U.S. Attorneys.
2. Reporting Allegations in the Course of Judicial Proceedings
A. Judicial Statements Concerning Misconduct
Department attorneys shall report to their supervisors any statement by a judge or magistrate indicating a belief that misconduct by a Department employee has occurred, or taking under submission a claim of misconduct. Supervisors shall report to DOJ OPR immediately any evidence or non-frivolous allegation of serious misconduct.
B. Judicial Findings of Misconduct and Requests for Review
Whenever a judge or magistrate makes a finding of misconduct by a Department employee or requests an inquiry by the Department into possible misconduct, the finding or request shall be reported immediately to the employee's supervisor and to D0J OPR, regardless of whether the matter is regarded as frivolous or nonserious.
3. Litigation Concerning Misconduct Allegations
A. Supervisory Review of Court Filings
Before any pleading or other document concerning any non-frivolous allegation of serious misconduct is filed, whether in the district court or on appeal, it must be reviewed by a supervisor who is not implicated by the allegation.
B. Recusal upon Finding of Misconduct
A Department attorney who is found to have engaged in misconduct shall not represent the United States in litigation concerning the misconduct finding, unless approval is obtained from the responsible U.S. Attorney or Assistant Attorney General.
C. Consultation with DOJ OPR
The supervisor may consult with DOJ OPR before filing any pleading relating to a misconduct allegation, and must apprise DOJ OPR of any significant developments after a matter has been reported to DOJ OPR pursuant to this section.
4. Office of Professional Responsibility Procedures
A. Preliminary Review
Upon receiving an allegation within its jurisdiction, DOJ OPR shall conduct an immediate preliminary review DOJ OPR shall open an investigation only if it concludes that further investigation is warranted.
B. Review of Judicial Findings
If a judge makes a finding of misconduct by a Department employee or requests an inquiry by the Department into possible misconduct, DOJ OPR shall conduct an expedited inquiry without awaiting further judicial or appellate proceedings.
C. Notification at Conclusion of Investigation
Upon the completion of an investigation, DOJ OPR shall promptly notify the subject of the allegation, the employee's supervisor, and the complainant of the results.
D. Bad Faith Complaints
If DOJ OPR determines that an allegation made by an attorney was made in bad faith, as a result of gross negligence, or in reckless disregard for the truth, it shall report the complainant's misconduct to the appropriate entity established by the local authorities to handle attorney misconduct.
E. Former Employees
DOJ OPR shall obtain the approval of the Deputy Attorney General before declining to investigate or terminating an investigation on the ground that an employee has left the Department. The decision whether to conduct an investigation under such circumstances will be made on a case-by-case basis.
3-2.735 EMPLOYEE RESPONSIBILITIES AND CONDUCT (cross-reference)
Allegations of misconduct are handled in accordance with U.S.A.M. § 1-4.100.