Jurisdiction and Functions of OPR

Significant Activities in Fiscal Year 2001

During fiscal year 2001, OPR offered certain attorneys who were the subjects of OPR investigations an opportunity to formally respond to OPR's findings and conclusions. Such review proceedings were offered to attorneys who would not have an opportunity to make a response in the context of a disciplinary proceeding, either because they had left the Department or because OPR's critical findings did not result in formal disciplinary action.⁽¹⁾ In such cases, OPR offered the attorney involved an opportunity to review a redacted version of the OPR report, to submit evidence, and to respond orally and in writing to the findings and conclusions. The responses were submitted to a panel composed of two supervisory OPR attorneys who were not involved in investigating the allegations and one senior attorney from another Department component. The panel then made a recommendation to the Counsel as to whether the report's conclusions should be affirmed or modified, or whether further investigation should be conducted. The Counsel's decision was then provided to the Office of the Deputy Attorney General.

The Office of Professional Responsibility continued its participation in educational and training activities both within and outside the Department of Justice to increase awareness among Department attorneys of the ethical obligations imposed by statutes, court decisions, regulations, Department policies, and bar rules. During fiscal year 2001, OPR attorneys made presentations at the Professional Responsibility Officers' Conference and to the Appellate Chiefs' Seminar. In addition, OPR attorneys participated in seminars on grand jury practice and on ethics for government attorneys, and assisted with the training of inspectors at the Drug Enforcement Administration Office of Professional Responsibility (DEA/OPR).

During the fiscal year, OPR also participated in non-investigative, policy, and project-oriented activities of the Department. For example, OPR assisted the Executive Office for U.S. Attorneys by providing comments on proposed revisions to the Department press guidelines.

OPR continued to make significant internal information technology improvements during fiscal year 2001 to make information on prior investigations more readily accessible to OPR attorneys and other staff. These included addition of the capability to conduct electronic word searches on abstracts of prior OPR reports; access through OPR's secure computer system to information on the Department's intranet; and creation and distribution of a single electronic document providing current links to important databases and reports maintained on OPR's secure server.

Fiscal year 2001 marked a change in OPR's jurisdiction. Previous Annual Reports have detailed OPR's responsibility for the oversight of the Offices of Professional Responsibility in the Federal Bureau of Investigation (FBI/OPR) and the Drug Enforcement Administration (DEA/OPR). In July 2001, the Attorney General placed those internal inspection units under the oversight of the Office of the Inspector General (OIG). 66 FR 37902. Accordingly, OPR's Annual Report no longer contains information about the operation of those offices. OPR continues, however, to have jurisdiction over FBI and DEA agents when allegations of misconduct relate to the exercise of a Department of Justice attorney's authority to investigate, litigate, or provide legal advice. In addition, OPR retains its authority to render prosecutive decisions in investigations conducted by FBI/OPR and DEA/OPR. OPR also continues to share with the OIG the responsibility for reviewing and investigating (as appropriate) whistleblower complaints by employees.

Intake and Initial Evaluation of Complaints

OPR Investigations in Fiscal Year 2001

Characteristics of Investigations Opened in Fiscal Year 2001: OPR investigations opened in fiscal year 2001 were based on complaints from a variety of sources, as reflected in Table 1.

TABLE 1

TABLE 2

Investigations Closed in Fiscal Year 2001: OPR closed a total of eighty-three investigations in fiscal year 2001, two of which involved non-attorney subjects (of which one involved an allegation of whistleblower retaliation made by an FBI agent). Of the eighty-three investigations that were closed during the fiscal year, OPR found professional misconduct in twenty-one, or approximately 25%, of the matters. Ten of those matters involved at least one finding of intentional professional misconduct by a Department attorney.⁽⁴⁾ In the remaining eleven matters, the findings of professional misconduct were based upon OPR's conclusion that the attorney had recklessly disregarded an applicable obligation or standard.⁽⁵⁾ The number of investigations resulting in findings of professional misconduct on the part of Department attorneys, and the proportion of OPR's closed investigations in which such findings were made, were significantly higher than in fiscal year 2000, in which OPR found professional misconduct in twelve matters (15%).

Disciplinary action was initiated against nine of the twenty attorneys found by OPR to have engaged in professional misconduct. One of the attorneys received a proposed removal letter (which remained pending at the close of FY 2001); three were suspended without pay for a period of time (one resigned before the suspension was imposed); four received written reprimands; and one received an oral reprimand. OPR's recommendations for disciplinary action remained pending at the close of FY 2001 in four cases involving attorneys; the recommendations in those cases were suspensions ranging from one to thirty days. In seven cases in which OPR found professional misconduct, the subject attorney resigned from the Department prior to the initiation of any disciplinary proceedings. The remaining matter involved professional misconduct by a non-attorney; disciplinary action was initiated and that person received a censure.

OPR also closed eleven matters, or approximately 13%, involving at least one finding that an attorney had exercised poor judgment.⁽⁶⁾ Sixteen matters, or approximately 19%, involved at least one finding that an attorney had made a mistake.⁽⁷⁾

Examples of Investigations Closed in Fiscal Year 2001⁽⁸⁾

1. Destruction of Evidence. OPR received an allegation that a DOJ attorney was asked by a district judge, in an ex parte telephone call, to destroy all copies in the possession of DOJ of a letter that had recently been sent to the judge, with a copy sent to the government. The letter accused the judge of personal misconduct and demanded that the judge recuse himself from a criminal case.

OPR conducted an investigation and found that the judge called the DOJ attorney to request the destruction of the copies of the letter possessed by DOJ, and that the DOJ attorney urged her supervisor to destroy all copies of the letter. OPR found that the supervisor destroyed two copies that were in her possession and contacted DOJ attorneys at Main Justice who had copies of the letter to relay the judge's request that those copies be destroyed as well.

OPR found that the supervisor who destroyed two copies and relayed the request to destroy other copies, and the attorney who received the call from the judge, exercised poor judgment. OPR found further that the DOJ attorney who received the telephone call from the judge engaged in intentional professional misconduct by providing false information to OPR investigators.

The DOJ attorney who committed intentional misconduct left the Department before OPR completed its investigation. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

2. Misrepresentation/Misleading the Court; Improper Introduction of Evidence; Improper Performance of Duties. A district court criticized the government in a civil tax case, finding that it introduced incorrect testimony about an aspect of the tax regulations, failed to respond to the court's instruction to provide a reference to a particular point in the tax regulations, cited irrelevant statutes, and submitted exhibits improperly after the record was closed.

OPR conducted an investigation and found that an IRS agent testified inaccurately about a little-known regulation, but that the DOJ attorney handling the case later corrected the record on that point. With respect to the alleged failure to provide a reference to a tax regulation, OPR found that the government responded to the court's request in a pleading filed two weeks after the request was made, and well before the court's order was issued criticizing the government's conduct. Finally, OPR found that the record did not support the court's criticisms with respect to the citation of irrelevant statutes and the improper submission of exhibits. Accordingly, OPR found that the DOJ attorney who handled the case did not commit professional misconduct or exercise poor judgment.

3. Improper Examination of a Witness. A court of appeals ruled that a DOJ attorney violated the defendant's right to a fair trial by asking a question to a representative of the defendant's employer that suggested that the defendant, who had not testified, had a criminal record and lied about it to her employer. The court concluded that the prosecutor's purpose was to impugn the defendant's credibility and to suggest to the jury that he had some past criminal involvement, even though the court had ordered the government to avoid such references, the DOJ attorney did not know whether the conviction was for a felony, and the defendant exercised his constitutional right not to testify. The court of appeals determined that the DOJ attorney's question was intended to focus the jury's attention on prior criminal charges by implying that the defendant had a past conviction.

OPR conducted an investigation and found that the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligation to comply with the court's pretrial ruling not to raise the prior criminal history. The DOJ attorney should have known that her question raised the defendant's criminal history and thereby violated the court's order.

The DOJ attorney received a reprimand. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

4. Improper Statements to the Media. A defense attorney alleged that DOJ attorneys committed misconduct by making statements to the press that were intended to prejudice the proceedings. After the conviction but before sentencing in a significant criminal case, DOJ attorneys gave a number of interviews to the media. The interviews were authorized by the DOJ's Office of Public Affairs and the attorneys' supervisors. At sentencing, the defendant received a long sentence and was ordered to pay a record amount in restitution.

OPR conducted an investigation and found that the DOJ attorneys provided the press information based on the evidence and argument that occurred in open court, either at trial or during post-trial hearings. OPR found no basis to conclude that the DOJ attorneys acted intentionally or in reckless disregard of their obligation not to influence the resolution of post-trial motions or the sentencing. OPR recommended, however, that a better practice would be to avoid describing a defendant's conduct in pejorative terms in media statements.

5. Improper Closing Argument. A court of appeals ruled that a DOJ attorney improperly bolstered the credibility of government witnesses by stating in rebuttal closing argument that, to believe the defense's theory of the case, the jury would have to believe that members of several law enforcement agencies were lying and had conspired to suborn perjury by various government witnesses.

OPR conducted an investigation and found that the remarks in question constituted an excusable mistake under the circumstances, noting that there was no recess between the defense argument and the rebuttal argument that it provoked, and that defense counsel did not object to the remarks and the district court did not criticize them.

6. Unauthorized Disclosure of Information. OPR received an allegation that a DOJ attorney ("Attorney A") disclosed to another DOJ attorney ("Attorney B") that a third DOJ attorney in the same office ("Attorney C") had several years earlier handled a criminal investigation that included Attorney B within its scope.

OPR conducted an investigation and found that Attorney A disclosed this information to Attorney B with the purpose of undermining the authority of Attorney C, who was being promoted to a supervisory position in the office. OPR found that Attorney A disclosed this sensitive investigative information because of his own personal resentment of Attorney C, and that the disclosure damaged the interests of the United States. Accordingly, OPR found that the disclosure constituted intentional professional misconduct.

Attorney A resigned from DOJ before OPR completed its investigation. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

7. Improper Contact with Represented Party. A district court found that a DOJ attorney violated a state bar rule prohibiting contacts with a represented party when the DOJ attorney interviewed a corporation's employee outside the presence of corporate counsel immediately before the employee testified before the grand jury about corporate misdeeds.

OPR conducted an investigation and found that the DOJ attorney did not commit professional misconduct, but instead acted appropriately under the circumstances. The employee indicated that she did not want to be represented by corporate counsel because she feared he would pressure her to lie. The DOJ attorney asked whether the employee would like to retain separate counsel, but she declined and said she wanted to speak to the DOJ attorney with no counsel present. The court of appeals reversed the trial court's finding that the DOJ attorney violated the rule against contact with a represented party. Based on the results of its investigation, OPR concluded that the DOJ attorney did not violate the state bar rule or the then-applicable Department regulation governing contacts with represented parties, and thus did not commit professional misconduct or exercise poor judgement.

8. FBI Whistleblower Claim. A former FBI employee alleged that his supervisors retaliated against him for making protected disclosures about a claim for certain expenses by transferring him to another squad and by coercing him into early retirement.

OPR conducted an investigation pursuant to 28 CFR Part 27, and found that the employee had made protected disclosures concerning a claim for expenses, and that the employee's protected disclosure may have been a contributing factor in the decision to transfer him to a different squad. Nonetheless, OPR found clear and convincing evidence that the employee would have been transferred even in the absence of the protected disclosure because of his performance, the status of his cases, and the needs of the office. OPR found that the evidence did not support the employee's claim that he was coerced into early retirement. Instead, OPR found that the employee retired because his caseload was reassigned upon his transfer and because of a reprimand he received. OPR found that the reassignment of the employee's cases was in accordance with office policy and was not in retaliation for protected disclosures. Likewise, OPR found that the reprimand was an appropriate response to the employee's performance and was not in retaliation for protected disclosures.

9. Brady Violation. A defendant in a multi-defendant case made a FOIA request for documents pertaining to the case, but the agency possessing the responsive documents withheld them pursuant to FOIA's exemption for documents whose disclosure is reasonably expected to interfere with pending enforcement proceedings. The cases went to trial, but impeachment of a government witness led to mid-trial plea offers being accepted by several defendants pursuant to an agreement requiring dismissal of the case against the FOIA requestor. In due course, the agency produced the documents to the FOIA requestor/defendant who moved for attorneys' fees, claiming that the documents should have been disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and that the prosecution was initiated in bad faith. The court granted the motion, ruling that the prosecutor, who had received the records from the agency prior to trial, violated Brady by not producing them in advance of trial. The court also criticized the prosecutor for not providing the impeaching evidence that emerged at trial.

OPR conducted an investigation and found that the prosecutor did not violate Brady in either instance. The documents disclosed pursuant to FOIA related to a topic that, prior to trial, the district court had ruled was not present in the case, thus providing the prosecutors a good faith basis to conclude that the documents were immaterial and not subject to Brady. The impeaching evidence, while material, was ultimately not withheld from the defense because the prosecutor adduced it during direct examination of the government's witness. OPR found, however, that the prosecutor exercised poor judgment in failing to produce the impeaching evidence three days prior to trial, as she had agreed to do earlier in the proceedings.

10. Improper Closing Argument. A court of appeals criticized a DOJ attorney for making improper comments in his closing and rebuttal arguments concerning the defendant's illegal alien status. The court found that the improper references were prejudicial, and affirmed the order of the district court granting the defendant a new trial.

OPR conducted an investigation and found that the DOJ attorney's closing argument did not violate a clear and unambiguous standard, and was not designed to play upon a jury's fear of outsiders. Evidence of the defendant's illegal alien status had come into the record without objection, and the DOJ attorney used that evidence as a starting point for an attack on the defendant's credibility. Under these circumstances, OPR found that the DOJ attorney did not engage in professional misconduct or exercise poor judgment.

11. Speedy Trial Act Violation. A district court dismissed a prosecution for violation of the Speedy Trial Act where the violation was for almost one year beyond the statutory period. The court concluded that the violation did not reflect a simple mistake, and that the government had ample chances to move the case along.

OPR conducted an investigation and determined that the DOJ attorney failed to monitor the procedural aspects of the case. After arraignment, the DOJ attorney pursued plea negotiations and anticipated that the defense would file pre-trial motions that would stop the running of the Speedy Trial Act. The DOJ attorney failed, however, to ascertain whether such motions had been filed, and failed to file consent orders to memorialize the time extensions needed to work out the plea. Based on the results of its investigation, OPR concluded that the DOJ attorney engaged in professional misconduct by acting in reckless disregard of her obligation to handle the prosecution competently and diligently.

The DOJ attorney resigned from the Department before OPR completed its investigation. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

12. Failure to Correct False Testimony. A court of appeals reversed a conviction because the DOJ attorney used allegedly perjured testimony. The court reasoned that, for the jury to convict the defendant, it had to credit the testimony of a prosecution witness who, at an earlier trial of the defendant, had not recognized an accountant who supposedly had prepared the defendant's false tax returns. At the subsequent trial that ended in the defendant's conviction, the witness testified that he had recognized the accountant. According to the court, the DOJ attorney allowed the lie to go unchecked until his rebuttal closing, at which time he minimized its importance, which the court determined was fundamentally unfair.

OPR conducted an investigation and found that the DOJ attorney acted appropriately under the circumstances. OPR found that the false testimony came not in direct examination, but in defense cross-examination. The DOJ attorney reasonably believed that the false testimony had been corrected during the defense cross-examination, both by the defense attorney and ultimately by the court, who opined that the jury was clear beyond any doubt that the witness had lied. Because the true facts were known to and used by defense counsel, and because the DOJ attorney had no opportunity to correct the false testimony before the court and defense counsel had done so, OPR concluded that the DOJ attorney did not engage in professional misconduct or exhibit poor judgment.

13. Unauthorized Disclosure of Information. OPR investigated an allegation that an unidentified DOJ attorney revealed the details of sensitive, internal DOJ e-mail messages to a private attorney who was representing plaintiffs in a lawsuit whose subject matter was related to the information discussed in those messages. Information from the messages was quoted in a subpoena issued to DOJ by the private attorney, seeking further disclosure about the subject matter in question.

OPR conducted an investigation and found that a DOJ attorney with access to the messages in question intentionally disclosed the contents of the messages to the private attorney in order to give the private attorney an advantage in the private litigation. OPR found that the DOJ attorney had a long-standing relationship with the private attorney and was sympathetic to the position of the plaintiffs in the private suit. OPR found that the DOJ attorney committed intentional professional misconduct by disclosing confidential DOJ information without authorization for the benefit of private persons, in violation of Executive Branch standards and an applicable bar rule concerning disclosure of client confidences.

The DOJ attorney received a written reprimand. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

14. Misrepresentations to the Court and Opposing Counsel. A district court issued an order to show cause why a case should not be dismissed for failure to prosecute. In a responsive status report, a DOJ attorney represented to the court and opposing counsel that the attorney had sent a proposed settlement agreement to defense counsel two months earlier. After defense counsel contacted the DOJ attorney's supervisor and complained that the DOJ attorney's response was false, the supervisor discovered that no settlement had been approved and no settlement proposal had been sent.

OPR conducted an investigation and found that the DOJ attorney misrepresented material facts in the status report he filed with the court in response to the order to show cause, and submitted fabricated evidence to support his false statements. OPR found that the DOJ attorney also made a material misrepresentation of fact to the court during an earlier telephone status conference, in which the attorney represented that a settlement of the government's claim had been approved within DOJ. In fact, the DOJ attorney had not submitted the proposed settlement to the DOJ official with settlement authority. OPR found further that the DOJ attorney intentionally deceived his supervisor, and intentionally changed the save dates on documents on his computer in an attempt to convince his supervisor that he had created the documents months earlier, rather than after the court's order to show cause issued. Therefore, OPR found that the DOJ attorney committed intentional professional misconduct.

The DOJ attorney resigned from the Department before OPR completed its investigation. OPR referred its findings of professional misconduct to the appropriate state bar authorities.

15. Abuse of Authority, Failure to Honor Plea Agreement. A court of appeals ruled that the government breached its plea agreement with the defendant by failing to provide information about the defendant's cooperation at the time of sentencing, despite a provision in the plea agreement requiring the government to "make known to the Court at sentencing the full extent of the Defendant's cooperation." The court ruled that the DOJ attorney failed to unambiguously inform the court of the full extent of the defendant's cooperation, thereby breaching the plea agreement.

OPR conducted an investigation and found that the DOJ attorney did not commit professional misconduct or exercise poor judgment under the circumstances. At the time of the sentencing hearing, the practice in the district was to have defense counsel provide the court with the information regarding the defendant's cooperation. Prosecutors in the district addressed the issue of the defendant's cooperation during the sentencing hearing only if the defendant had provided substantial assistance under U.S.S.G. § 5K1.1, even though this practice was at odds with the standard language used in plea agreements in the district. After the court of appeals' decision, the district took steps to correct this problem in a management context.

16. Unauthorized Disclosure of Information. OPR investigated the disclosure of information by DOJ during the course of communications with a congressional committee about a particular matter. The committee asked for a copy of a plea agreement from a case prosecuted by DOJ and the agreement, a publicly filed document, was sent by facsimile to the committee. However, attached to the plea agreement was an internal DOJ document containing sensitive information.

OPR conducted an investigation and found that the internal DOJ document was inadvertently sent to the congressional committee as a result of a mistake, not professional misconduct or poor judgment. The DOJ attorney followed appropriate procedures that had proven effective in the past for transmitting information to the Congress, and the mistake stemmed from excusable human error.

17. Overzealous Prosecution. A district court found that a parole revocation hearing was tainted by prosecutorial vindictiveness. A DOJ attorney attended the hearing to provide information about a case he unsuccessfully prosecuted against the parolee. The DOJ attorney provided information about the parolee's arrest for carrying a concealed weapon, possessing a controlled substance, and lying about his past criminal conduct.

OPR conducted an investigation and found that the DOJ attorney did not act vindictively and did not commit professional misconduct, but rather acted appropriately under the circumstances. There is no prohibition against a prosecutor appearing at a revocation hearing and, given the prosecutor's knowledge of the underlying criminal conduct, she can provide useful information to the Parole Board. The DOJ attorney did not control the Parole Board or attempt to take over the hearing; she simply reviewed the facts of the case and responded to the Board's questions. Furthermore, the DOJ attorney appeared with the approval of her supervisors.

The court of appeals reversed the trial court, finding that there had been no prosecutorial vindictiveness, actual or presumed, and that the parolee's due process right had not been violated.

18. Rule 6(e) Violation. A litigating component referred a matter to OPR in which an employee discovered by accident that a reporter possessed information about a draft indictment that at the time was protected from disclosure by Federal Rule of Criminal Procedure 6(e).

OPR conducted an investigation and found that no member of the litigating component was responsible for the leak of protected information. OPR referred the matter to FBI/OPR for a determination whether an FBI employee OPR identified was responsible for the leak.

19. Unauthorized Disclosure of Information; Abuse of Prosecutive Authority. A DOJ attorney self-reported allegations made by a law enforcement agent that the attorney provided sensitive information about a narcotics investigation to a target of the investigation, refused to issue a subpoena for documents from the target, and terminated the investigation because of the attorney's relationship with the target. The allegations were made when the agent and other law enforcement personnel attempted to persuade another DOJ attorney to accept the narcotics matter for investigation.

OPR conducted an investigation and found that the agent had no basis for asserting that the DOJ attorney provided information to the target or had any relationship with the target. The DOJ attorney denied the allegations and provided a reasonable explanation for the decision not to issue the subpoena and to terminate the investigation. Additionally, the agent who made the allegations later retracted them in conversations with others, in a memorandum to a supervisor, and in an interview with OPR. In view of these facts, OPR concluded that the DOJ attorney did not commit professional misconduct but acted appropriately under the circumstances.

20. Misrepresentation to Court and/or Defense Counsel. OPR investigated an allegation that a DOJ attorney filed a complaint in a civil case containing a material misrepresentation.

OPR conducted an investigation and found that the DOJ attorney knowingly filed a false complaint by identifying information obtained from a state-authorized wiretap as information obtained from a confidential informant. OPR found that the DOJ attorney committed intentional professional misconduct by misleading the court and failing to represent the government competently.

The DOJ attorney resigned prior to the imposition of discipline. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

21. Speedy Trial Act Violation. A district court dismissed an indictment with prejudice because the government violated the Speedy Trial Act by allowing more than thirty days of non-excusable time to elapse before defendant's indictment. The court found that in obtaining multiple 30-day continuances, the DOJ attorney made misrepresentations to the court that the defendant had consented to the continuances, when he had not. The court also found that the DOJ attorney failed to obtain supervisory approval for the continuances. The court further found that the government had deliberately delayed so that it could induce the defendant to cooperate in a criminal investigation involving serious potential charges.

OPR conducted an investigation and found that the DOJ attorney engaged in professional misconduct by acting in reckless disregard of her duty of candor by misrepresenting to the court that the defendant had consented to the continuances when he had not. OPR also found that the attorney failed to comply with Department policies requiring her to obtain supervisory approval for continuances in excess of 60 days. OPR found that, by failing to consult her supervisor, the attorney acted in reckless disregard of her obligation to allow her supervisor to make an informed decision regarding whether further continuances were warranted.

The DOJ attorney received a reprimand. OPR did not refer its finding of professional misconduct to the appropriate bar authorities because this matter pre-dated the policy change that broadened bar referrals to include conduct that was in reckless disregard of an ethical obligation.

22. Unprofessional Conduct During Immigration Hearings. OPR received an allegation that an Immigration Judge had counseled an immigrant during a deportation proceeding to consider marrying an acquaintance under circumstances that could constitute marriage fraud. OPR also received allegations that the Immigration Judge behaved unprofessionally during several hearings by berating and shouting at immigrants and their counsel.

OPR conducted an investigation and found that the tapes and transcripts of the Immigration Court proceedings did not support the allegation that the Immigration Judge had suggested a course of action that would constitute a fraudulent or improper marriage. OPR also found, however, that the tapes and transcripts established that the Immigration Judge engaged in misconduct by acting in reckless disregard of his duty to maintaining an appearance of impartiality when he berated and shouted at immigrants and their attorneys.

The Immigration Judge left the Department before any discipline was imposed. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

23. Improper or Illegal Search. A district court ordered the return of property seized pursuant to a criminal search warrant, finding that the DOJ attorneys involved in the matter disregarded the rights of the property owner, an attorney. The court found that the warrant incorrectly described the premises to be searched, and that the warrant was impermissibly general in its description of the items to be searched. In addition, the court found that the search interfered with the attorney/client relationship that existed between the property owner and his clients, some of whose files were included in the scope of the search.

OPR conducted an investigation and found that the search was not improper. Although the warrant's description of the premises to be searched was inaccurate in one respect, the error did not invalidate the search under established precedent. Moreover, OPR found that the error in the description of the premises was understandable because the property was difficult to see clearly, and that the error did not result from any improper conduct by the DOJ attorneys. OPR found that the search was not unduly broad, and that it was necessary and proper for the government to search the client files to determine whether the records being sought were present. OPR found that the DOJ attorneys took appropriate precautions to limit the intrusiveness of the search and to minimize any potential interference with the property owner's business. Accordingly, OPR found that the DOJ attorneys did not commit professional misconduct or exercise poor judgment in connection with the search.

OPR Inquiries in Fiscal Year 2001