Office of Professional Responsibility
The Office of Professional Responsibility (OPR) was established in the Department of Justice by order of the Attorney General dated December 9, 1975, to ensure that Department employees perform their duties in accordance with the professional standards expected of the nation's principal law enforcement agency. This is the Office's twenty-sixth annual report to the Attorney General, and it covers fiscal year 2001 (October 1, 2000 - September 30, 2001).
OPR has jurisdiction to investigate allegations of professional misconduct made against Department of Justice attorneys, investigators, or law enforcement personnel where the allegations relate to the exercise of an attorney's authority to investigate, litigate, or provide legal advice. OPR also has authority to investigate other matters when requested or authorized to do so by the Attorney General or the Deputy Attorney General.
Typical misconduct allegations that OPR investigates include Brady, Giglio, and Federal Rule of Criminal Procedure 16 discovery violations; improper conduct before the grand jury; improper coercion or intimidation of witnesses; improper use of peremptory strikes during jury selection; improper questioning of witnesses; improper introduction of evidence; misrepresentations to the court and/or opposing counsel; improper closing arguments; failure to diligently represent the interests of the government; failure to comply with court orders; and unauthorized disclosure of information. In addition, OPR examines cases in which courts have awarded Hyde Amendment fees to the defendant based on a finding that the government's conduct was frivolous, vexatious, or in bad faith.
OPR receives allegations from a variety of sources, including judicial opinions and referrals, private individuals and attorneys, and other federal agencies. Some of the most important sources are internal Department referrals. All Department employees are obligated to report to their supervisors any evidence or non-frivolous allegation of misconduct, or they may bring the information directly to the attention of OPR. Supervisors, in turn, are obligated to report to OPR any matters in which the alleged misconduct is serious. Supervisors and employees are encouraged to contact OPR for assistance in determining whether the matter should be referred to OPR. Information provided to OPR may be confidential. In appropriate cases, OPR will disclose that information only to the extent necessary to resolve the allegation.
Upon receipt, OPR reviews each allegation and determines whether further investigation is warranted. If it is, OPR then determines whether to conduct an inquiry or a full investigation in a specific case. This determination is a matter of investigative judgment and involves consideration of many factors, including the nature of the allegation, its apparent credibility, its specificity, its susceptibility to verification, and the source of the allegation.
The majority of complaints reviewed by OPR each year are determined not to warrant further investigation because, for example, the complaint is frivolous on its face, or is vague and unsupported by any evidence. In some cases, OPR initiates an inquiry because more information is needed to resolve the matter. In such cases, OPR may obtain written responses from the attorney(s) against whom the allegation was made, and may review other relevant materials such as pleadings, transcripts, and additional evidence requested from the complainant. Most inquiries are resolved based on the additional written record.
In cases that cannot be resolved based solely on the written record, OPR conducts a full on-site investigation, including a review of the case files and interviews of witnesses and the subject attorney(s). The interviews ordinarily are conducted by two OPR attorneys. All Department employees have an obligation to cooperate with OPR investigations, and to give information that is complete and candid. Employees who fail to cooperate with OPR investigations may be subject to formal discipline, including removal.
Judicial findings of misconduct must be referred to OPR by Department employees. Except in extraordinary cases, such findings are expeditiously investigated by OPR regardless of any planned appeal.
OPR ordinarily completes investigations relating to the actions of attorneys who have resigned or retired in order to better assess the litigation impact of the alleged misconduct and to permit the Attorney General and Deputy Attorney General to judge the need for changes in Department policies or practices.
OPR reports the results of its investigations to the Office of the Deputy Attorney General and to the appropriate management officials in the Department. It is those officials who are responsible for imposing any disciplinary action that may be appropriate. In matters where OPR concludes that a Department attorney engaged in professional misconduct, pursuant to Department policy OPR includes in its report a recommended range of discipline. Although OPR's recommendation is not binding on the management official responsible for proposing discipline, pursuant to Department policy, if either the proposing official or deciding official decides to take an action that is outside the range of discipline recommended by OPR (whether it is harsher or more lenient), that official must notify the Office of the Deputy Attorney General in advance of implementing that decision.
OPR also reviews case files and statistical data to identify any misconduct trends or systemic problems in the programs, policies, and operations of the Department. Trends and systemic problems are brought to the attention of appropriate management officials.
OPR is responsible for preparing summarized reports of certain OPR investigations for public release pursuant to a policy adopted in 1993. Subject to privacy and law enforcement considerations, the policy provides for the disclosure of the results of OPR investigations in matters involving a finding of intentional professional misconduct, in matters involving allegations of serious professional misconduct in which there has been a demonstration of public interest, and in matters in which the Department attorney who was the subject of the allegations requests such disclosure. Under the public disclosure procedures, OPR prepares a proposed summary which is initially reviewed by the Office of Information and Privacy and then is provided to the subject of the allegations and his or her supervisors for comment. OPR then transmits the proposed summary, along with the comments and OPR's recommendation on whether the summary should be released, to the Office of the Deputy Attorney General for its consideration. The Attorney General makes the final determination on whether a summary should be disclosed to the public.
The Department broadened its policy on notifying bar counsel when a current or former Department attorney is found to have engaged in professional misconduct. Beginning with findings in reports issued by OPR after June 1, 2001, the bar notification policy extended to all findings of professional misconduct, whether the result of intentional misconduct or conduct in reckless disregard of an ethical obligation. Once any disciplinary action is final, OPR notifies the bar counsel in each jurisdiction in which a subject attorney is licensed of the finding of professional misconduct, and offers to provide additional information regarding OPR's findings if appropriate confidentiality can be maintained. The new bar referral policy more than doubled the number of OPR matters eligible for bar notification each year. Under both the former and current policies, however, no referral is made where the conduct in question involves exclusively internal Department interests which do not appear directly to implicate a bar rule.
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.
In fiscal year 2001, OPR received 844 complaints and other letters and memoranda requesting assistance. OPR determined that 308 of the matters warranted further review by OPR attorneys. OPR opened full investigations in seventy-eight of those matters; the other 230, which are termed "inquiries," were resolved with no findings of professional misconduct, based on further review, responses from the subjects, and other information. When information developed in an inquiry indicated that further investigation was warranted, the matter was converted to a full investigation.
The remaining 536 matters were determined not to warrant an inquiry by OPR because, for example, they addressed matters outside the jurisdiction of OPR; sought review of issues in pending litigation or that had already been considered and rejected by a court; were frivolous, vague, or unsupported by any evidence; or simply requested information. Those matters were addressed by experienced management analysts through correspondence or referral to another government agency or Department of Justice component. A supervisory OPR attorney and the Deputy Counsel reviewed all such dispositions involving DOJ attorneys.
| Sources of Complaints in Investigations
Opened in FY 2001
|Source||Complaints Leading to Investigations||Percentage of All Investigations|
|Judicial opinions & referrals(2)||
OPR opened a total of seventy-eight new investigations in fiscal year 2001. These seventy-eight investigations involved 113 separate allegations of misconduct. The subject matter of the 113 allegations is set out in Table 2.
| Misconduct Allegations in Investigations Opened by OPR
in Fiscal Year 2001, by Type of Allegation
|Type of Allegation||Inquiries Opened||Percentage of All Allegations in Investigations|
|Abuse of authority, including abuse of prosecutorial discretion||
|Improper remarks to a grand jury, during trial or in pleadings||
|Misrepresentation to the court and/or opposing counsel||
|Unauthorized disclosure of confidential information, including grand jury information protected by Rule 6(e), Crim. R. Fed. P.||
|Failure to perform/dereliction of duty||
|Failure to comply with Brady, Giglio or Rule 16 discovery||
|Failure to comply with court orders or federal rules||
|Conflict of interest||
|Failure to comply with DOJ rules and regulations||
|Subornation of perjury/failure to correct false testimony||
|Interference with defendant's rights||
|Lateness (i.e., missed filing dates)||
|Lack of fitness to practice law||
|Improper contact with represented party||
|Failure to comply with Congressional discovery requests, including subpoenas||
|Unauthorized practice of law||
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. Â§ 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.
Characteristics of Inquiries Opened in Fiscal Year 2001: The sources for the 230 matters designated as inquiries are set forth in Table 3. The nature of the 304 allegations contained in those inquiries is set forth in Table 4.
|Sources of Complaints in Inquiries Opened in FY 2001|
|Source||Complaints Leading to Inquiries||Percentage of All Inquiries|
|Judicial opinions & referrals(9)||28||12.2%|
|Misconduct Allegations in Inquiries Opened by OPR
in Fiscal Year 2001, by Type of Allegation
|Type of Allegation||Inquiries Opened in FY 2001||Percentage of All Allegations in Inquiries|
|Abuse of authority, including abuse of prosecutorial discretion||76||25.0%|
|Improper remarks to a grand jury, during trial or in pleadings||15||5.0%|
|Misrepresentation to the court and/or opposing counsel||25||8.2%|
|Unauthorized disclosure of confidential information, including grand jury information protected by Rule 6(e), Fed. R. Crim. P.||32||10.5%|
|Failure to perform/dereliction of duty||17||5.6%|
|Failure to comply with Brady, Giglio or Rule 16 discovery||24||7.9%|
|Failure to comply with court orders or federal rules||0||0.0%|
|Conflict of interest||10||3.3%|
|Failure to comply with DOJ rules and regulations||32||10.5%|
|Subornation of perjury/failure to correct false testimony||11||3.6%|
|Interference with defendant's rights||5||1.6%|
|Lateness (i.e., missed filing dates)||2||.7%|
|Lack of fitness to practice law||15||5.0%|
|Improper contact with represented party||5||1.6%|
|Failure to comply with Congressional discovery requests, including subpoenas||3||1.0%|
|Unauthorized practice of law||1||0.3%|
The data demonstrates that the matters opened as "inquiries" during fiscal year 2001 were remarkably diverse. Although allegation codes are assigned to each, many of the incoming items do not contain a complaint against a Department attorney. For example, some inquiries are opened based on allegations of whistleblower retaliation made by FBI employees, or on memoranda memorializing prosecutive advice given by OPR attorneys in connection with matters under investigation by FBI/OPR. Others involve requests for advice from Department officials regarding their obligations to report suspected unethical conduct by private attorneys. Thus, only limited comparisons may be made between these data and information regarding OPR investigations.
Inquiries Closed in Fiscal Year 2001: OPR closed a total of 288 inquiries in fiscal year 2001, encompassing a total of 299 separate allegations. Forty-two of those matters were converted to full investigations after evidence was developed showing that further investigation was required. Based on the results of our inquiries, 134 matters were closed because OPR concluded that the allegation was without merit or that further investigation was unlikely to result in a finding that the attorney engaged in professional misconduct. An additional forty-six matters were determined to be more appropriately handled by another component or agency. The remaining matters were closed for a variety of reasons, ranging from determinations that the complaint raised management issues rather than issues of professional misconduct, to findings that the matters had already been resolved in other Department of Justice components.
1. Improper Disclosure of Confidential Cooperator's Name. OPR received a request from a former cooperator that OPR reconsider its rejection of the cooperator's prior allegation that a DOJ attorney improperly revealed the cooperator's name in discovery to a criminal defendant. In support of his request, the former cooperator provided OPR with supplemental investigative materials compiled by a private investigator. OPR reviewed the supplemental information but found none of it germane to the propriety of the contested disclosure. OPR also gathered court records relating to the disclosure, which established that the cooperator's name was provided, pursuant to a court order, for purposes of an upcoming trial. Because further investigation was unlikely to result in a finding of misconduct, OPR closed the matter.
2. Subornation of Perjury. OPR received an allegation from a private attorney that a DOJ attorney suborned perjury from a witness before a grand jury. OPR requested additional information from the complainant, and reviewed grand jury transcripts, pleadings, briefs, and other evidentiary materials. Based on the results of its inquiry, OPR concluded that the allegation, which had been rejected by the trial court and the appellate court, lacked merit. The evidence did not support the allegation that the witness lied in his grand jury testimony or that the DOJ attorney suborned false testimony. Accordingly, OPR closed the matter.
3. Improper Disclosure of Information. OPR received notification that a bar complaint had been filed against a DOJ attorney for allegedly disclosing to one defendant statements made by another defendant in a proffer. In the course of its inquiry, OPR learned that counsel for the proffering defendant had attached to a motion to suppress a document containing the allegedly disclosed information. OPR also learned that the state bar dismissed as "frivolous" the complaint made against the DOJ attorney. Based on the results of its inquiry, OPR concluded that the DOJ attorney did not act improperly.
4. Rule 16 Discovery Violation. OPR received an allegation that a former DOJ attorney willfully submitted a false answer to a discovery request in a civil case. Based on the results of its inquiry, which included a review of a written response from the DOJ attorney, OPR concluded that the government's discovery response was accurate and that further investigation was not warranted.
5. Violation of Grand Jury Secrecy. OPR received an allegation that two DOJ attorneys improperly disclosed grand jury information, in violation of Rule 6(e) of the Federal Rules of Criminal Procedure, by filing a declaration that stated that the defense attorney's client was a target of a federal grand jury investigation. The allegation was raised during the proceedings, and the district court found that the DOJ attorneys had not violated Rule 6(e). Because OPR generally does not conduct inquiries into allegations that have been considered and rejected by the court in the course of the proceeding, OPR closed the matter without further investigation.
6. Brady Violation. OPR received a copy of a complaint to the disciplinary board of a state bar lodged by a federal inmate who had been convicted of drug trafficking. The complaint alleged that a DOJ attorney deliberately failed to disclose favorable evidence regarding the mental fitness of the state police officer who arrested the inmate and was the lead prosecution witness at the inmate's trial. OPR initiated an inquiry and reviewed a written response from the DOJ attorney. In addition, OPR determined that the inmate's claim had already been rejected by the courts that considered it. Furthermore, OPR determined that the DOJ attorney was not aware of the state police officer's mental health issues at the time of the inmate's prosecution. Accordingly, OPR concluded that the DOJ attorney did not suppress exculpatory evidence in violation of his Brady obligations, and closed the matter.
7. Retaliation; FBI whistleblower complaint. FBI/OPR referred to OPR allegations made by an FBI employee that he had received unsatisfactory performance evaluations and was being recommended for termination because of his complaint about the conduct of a fellow employee. OPR reviewed voluminous materials from the FBI, including responses from the employee's various supervisors. OPR concluded that the employee had engaged in years of seriously deficient work performance, predating the complaint he filed against his fellow employee. OPR further concluded that reasonable grounds did not exist to believe that there had been or was going to be a reprisal against the employee for making a protected disclosure.
8. Unprofessional or Unethical Behavior. OPR received general allegations from a detainee awaiting deportation that an Immigration Judge had engaged in a conspiracy, lied to detainees, and acted unprofessionally. OPR twice wrote the detainee to request more details about his allegations, in the second letter offering to obtain a translator so that the detainee could more specifically articulate his allegations. The detainee declined OPR's offer. Because the detainee's allegations were too vague and general to allow for a meaningful investigation, OPR closed the inquiry.
9. Interference with Defendant's Right to Counsel. OPR received allegations from an attorney that a DOJ attorney who represented the Bureau of Prisons (BOP) in conditions of confinement litigation committed professional misconduct by interfering with the right of the attorney's client to communicate while incarcerated; by having ex parte communications with the attorney's client; by obstructing the attorney's access to evidence; and by making degrading oral and written comments about the attorney during the litigation. OPR concluded that further investigation of these allegations was unwarranted, as the allegations on their face did not rise to the level of professional misconduct, and close examination revealed that the allegations were directed at the actions of BOP employees, not the DOJ attorney.
10. Ex Parte Communications; Interference with Defendant's Right to Counsel. An inmate provided assistance to the United States with regard to the prosecution of another inmate for attempted jury tampering. In a complaint to OPR, the cooperating inmate alleged that a DOJ attorney engaged in ex parte communications with him despite his request for assistance of counsel and failed to honor commitments to file a Rule 35 motion for reduction of sentence and to provide for the inmate's safety and protection while incarcerated. OPR conducted an inquiry and found that the inmate's attorney was present during the DOJ attorney's initial meeting with the inmate; the DOJ attorney acted properly when he met with the inmate at the prison on two subsequent occasions to discuss matters related to the inmate's role as a cooperating witness, but did not discuss the charges against the inmate; the inmate's allegation that the DOJ attorney promised to file a Rule 35 motion was not credible and was contradicted by the inmate's grand jury testimony; and the inmate's allegations that his personal safety was at risk were not credible. Based on these findings, OPR concluded that the DOJ attorney acted appropriately under the circumstances.
11. Breach of Agreement. OPR received an allegation that a DOJ attorney failed to honor an agreement made at an immigration hearing to drop charges that the complainant's family members entered the country by falsely claiming U.S. citizenship if the family members voluntarily left the country. After the family members returned to Russia, they learned that they probably would not be granted a visa to return to the United States because they had falsely claimed citizenship. OPR found that the DOJ attorney did honor the agreement to withdraw the lodged charges against the complainant's family members, and that the DOJ attorney did not represent that the family members would be permitted to return to the United States. Based on these findings, OPR concluded that the DOJ attorney acted appropriately under the circumstances.
12. Fraud. FBI/OPR referred to OPR evidence that an FBI employee applied for and received an education allowance from the FBI to provide for the cost of his minor children's education while he was posted overseas. The FBI employee subsequently applied for and received a similar education allowance from another federal agency. After the FBI made inquiries, the FBI employee reimbursed the FBI for the monies it had awarded. OPR determined that the FBI employee's conduct, if substantiated, could constitute a federal criminal violation. Accordingly, OPR referred this matter to the Criminal Division's Public Integrity Section to determine whether a criminal investigation was warranted.
13. Abuse of Authority; Selective Prosecution. OPR received a copy of a district court decision in a private case concerning the sale of a newspaper. The federal government was not a party to the case, but the district court, relying on speculative allegations from a private party, commented that by not intervening the government had put itself in a position that allowed inferences of political influence to be drawn. OPR analyzed the court's opinion and a DOJ submission to the court regarding the investigation. Based on its review of these materials, OPR concluded that the court's comments were not supported by any evidence. Accordingly, OPR closed the matter without further investigation.
14. Overzealous Prosecution; Abuse of Prosecutive or Investigative Authority. OPR received allegations by several individuals that two DOJ attorneys abused the grand jury process through several inappropriate actions. Specifically, it was alleged that one of the attorneys caused the issuance of a grand jury subpoena without permitting adequate time for the witness to travel from another state to the grand jury; unreasonably demanded that this witness produce his computer before the grand jury on short notice; lied to counsel for the witness about certain matters; treated counsel for the witness with disrespect; and purposefully delayed releasing the witness from the grand jury subpoena until he would miss his return flight home. It was also alleged that the entire criminal investigation was malicious.
OPR initiated an inquiry and received written responses from the DOJ attorneys. Based on its review of those responses, as well as grand jury transcripts and other documents, OPR found that none of the allegations was supported by any evidence. Accordingly, OPR closed the matter without further investigation.
15. Unprofessional or Unethical Behavior; Bar Complaints. Disciplinary Counsel for a state bar advised OPR that two DOJ attorneys may have violated a state bar rule by entering into a plea agreement with a criminal defendant that required the defendant to waive his right to bring any civil or administrative claim for ethical violations against the United States or state and local officials. OPR initiated an inquiry and received written responses from the DOJ attorneys. OPR found that there were two state bar precedents indicating that such a provision in a plea agreement ordinarily is improper. However, OPR also found that, under the unique circumstances of this case, the provision was not improper because the defendant had filed numerous frivolous complaints in the past, he was represented by highly competent counsel, and the agreement was approved by the chief judge of the district court. Based on these findings, OPR closed the matter without further investigation. OPR shared the results of its investigation with the appropriate state bar authorities and informed them that the Department would provide guidance to Department attorneys about this issue.
16. Abuse of Prosecutive or Investigative Authority. OPR received an allegation that DOJ attorneys improperly declined to prosecute a bankruptcy examiner and other persons who allegedly profited illegally from the sale of a business. OPR conducted an inquiry and determined that the matter had been extensively investigated by DOJ attorneys and that there was no evidence that prosecution had been declined for an improper reason. OPR found that, among other reasons for declining prosecution, DOJ attorneys had determined that prosecution of the alleged criminal conduct was barred by the applicable statute of limitations. Accordingly, OPR closed the matter without further investigation.
17. Unauthorized Disclosure (Non-media). OPR received an allegation that a DOJ attorney provided a DOJ file concerning a federal investigation to an individual who was a target of an ongoing criminal investigation. OPR determined that the allegation, if substantiated, could constitute a federal criminal violation. Accordingly, OPR referred the matter to the Criminal Division's Public Integrity Section to determine whether a criminal investigation was warranted.
18. Conflict of Interest (Personal Relationship). OPR received a memorandum from DEA/OPR, regarding a DOJ attorney's relationship with an individual associated with a drug trafficker who was suspected of negotiating from prison a contract for murdering a confidential DEA informant. OPR initiated an inquiry and learned that the DOJ attorney had an ongoing relationship with the individual, and that the DOJ attorney's Office had taken steps to ensure that the attorney did not have access to information on official matters that might leak to the convicted drug trafficker. OPR referred this matter to the OIG because the allegations did not relate to the DOJ attorney's authority to investigate, litigate, or provide legal advice.
During fiscal year 2001, Department attorneys continued to perform their duties in accordance with the high professional standards expected of the nation's principal law enforcement agency. The policy on notifying bar counsel when a current or former DOJ attorney is found to have engaged in professional misconduct was broadened to include all findings of professional misconduct, whether the result of intentional misconduct or conduct in reckless disregard of an ethical obligation. OPR assisted the Executive Office for U.S. Attorneys by providing comments on proposed revisions to the Department's press guidelines. OPR also continued to work with the Office of the Attorney General, the Office of Legal Counsel, the Executive Office for Immigration Review, and other Department components to draft regulations to govern the contempt authority Congress granted to Immigration Judges. OPR offered certain Department attorneys who were the subjects of OPR investigations an opportunity formally to respond to OPR's findings and conclusions, and participated in policy-oriented activities of the Department. OPR's participation in these efforts as well as in the Department's training and education activities increased awareness of ethical standards and responsibilities throughout the Department of Justice, and have helped the Department to meet the challenge of enforcing the law and defending the interests of the United States in an increasingly complex environment.
1. An attorney's supervisor may decide to address the matter through non-disciplinary alternatives such as reassignment, training, or closer supervision where, for example, OPR concludes that a Department attorney exercised poor judgment but did not engage in professional misconduct.
2. This category includes self-reporting by Department employees of judicial criticism and judicial findings of misconduct.
3. These matters include allegations of retaliation, fraud, and theft.
4. OPR finds intentional professional misconduct when it concludes that an attorney violated an obligation or standard by (1) engaging in conduct with the purpose of obtaining a result that the obligation unambiguously prohibits; or (2) engaging in conduct knowing its natural or probable consequence, and that consequence is a result that the obligation or standard unambiguously prohibits.
5. OPR finds that an attorney has engaged in professional misconduct based upon the reckless disregard of a professional obligation or standard when it concludes (1) that the attorney knew, or should have known, based on his or her experience and the unambiguous nature of the obligation or rule of conduct, of an obligation or rule of conduct; (2) that the attorney knew, or should have known based on his or her experience and the unambiguous applicability of the obligation or rule of conduct, that the attorney's conduct involved a substantial likelihood that he or she would violate or cause a violation of the obligation or rule of conduct; and (3) that the attorney nevertheless engaged in the conduct, which was objectively unreasonable under all the circumstances.
6. OPR finds that an attorney has exercised poor judgment when, faced with alternate courses of action, the attorney chooses a course that is in marked contrast to the action that the Department may reasonably expect an attorney exercising good judgment to take. Poor judgment differs from professional misconduct in that an attorney may act inappropriately and thus exhibit poor judgment even though he or she may not have violated or acted in reckless disregard of a clear obligation or standard. In addition, an attorney may exhibit poor judgment even though an obligation or standard at issue is not sufficiently clear and unambiguous to support a finding of professional misconduct.
7. OPR finds that an attorney has made a mistake when the attorney's conduct reflected excusable human error despite the exercise of reasonable care under the circumstances.
8. To protect the privacy of the Department attorneys and other individuals involved in the investigations summarized, OPR has omitted names and identifying details from these examples. In addition, OPR has used male pronouns in even numbered examples and female pronouns in odd numbered examples regardless of the actual gender of the individual involved.
9. This category includes self-reporting by Department employees and officials of judicial criticism and judicial findings of misconduct.
10. These matters include allegations of retaliation, fraud, and theft.