DOJ: OPR: Fiscal Year 2004 Annual Report

U.S. Department of Justice
Office of Professional Responsibility

Fiscal Year 2004 Annual Report

Introduction

Jurisdiction and Functions of OPR

Significant Activities in Fiscal Year 2004

Intake and Initial Evaluation of Complaints

OPR Investigations in Fiscal Year 2004

Characteristics of Investigations Opened in Fiscal Year 2004
Investigations Closed in Fiscal Year 2004
Examples of Investigations Closed in Fiscal Year 2004

OPR Inquiries in Fiscal Year 2004

Characteristics of Inquiries Opened in Fiscal Year 2004
Inquiries Closed in Fiscal Year 2004
Examples of Inquiries Closed in Fiscal Year 2004

Conclusion


Tables

Table 1.Sources of Complaints in Investigations Opened in FY 2004
Table 2.Misconduct Allegations in Investigations Opened in FY 2004, by Type of Allegation
Table 3.Sources of Complaints in Inquiries Opened in FY 2004
Table 4. Misconduct Allegations in Inquiries Opened in FY 2004, by Type of Allegation
Table 5.Outcome Categories of Inquiries Resolved in FY 2004


Annual Report for Fiscal Year 2004

Introduction

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 high professional standards expected of the nation's principal law enforcement agency. This is the Office’s twenty-ninth annual report to the Attorney General, and it covers fiscal year 2004 (October 1, 2003 - September 30, 2004).

Jurisdiction and Functions of OPR

OPR has jurisdiction to investigate allegations of professional misconduct made against Department of Justice (DOJ) 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 a 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 opening and closing arguments; failure to diligently represent the interests of the government; failure to comply with court orders, including scheduling orders; and unauthorized disclosure of client 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, but only to the extent necessary to resolve the allegation, or when required by law.

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, is outside OPR’s jurisdiction, 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 request additional information from the complainant or obtain a written response from the attorney 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 ordinarily 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. Interviews of subject attorneys ordinarily are transcribed by a court reporter. At the end of the interview, the subject is given an opportunity, subject to a confidentiality agreement, to review the transcript and to provide a supplemental written response. All Department employees have an obligation to cooperate with OPR investigations and to provide 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, pursuant to Department policy, investigated by OPR regardless of any planned appeal.

OPR ordinarily completes investigations relating to the actions of attorneys who resign or retire during the course of the investigation 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. In certain cases, however, the Office of the Deputy Attorney General will approve termination of such investigations if it deems such action, in light of OPR’s limited resources, is in the best interests of the Department. Terminated investigations may still result in referrals to the appropriate state bar authorities if OPR determines that the evidence warrants a referral.

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 discipline, pursuant to Department policy, if the disciplinary 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. Pursuant to Department policy, once a disciplinary action is final, OPR notifies the bar counsel in each jurisdiction in which an attorney found to have committed professional misconduct is licensed. The referral policy includes findings of intentional professional misconduct, as well as findings that a subject attorney acted in reckless disregard of a professional obligation or standard. OPR does not, however, make bar referrals where the conduct in question involved exclusively internal Department interests which do not appear directly to implicate a bar rule. In addition, OPR reviews reports issued by the Office of the Inspector General (OIG) concerning Department attorneys to determine whether the conduct at issue should be referred to the relevant state bar counsel.

OPR also reviews case files and statistical data of matters under investigation 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.

Significant Activities in Fiscal Year 2004

During fiscal year 2004, OPR participated in non-investigative, policy, and project-oriented activities of the Department. OPR participated in numerous educational and training activities both within and outside the Department of Justice to increase awareness of the ethical obligations imposed by statutes, court decisions, regulations, Department policies, and bar rules. During fiscal year 2004, OPR attorneys participated in the U.S. Attorney’s National Conference and made presentations in several media relations workshops given at the National Advocacy Center focusing on the policies and ethical issues concerning contacts with the media. OPR attorneys also participated in an Ethics Advisors’ conference at the National Advocacy Center and contributed to an orientation program for new Department attorneys.

On the international front, OPR met separately with a delegation of judges from Azerbaijan and a Nigerian jurist to discuss issues of prosecutorial ethics. In connection with the Criminal Division’s Overseas Prosecutorial Development Assistance and Training program, an OPR attorney traveled to the Republic of Georgia and presented speeches to groups of prosecutors and members of the Justice Ministry’s Office of the Inspector General on issues associated with the investigation of prosecutorial misconduct. OPR attorneys also met with officials from the People’s Republic of China Ministry of Justice, and with a law enforcement official from Hong Kong to discuss issues associated with prosecutorial ethics.

OPR continued to serve as the Department’s liaison to state bar counsel on matters affecting the professional responsibility of Department attorneys. OPR also attended the mid-year and annual meetings of the National Organization of Bar Counsel that addressed current trends in attorney regulation, and participated on a panel addressing issues of prosecutorial misconduct. In accordance with the Department’s policy, OPR notified the appropriate bar disciplinary authorities of findings of professional misconduct against Department attorneys and responded to the bars’ requests for additional information on those matters. OPR also advises other Department components regarding instances of possible professional misconduct by non-Department attorneys. In forty-two such matters handled by OPR in fiscal year 2004, OPR reviewed information relating to possible misconduct by the attorneys, advised components regarding the applicable state bar rules, and rendered advice on whether bar referrals were warranted. In some cases, OPR notified the applicable bar disciplinary officials directly.

In fiscal year 2003, the Attorney General’s Advisory Committee approved a plan under which OPR created a Rapid Response Team designed to enhance OPR’s ability to respond quickly and effectively to misconduct allegations that arise in matters of particular importance to the Department. The Rapid Response Team initially consisted of one permanent OPR attorney and one experienced DOJ attorney serving a one-year detail at OPR. The work of the Rapid Response Team, like the other work at OPR, is directed and supervised by the Counsel and the Deputy Counsel. In fiscal year 2004, OPR expanded the Rapid Response Team to include two additional permanent OPR attorneys and two additional experienced DOJ attorneys serving details. The Rapid Response Team has been instrumental in handling expeditiously matters of importance to the Department.

As noted in OPR’s Annual Report for Fiscal Year 2002, OPR no longer exercises oversight of the Offices of Professional Responsibility in the Federal Bureau of Investigation (FBI/OPR) or the Drug Enforcement Administration (DEA/OPR). In July 2001, the Attorney General placed those internal inspection units under the oversight of the OIG. 66 Fed. Reg. 37902 (July 20, 2001). Accordingly, OPR’s Annual Report no longer contains information about the operation of those offices. OPR continued, however, to exercise jurisdiction over FBI and DEA agents when allegations of misconduct against such agents related to the exercise of a Department of Justice attorney’s authority to investigate, litigate, or provide legal advice. OPR also continued to share with the OIG responsibility for reviewing and investigating (as appropriate) whistleblower complaints by FBI employees.

Intake and Initial Evaluation of Complaints

In fiscal year 2004, OPR received 987 complaints and other letters and memoranda requesting assistance, an increase of approximately 8% from fiscal year 2003. OPR determined that 309 of the matters, or approximately 31%, warranted further review by OPR attorneys. OPR opened full investigations in eighty-eight of those matters; the remaining 221, 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 678 matters were determined not to warrant an inquiry by OPR because, for example, they related to matters outside the jurisdiction of OPR; sought review of issues that were being litigated 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.

Characteristics of Investigations Opened in Fiscal Year 2004: OPR investigations opened in fiscal year 2004 were based on complaints from a variety of sources, as reflected in Table 1.

TABLE 1

Sources of Complaints in Investigations
Opened in FY 2004

Source Complaints Leading to Investigations Percentage of All Investigations

Judicial opinions & referrals 1

53

60.2%

Private attorneys

5

5.7%

Department components

23

26.1%

Private parties

2

2.3%

Other agencies

2

2.3%

Other sources

3

3.4%

Total

88

100.0%

OPR opened a total of eighty-eight new investigations in fiscal year 2004. Four of these matters involved non-attorney subjects. The eighty-eight investigations involved 144 separate allegations of misconduct. The subject matter of the 144 allegations is set out in Table 2.

TABLE 2

Misconduct Allegations in Investigations Opened
in Fiscal Year 2004, by Type of Allegation

Type of Allegation New
Allegations
Investigated
in FY2004
Percentage of
All
Allegations in
Investigations

Abuse of authority, including abuse of prosecutorial discretion

26

18.1%

Improper remarks to a grand jury, during trial, or in pleadings

10

6.9%

Misrepresentation to the court and/or opposing counsel

13

9.0%

Unauthorized disclosure of information, including grand jury information protected by Rule 6(e), Fed. R. Crim. P.

16

11.1%

Failure to perform/dereliction of duty

18

12.5%

Failure to comply with Brady, Giglio, or Rule 16 discovery

12

8.3%

Failure to comply with court orders or federal rules

14

9.7%

Conflict of interest

5

3.5%

Failure to comply with DOJ rules and regulations

14

9.7%

Subornation of perjury/failure to correct false testimony

2

1.4%

Interference with defendant’s rights

1

0.7%

Lateness (i.e., missed filing dates)

7

4.9%

Lack of fitness to practice law

5

3.5%

Improper contact with represented party

0

0.0%

Failure to comply with congressional requests, including subpoenas

0

0.0%

Unauthorized practice of law

0

0.0%

Other 2

1

0.7%

Total

144

100.0%

Investigations Closed in Fiscal Year 2004: OPR closed a total of ninety-four investigations in fiscal year 2004. Four of the investigations closed involved non-attorney subjects. Of the ninety-four investigations that were closed during the fiscal year, OPR found professional misconduct in twenty-seven, or approximately 29%, of the matters. Of the twenty-seven matters in fiscal year 2004 in which OPR found professional misconduct, sixteen involved at least one finding of intentional professional misconduct by a Department attorney. 3 In ten of the twenty-seven matters, OPR found that a Department attorney engaged in professional misconduct by acting in reckless disregard of an applicable obligation or standard. 4 In the remaining one matter, OPR found that a non-attorney Department employee acted in reckless disregard of his obligations. The proportion of investigations resulting in findings of professional misconduct on the part of Department attorneys was higher than in fiscal year 2003, in which OPR found professional misconduct in 13% of the investigations it closed, but was similar to fiscal year 2002, in which OPR found professional misconduct in 30% of its investigations.

Disciplinary action was initiated against attorneys in eighteen of the twenty-seven matters in which OPR found professional misconduct. In two matters, OPR’s recommendation that disciplinary action be taken against the subject attorney remained pending at the close of fiscal year 2004. In three matters in which OPR found professional misconduct, the subject attorney resigned from the Department prior to the completion of the OPR investigation. In one matter, the subject non-attorney who was found to have engaged in misconduct resigned from the Department prior to the completion of the OPR investigation. In three additional matters, the subject attorney resigned prior to the initiation of formal disciplinary proceedings. With respect to the eighteen matters in which disciplinary proceedings were initiated, the subject attorney in two of the matters was removed from employment with the Department. The subject attorney in another matter resigned in exchange for the withdrawal of his removal. Four attorneys were suspended for a period of time; proposals to suspend attorneys in seven other matters remain pending. Four attorneys received written reprimands.

OPR also closed seventeen investigations, or approximately 18% of the ninety-four investigations, with at least one finding that an attorney exercised poor judgment. 5 Five of those seventeen matters also involved findings of professional misconduct, and are included in the twenty-seven matters that contained findings of professional misconduct. Twenty matters, or approximately 21%, involved at least one finding that an attorney had made a mistake. 6 One of those twenty matters also included a finding of professional misconduct. Thus, of the ninety-four matters closed, OPR found professional misconduct or poor judgment in thirty-nine matters, or approximately 41%.

Examples of Investigations Closed in Fiscal Year 2004 7

1. Misconduct Before the Grand Jury. A litigating component referred to OPR an allegation that two DOJ attorneys appeared before a grand jury and made extensive comments outside the presence of a court reporter. The first DOJ attorney had conducted a grand jury investigation that resulted in the return of an indictment, but that attorney was later transferred off the case. Several months later, the second DOJ attorney reconvened the grand jury to present evidence for a superseding indictment. The first DOJ attorney asked the second attorney if she could come before the grand jury to say farewell and thank them for their work, and the second attorney acquiesced. When the first DOJ attorney appeared before the grand jury, she told the court reporter to leave the room and turn off the tape recorder. The court reporter left under protest. The first attorney then spoke to the grand jury off the record for approximately forty minutes about why she had been removed from the case, and made comments critical of the litigating component’s management. The first DOJ attorney also instructed the grand jurors on how they could advocate her return to the case. The second attorney also made comments to the grand jury and did not notify her supervisors of the incident.

OPR conducted an investigation and concluded that the first DOJ attorney engaged in intentional professional misconduct by making a presentation and engaging in extensive discussion with the grand jury without a court reporter or recording device present, in violation of Federal Rule of Criminal Procedure 6(e)(1). OPR concluded further that the first DOJ attorney committed intentional professional misconduct by making statements to the grand jurors that were irrelevant and prejudicial to the matter before it, and by making statements that influenced and inflamed the grand jurors and abused the grand jury process. In view of the professional misconduct findings, the first DOJ attorney received a fourteen-day suspension. OPR referred its findings of professional misconduct to the appropriate state bar authorities. OPR concluded that the second DOJ attorney exercised poor judgment by failing to terminate or correct the other attorney’s appearance before the grand jury, and by not immediately reporting the incident to her supervisors. OPR referred its finding of poor judgment to the attorney’s employing component for consideration in a management context.

2. Improper Closing Argument. A litigating component referred to OPR judicial criticism of a DOJ attorney’s closing argument in a sexual abuse case. A court of appeals criticized the DOJ attorney’s comment that the defendant elected to go to trial only after learning that the victim might testify that no abuse had occurred.

OPR conducted an investigation and concluded that the DOJ attorney made an excusable mistake in making the remark, but did not engage in professional misconduct or exercise poor judgment. OPR noted that the jury was aware of the facts that were the basis for the comment and had heard the defendant’s tape-recorded confession that differed from his trial testimony. It was permissible for the attorney to comment on the differences in the defendant’s statements, but the attorney erred in attributing this discrepancy to a fact not in evidence, namely, that the defendant had heard that the victim claimed not have been abused. OPR found that the DOJ attorney’s statement was not an attempt to mislead or improperly influence the jury. The DOJ attorney drew an otherwise reasonable inference from the evidence in the record and, in making an otherwise proper argument, mistakenly strayed beyond the bound of permissible comment.

3. Failure to File Certificate for Interlocutory Appeal. A court of appeals dismissed an interlocutory appeal filed by the government from an order suppressing evidence because the DOJ attorney who handled the appeal failed to timely file a certification stating that the appeal was not taken for purposes of delay and that the evidence was substantial proof of a fact material in the proceeding, as required by 18 U.S.C. § 3731.

OPR conducted an investigation and concluded that the DOJ attorney filed the notice of appeal, but failed to timely file the certification required by Section 3731. OPR determined that the DOJ attorney was not aware of the certification requirement, and was relatively inexperienced in appellate work. OPR noted that the certification requirement was outside of the experience of most DOJ attorneys, many of whom have never handled an interlocutory appeal. Because the DOJ attorney took reasonable steps to ensure that the appeal was handled properly, OPR concluded that she did not engage in professional misconduct or exercise poor judgment, but rather made a mistake despite exercising reasonable care under the circumstances.

OPR advised the Executive Office for United States Attorneys of several additional instances in which DOJ attorneys failed to file certifications with interlocutory appeals, and recommended that field offices be reminded of the requirement imposed by Section 3731.

4. Misconduct at Plea Colloquy. OPR received an allegation that a DOJ attorney misrepresented the facts and failed to correct the court when it incorporated the alleged misrepresentations into a colloquy with the defendant during the defendant’s guilty plea hearing. OPR conducted an investigation and found that the indictment and the factual stipulations incorporated into the written plea agreement, which was signed by the defendant and his counsel, made clear the offense with which the defendant was charged and the facts that satisfied the elements of the offense. OPR also found that given the written plea agreement and the reading of the indictment just before the court’s comment, it was reasonable for the DOJ attorney not to interrupt the court during the colloquy because the defendant, his counsel, and the court all understood the offense to which the defendant agreed to plead guilty. OPR therefore concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment in handling the defendant’s plea, but rather acted appropriately under the circumstances.

5. Failure to Maintain Active Bar Membership. A DOJ attorney was referred to OPR for not being an active member of any state bar. The attorney had been suspended by one bar for non-payment of dues in 1987, and at her own request, became inactive in the only other bar to which the attorney had been admitted in 1991. The attorney admitted that she knew of the Department’s requirement that its attorneys maintain active membership in at least one state bar, but claimed she had not received notice from the bar that suspended her for non-payment of dues.

OPR conducted an investigation and found that the bar which suspended the attorney had sent three letters to the attorney about bar dues and the resulting suspension for non-payment of dues. The address that the bar had for the DOJ attorney was correct, and the attorney had no credible explanation for non-receipt of the communications. OPR found that it was objectively unreasonable for the attorney to believe that, having failed to pay annual bar dues for more than ten years, she continued to be an active member of the bar. OPR concluded that in failing to remain an active member of any state bar for a twelve-year period, the attorney acted in reckless disregard of her obligation to maintain an active bar membership. OPR also found that the DOJ attorney acted in reckless disregard of the obligation to provide truthful, accurate information by asserting in an affidavit and certifying on a Department form that she was an active member of the bar when she was not.

The DOJ attorney received a one-day suspension. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

6. Improper Contacts with Represented Person; Candor to the Court. OPR received allegations that a DOJ attorney engaged in improper contacts with a potential government witness who was under indictment in another case and was represented by counsel. The contacts were initiated by the potential witness from the corrections facility where he was housed. During the course of the investigation OPR learned that the DOJ attorney may not have fulfilled his duty of candor to the court, and the OPR investigation was expanded to include this issue.

OPR conducted an investigation and concluded that the DOJ attorney did not violate any ethical standards regarding contact with a represented person because the potential witness had said that he had fired his attorney, and several of the conversations did not relate to matters on which he had been represented. OPR concluded, however, that the DOJ attorney exercised poor judgement when he failed to recognize that the termination of the representation did not resolve an inherent conflict of interest issue – the fired attorney also represented the defendant in the case – and did not bring that conflict to the attention of the court. OPR also concluded that the DOJ attorney exercised poor judgement by failing to correct the record regarding his contacts with the witness during a hearing before the trial judge: the defense attorney told the court there was only one brief contact, whereas there were actually more than ten contacts.

OPR referred its findings of poor judgment to the attorney’s employing component for consideration in a management context.

7. Unauthorized Acceptance of an Alford Plea. A DOJ attorney’s supervisor reported to OPR that the attorney accepted an Alford plea without obtaining authorization to do so, in violation of a DOJ rule. (An “Alford plea” is one in which the defendant enters a plea of guilty, but maintains that he or she did not in fact commit the offense charged.) OPR conducted an investigation and concluded that the attorney committed intentional professional misconduct. Although the attorney was unaware of the precise Department rule generally prohibiting Alford pleas, the attorney knew that DOJ attorneys must obtain approval before accepting such pleas, and in the past had objected to defendants who attempted to enter such pleas. In this case, however, the attorney agreed to an Alford plea without advising any supervisors or obtaining the requisite approval.

The DOJ attorney received a reprimand. OPR did not refer its finding of professional misconduct to the appropriate state bar authorities because the conduct involved an internal Department process and did not implicate a bar rule.

8. Improper Closing Argument; Discovery Violation; Improper Examination of a Witness. A district court ordered a new trial on the ground that a DOJ attorney made an improper remark during rebuttal closing argument. The defendant’s attorney asked in closing why the government had not ensured the truthfulness of its witnesses by giving them polygraph examinations. In rebuttal, the DOJ attorney responded by inquiring why the defendant had not placed in evidence the results of his own private polygraph examination. The court also cited other instances of the DOJ attorney’s allegedly improper conduct during the trial.

OPR conducted an investigation and concluded that the DOJ attorney’s rebuttal argument comment constituted professional misconduct because a prosecutor with the DOJ attorney’s experience should have known that a comment referring to facts not in evidence was likely to be interpreted by the jury as an attempt to impermissibly shift the burden of proof to the defendant. Although OPR credited the DOJ attorney’s explanation that the comment was made without thinking it through, it found that the DOJ attorney should have known that the argument was improper and likely to result in either a mistrial or a new trial.

OPR concluded further that the DOJ attorney exercised poor judgment by failing to timely disclose to the defense information concerning a government witness’ prior false testimony before the grand jury; not disclosing the information until the second trial day unnecessarily subjected the government’s case to attack for a Brady violation. Finally, OPR concluded that the DOJ attorney acted in reckless disregard of his Rule 403 obligations because he should have known that his direct examination of a witness would improperly elicit testimony suggesting that the defendant was involved in an attempt to intimidate a government witness, when there was no evidence that he was involved.

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

9. Discovery Violation; Misrepresentation to the Court. A defense attorney complained to OPR about the conduct of a DOJ attorney at a criminal trial. Among other things, the attorney asserted that the DOJ attorney withheld Brady material regarding immunity allegedly conferred upon two government witnesses, and misrepresented to the court the nature and extent of the immunity granted.

OPR conducted an investigation and found that the DOJ attorney did not enter into immunity agreements with the government witnesses, or otherwise confer transactional or use immunity upon them, and did not violate her Brady obligation or her duty of candor to the court. Accordingly, OPR concluded that the prosecutor did not commit professional misconduct in this matter. However, OPR found that the DOJ attorney exercised poor judgment by not fully informing defense counsel and the court of her representations to the cooperating witnesses and their counsel that the government did not intend to prosecute the witnesses because there was no evidence of criminal conduct by them.

OPR referred its finding of poor judgment to the attorney’s employing component for consideration in a management context.

10. Improper Coercion of a Guilty Plea; Misrepresentation to the Court. The attorney for a convicted defendant alleged that a DOJ attorney falsely induced his client to plead guilty, despite knowing that the government no longer had a prosecutable case against the defendant. OPR conducted an investigation to determine whether the DOJ attorney falsely induced the defendant to plead guilty; required the defendant to plead guilty to a charge for which there was an insufficient factual basis; and made false statements to the court regarding this matter.

Based on the results of its investigation, OPR found that the DOJ attorney did not falsely induce the defendant to plead guilty because at the time the DOJ attorney told the defense that a key witness would testify against the defendant, it was true; it was not until later that the DOJ attorney decided not to have the witness testify. OPR found further that there was a sufficient factual basis for the defendant to plead guilty to a conspiracy count. Finally, OPR concluded that the DOJ attorney made an inaccurate statement to the court during the sentencing hearing concerning the sequence of certain events, but it concluded that the inaccurate statement constituted an excusable mistake. Accordingly, OPR concluded that the DOJ attorney did not engage in professional misconduct or exercise poor judgment

11. Discovery Violation; Destruction of Evidence. A district court ruled that the government’s litigation consultants and expert witnesses intentionally destroyed evidence that was relevant to the lawsuit. The items deleted from computers or otherwise discarded included e-mails between the consultants and expert witnesses and drafts of expert witness reports. In its opinion, the district court held that these deletions constituted destruction of evidence by the United States warranting sanctions and the award of attorney fees and expenses.

OPR conducted an investigation and researched the relevant case law on retention and disclosure of drafts prepared by expert witnesses, information considered by experts in forming their opinion, assistance provided to expert witnesses in preparing their reports, and Federal Rule of Civil Procedure 26. In its analysis, OPR noted that the discovery request for draft reports and other communications was immediately communicated to the trial consultant, and that the DOJ attorneys then reasonably relied upon the consulting company as experienced trial consultants to comply with the discovery request by assuring that their e-mails were thereafter retained in the event that the court ultimately ordered their production. OPR also noted that at the time the conduct in question occurred, there was no clear and unambiguous rule or practice requiring disclosure of draft reports prepared by expert witnesses with assistance from consultants, particularly where, as here, there was no discovery request or court order requiring such disclosure. Accordingly, OPR concluded that the DOJ attorneys did not engage in professional misconduct or exercise poor judgment in this case, but rather acted appropriately under the circumstances.

12. Failure to Timely File Briefs. A litigating component referred to OPR an allegation that a DOJ attorney failed to timely file response briefs in two separate cases in the court of appeals. The DOJ attorney did not advise his supervisors of the late filings or of the court’s orders to show cause why the attorney should not be held in contempt.

OPR conducted an investigation and concluded that the DOJ attorney committed intentional professional misconduct by failing to comply with the court’s scheduling orders and by not notifying his supervisors of his failure to meet the court’s deadlines or of the orders to show cause. The DOJ attorney received a written reprimand. OPR referred its findings of professional misconduct to the appropriate state bar authorities.

13. Failure to Comply with Department Rules. Government attorneys who appeared regularly before the immigration court alleged that an Immigration Judge violated DOJ rules by issuing subpoenas to government employees and subsequently holding those employees in contempt when they failed to appear. OPR conducted an investigation and concluded that the DOJ rules did not unambiguously prohibit the issuance of subpoenas, but that the Immigration Judge made a mistake by failing to ensure that the agency employees had been personally served with the subpoenas prior to describing their conduct as contempt of the immigration court.

OPR recommended that the Executive Office for Immigration Review provide training to the Immigration Judges concerning the proper use of their subpoena power.

14. Discovery Violation. A litigating component referred to OPR a matter in which a district court dismissed with prejudice a criminal case during the trial on the ground that the DOJ attorney failed to provide defense counsel with Brady and Jencks Act material. The materials not disclosed included inconsistent witness statements and annotations written by witnesses on FBI 302s.

OPR conducted an investigation and learned that the a mistrial had previously been declared in the case because of other discovery violations, and that this should have put the DOJ attorney on notice that he had to be thorough in complying with his discovery obligations, and that he should consult with supervisors as issues arose. OPR concluded that the attorney’s handling of discovery following the first mistrial and culminating with the dismissal constituted professional misconduct in reckless disregard of his discovery obligations. OPR did not recommend a range of discipline because the attorney had already left the Department at the time OPR completed its investigation. OPR did not refer its finding of professional misconduct to the appropriate state bar authorities because those authorities had already completed their investigation and disposition of the matter.

15. Misrepresentations to the Court. A court of appeals criticized a DOJ attorney for allegedly misrepresenting to the jury the terms of a civil consent injunction entered into between the defendant and a government regulatory agency.

OPR conducted an investigation and found that, after an injunction was entered, the defendant was indicted for mail fraud, interstate transportation of stolen securities, and money laundering. The indictment charged that the defendant and others defrauded investors by a number of means, including concealing and failing to disclose to investors the fact of the prior injunction. The DOJ attorney who was the subject of the appellate court’s criticism was a “second chair” during the first criminal trial at which the defendant was convicted. The defendant did not challenge the government’s interpretation of the injunction during the first trial or the subsequent appeal. On the first appeal, the conviction was vacated on grounds unrelated to the issues considered by OPR.

On remand, the DOJ attorney assumed primary litigation responsibility for the case. The defendant was again convicted, but on appeal from the second trial and conviction, the defendant argued, for the first time, that the government had incorrectly characterized the prior civil injunction. The court of appeals upheld the conviction but criticized the DOJ attorney’s characterization of the injunction.

OPR concluded that the DOJ attorney did not engage in professional misconduct or exercise poor judgment. Both sides had access to the terms of the injunction, and the defendant did not contest the government’s characterization during either of two trials or during his first appeal. In these circumstances, OPR found there was no reason during the second trial for the DOJ attorney to change the government’s interpretation of the injunction, and that the DOJ attorney acted appropriately under the circumstances.

16. Improper Opening Statement. A court of appeals ruled that a DOJ attorney’s opening statement in a criminal prosecution, in which the attorney posed a series of rhetorical questions asking whether the jurors had ever been in a situation similar to the victim, was improper. The appellate court, however, found that the DOJ attorney’s remarks resulted in minimal prejudice to the defense and affirmed the conviction. OPR conducted an investigation and concluded that the DOJ attorney did not commit professional misconduct. OPR noted that the case was the DOJ attorney’s first criminal trial and that the attorney was prosecuting a crime under a unique statutory scheme. OPR found, instead, that the attorney exercised poor judgment in posing the rhetorical questions.

OPR referred its finding of poor judgment to the attorney’s employing component for consideration in a management context.

17. Improper Closing Argument. A court of appeals criticized DOJ attorneys for making improper comments during their closing and rebuttal arguments in a drug smuggling and distribution case. Although the court characterized several of the remarks as highly improper, it did not reverse the convictions. OPR conducted an investigation and found that the remarks at issue were supported by the evidence and were not intended to inflame the jury’s emotions. OPR therefore concluded that the DOJ attorneys did not engage in professional misconduct or exercise poor judgment in the matter, but rather acted appropriately under the circumstances. Because of the severity of the circuit court’s criticism of the attorneys’ comments and, more generally, of what the circuit court characterized as an ongoing pattern of improper argument in that district, OPR recommended that the litigating component consider providing additional training regarding the bounds of proper advocacy in closing and rebuttal argument.

18. Abuse of Authority. A private attorney requested that OPR investigate a press release issued by a DOJ attorney announcing a criminal investigation into the circumstances surrounding the dismissal of state charges against his client. The attorney alleged that the press release implied that the dismissal of state charges was the product of corrupt political favoritism. The attorney further alleged that the timing of the press release – shortly before a general election – served to benefit a friend of the DOJ attorney’s who was running for state office against his client.

OPR conducted an investigation and concluded that the DOJ attorney violated his duty to refrain from making public comment on an ongoing investigation unless necessary to serve a legitimate law enforcement purpose; his duty to refrain from participating in a matter that directly affected the interests of a personal friend and political ally; and his duty to refrain from taking action that would interfere with or affect an election unless necessary to serve a legitimate law enforcement purpose. OPR concluded further that the DOJ attorney abused his authority and violated the public trust by announcing the initiation of a criminal investigation against elected state officials without having any evidence of wrongdoing, and without conducting any investigation.

The DOJ attorney resigned from the Department prior to any action being taken on OPR’s findings. OPR did not refer its findings of professional misconduct to the appropriate state bar authorities because the conduct involved violations of internal DOJ obligations and policies and did not implicate a bar rule.

19. Misconduct Relating to the Charging Document; Abuse of the Grand Jury. A district court awarded attorneys’ fees and costs to a defendant whose case was dismissed voluntarily by the government after a magistrate judge recommended suppression of all evidence obtained through state court authorized electronic interceptions on the ground that the state law enforcement agents had engaged in misconduct. The government conceded liability under the Hyde Amendment.

OPR conducted an investigation and concluded that the prosecution was not vexatious, frivolous, or undertaken in bad faith. However, OPR concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligation to refrain from including in the indictment inflammatory and prejudicial information that was not sufficiently reliable or relevant to warrant inclusion. OPR also concluded that the attorney, in extensive colloquies with the grand jury, committed professional misconduct by acting in reckless disregard of her obligation to refrain from inflaming the grand jury against the subjects of the grand jury investigation.

The DOJ attorney received a two-day suspension. OPR referred its finding of professional misconduct to the appropriate state bar authorities, who had already become aware of the matter and had requested information from OPR.

20. Unauthorized Disclosure of Information. OPR received an allegation that a DOJ attorney leaked sensitive investigative information to the attorney’s spouse, who in turn allegedly revealed the existence of the ongoing investigation to a person supposedly implicated by the investigation.

OPR conducted an investigation and learned that the underlying criminal investigation consisted solely of a series of unproductive consensually monitored conversations and that the litigating office had not even opened a file on the case. The DOJ attorney denied leaking the information, his spouse denied receiving or disseminating the information, and OPR did not develop sufficient evidence to undermine those claims. OPR noted that the DOJ attorney’s role in the investigation was limited, and that the DOJ attorney had no discernible motive for disclosing the information. Accordingly, OPR concluded that the allegation against the DOJ attorney was not supported by the evidence.

21. Discovery Violation. A district court granted a new trial in a criminal case on the ground that the DOJ attorney who prosecuted the case failed to disclose to defense counsel several items that constituted exculpatory or impeachment evidence.

OPR conducted an investigation and found that the DOJ attorney did not commit professional misconduct, but rather exercised poor judgment by failing to disclose to defense counsel the criminal history of a government witness. The witness had been acquitted of making a false report to a police officer and received a deferred adjudication for misdemeanor theft by check. Although it was arguable that neither of those items was admissible to impeach the testimony of the witness, OPR concluded that the DOJ attorney exercised poor judgment by failing to disclose the terms, instead of disclosing them and then arguing against their admissibility. OPR also concluded that the DOJ attorney acted appropriately in not disclosing to defense counsel a statement in an internal prosecution memorandum that appeared to contradict the testimony of a government witness and a statement by a witness who was interviewed but did not testify.

OPR referred its finding of poor judgment to the attorney’s employing component for consideration in a management context. The DOJ attorney received training concerning discovery obligations.

22. Candor to the Court. A district court found that a government declaration offered in support of a motion for summary judgment in a civil lawsuit against the government was false and was submitted in bad faith. The court sanctioned the government by ordering it to pay the fees and costs the plaintiffs incurred in opposing the declaration. The court did not make any specific findings of misconduct by DOJ attorneys. OPR conducted an investigation and found that the government attorneys involved in the drafting and filing of the declaration and motion for summary judgment did not commit professional misconduct or exercise poor judgment in this matter. OPR found that the declaration was not false and that the DOJ attorneys were not aware of any conflicting evidence at the time they drafted the declaration.

23. Speedy Trial Act Violation. A district court dismissed with prejudice the charges against several defendants on the ground that the government violated the Speedy Trial Act. The dismissal came more than one year after the defendants were indicted, a delay of such length that the government did not even calculate the number of days by which the Speedy Trial Act was violated. In its decision, the district court noted a pattern of inattention in the DOJ attorney’s handling of the case.

OPR conducted an investigation and concluded that the DOJ attorney neglected the prosecution knowing that the natural or probable consequence of her actions would be the dismissal of the case with prejudice. The DOJ attorney hoped that defense counsel would enter into plea agreements, but when that process broke down, the DOJ attorney failed to take any steps to ensure that she complied with the Speedy Trial Act. OPR concluded that the DOJ attorney committed intentional professional misconduct by knowingly violating the Speedy Trial Act, and by knowingly violating her obligation to comply with court orders and to represent the government competently and diligently.

The DOJ attorney received a five-day suspension, which took into consideration a separate finding of professional misconduct against the DOJ attorney in a separate matter. OPR referred its findings of professional misconduct to the appropriate state bar authorities.

24. Intentional Failure to Comply with Court Order. A litigating component referred to OPR allegations that DOJ attorneys had failed to comply with Rule 11 of the Federal Rules of Civil Procedure because they did not make a reasonable inquiry to ensure that there was an evidentiary basis for the factual contentions in a filing (drafted by agency counsel) before the DOJ attorneys signed and filed it.

OPR conducted an investigation and concluded that the DOJ attorneys did not commit professional misconduct or exercise poor judgment in their review and signing of the filing. However, OPR referred the matter to the Executive Office for United States Attorneys (EOUSA) so that EOUSA could ensure that DOJ attorneys nationwide who handled cases on behalf of government agencies were aware of, and were complying with, their obligations under Rule11.

OPR Inquiries in Fiscal Year 2004

Characteristics of Inquiries Opened in Fiscal Year 2004: The sources of the 246 matters designated as inquiries are set forth in Table 3. As noted above, twenty-five of these matters were later converted to full investigations. The nature of the 305 allegations contained in those inquiries is set forth in Table 4.

TABLE 3

Sources of Complaints in Inquiries
Opened in FY 2004

Source Complaints Leading to Inquiries Percentage of All Inquiries

Judicial opinions & referrals 8

30

12.2%

Private attorneys

47

19.1%

Department components

79

32.1%

Private parties

42

17.1%

Other agencies

19

7.7%

Other sources

29

11.8%

Total

246

100.0%

TABLE 4

Misconduct Allegations in Inquiries Opened
in Fiscal Year 2004, by Type of Allegation

Type of Allegation Allegations in Inquiries Percentage of All Allegations in Inquiries

Abuse of authority, including abuse of prosecutorial discretion

85

27.9%

Improper remarks to a grand jury, during trial, or in pleadings

13

4.2%

Misrepresentation to the court and/or opposing counsel

13

4.2%

Unauthorized disclosure of information, including grand jury information protected by Rule 6(e), Fed. R. Crim. P.

49

16.1%

Failure to perform/dereliction of duty

17

5.6%

Failure to comply with Brady, Giglio, or Rule 16 discovery

17

5.6%

Failure to comply with court orders or federal rules

3

1.0%

Conflict of interest

11

3.6%

Failure to comply with DOJ rules and regulations

34

11.1%

Subornation of perjury/failure to correct false testimony

7

2.3%

Interference with defendant’s rights

3

1.0%

Lateness (i.e., missed filing dates)

5

1.6%

Lack of fitness to practice law

15

4.9%

Improper contact with represented party

6

2.0%

Failure to comply with congressional requests, including subpoenas

0

0.0%

Unauthorized practice of law

2

0.7%

Other 9

25

8.2%

Total

305

100.0%

The matters opened as “inquiries” during fiscal year 2004 were remarkably diverse. Many of those matters did not involve a complaint against a Department attorney. For example, some inquiries were 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 involved 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 2004: OPR closed a total of 320 inquiries in fiscal year 2004. Fifty of those matters involved the conduct of non-DOJ attorneys. Twenty-five of the 320 inquiries were converted to full investigations after evidence was developed that further investigation was required; 263 matters were closed because OPR concluded that the allegations were without merit or that further investigation was unlikely to result in a finding that the attorney(s) engaged in professional misconduct. An additional thirty-two 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 rather than professional misconduct issues, to findings that the matters had already been resolved by other Department of Justice components.

The manner in which the allegations were resolved as inquiries in fiscal year 2004 is set forth in Table 5.

TABLE 5

Outcome of Categories of Inquiries Resolved
in Fiscal Year 2004

Type of Resolution Number of Occurrences Percentage of Total

Referred. More appropriately handled by another component or agency.

32

10.1%

Issues previously addressed. No further action required by OPR at this time.

7

2.2%

No merit to allegation based on review of matter.

108

33.9%

Consolidated with already open miscellaneous matter, inquiry, or investigation.

3

1.0%

Converted to an investigation.

40

12.6%

FBI or DEA matter - resolved administratively.

11

3.5%

Inquiry completed; further inquiry not likely to result in finding of misconduct.

56

17.6%

Matter being monitored.

9

2.8%

FBI Whistleblower Claim.

8

2.5%

Other

38

11.9%

Total

360

100.0%

Examples of Inquiries Closed in Fiscal Year 2004

1. Unauthorized Disclosure; Misrepresentation to the Court. OPR received allegations from a private attorney that a DOJ attorney violated Department policies concerning public identification of uncharged parties, and that the DOJ attorney made and failed to correct false factual and legal statements in a charging document filed with the court. OPR initiated an inquiry and found that the uncharged parties were not identified by name, but rather, were described in the information in generic terms in a manner consistent with Department policy. OPR noted that the complainant declined the court’s invitation to pursue the allegation. OPR closed the matter because further investigation was not likely to result in a professional misconduct finding.

2. Subornation of Perjury; Misrepresentation to the Court; Falsification of Records. OPR received a complaint from a private individual alleging that several DOJ attorneys and an FBI Special Agent fabricated evidence, made false reports, suborned perjury, and committed theft in connection with a search warrant executed at the complainant’s residence. The complainant had been the subject of an FBI investigation for planting out-of-date and spoiled products in stores to support his demands for money in lawsuits he filed against the stores. The FBI obtained evidence, including surveillance tapes, of the complainant’s activities, obtained a search warrant and conducted a search of the complainant’s home, and seized evidence of the product tampering.

The complainant refused to communicate with OPR regarding his complaint, and provided no documentation or other evidence that supported his claims. OPR found that the search warrants were validly issued by a federal district court and appeared to be based on probable cause. There was no evidence that the DOJ attorneys or the FBI Special Agent fabricated the affidavits. Because further investigation was unlikely to result in a professional misconduct finding, OPR closed the matter.

3. Unauthorized Practice of Law. OPR received an allegation that a Special Assistant U.S. Attorney (SAUSA) had represented a government agency in court for several years even though her state license had been suspended years earlier for failing to comply with continuing legal education requirements. The SAUSA had signed certifications to the Department on three occasions representing falsely that she was licensed and eligible to practice law. The SAUSA resigned her appointment, but was criminally prosecuted for violations under 18 U.S.C. § 1001 (false statements). After the former SAUSA pleaded guilty, OPR referred the matter to state bar authorities of the bar from which the SAUSA had been suspended.

4. Abuse of Prosecutive Authority; Unauthorized Disclosure of Classification Information. OPR received allegations from a private individual that a DOJ attorney improperly refused to prosecute his allegations that government employees had engaged in criminal misconduct, and that the DOJ attorney leaked information to a private attorney. The complainant did not provide any concrete evidence to support his allegations, and OPR’s inquiry found no evidence of any improper disclosure of information. OPR noted that DOJ attorneys are vested with broad discretionary authority to determine whether and how to pursue criminal investigations and prosecutions, and that there was no evidence in this case suggesting that the discretion was corruptly, or otherwise inappropriately, exercised. Because further investigation was unlikely to result in a professional misconduct finding, the matter was closed.

5. Unprofessional Statements. A state prosecutor complained to OPR that a DOJ attorney had threatened to bring criminal charges against an assistant prosecutor in his office. OPR initiated an inquiry, and found that the facts did not support a claim of professional misconduct against the DOJ attorney. The assistant prosecutor had attempted to interview government witnesses in a pending federal criminal case for the apparent purpose of undermining the federal prosecution. OPR closed the matter because further investigation was not likely to result in a professional misconduct finding.

6. FBI Whistleblower Complaint. OPR received an allegation from an FBI Special Agent that he was targeted for inspection by the FBI Inspections Division, and was subsequently involuntarily transferred and given a poor performance report, in retaliation for his complaint about the management of his field office. OPR initiated an inquiry and found no reasonable grounds to conclude that the complainant’s transfer constituted a reprisal by FBI management for his protected disclosures. In addition, OPR concluded that neither the inspection nor the poor performance report, which was actually an interim progress report, were "personnel actions" covered under the Whistleblower Protection Act.

7. Approval of Warrant Application Not Supported by Probable Cause. A private attorney alleged to OPR that FBI and DEA Special Agents had improperly executed a search warrant of a business; that the search warrant was not supported by probable cause; and that a DOJ attorney allowed agents to review attorney-client privileged documents seized in the search. Because no DOJ attorney was present or oversaw the execution of the search, OPR referred to FBI/OPR and DEA/OPR the allegation that the agents improperly held business patrons and employees for hours while brandishing weapons. OPR initiated an inquiry into the allegations against the DOJ attorney and found that the agents’ review of privileged documents had been brought to the attention of the magistrate judge assigned to the case and the magistrate judge made no finding of professional misconduct. OPR generally does not conduct inquiries into allegations that have been considered and rejected by a court. Accordingly, OPR closed the matter because further investigation was unlikely to result in a professional misconduct finding.

8. Abuse of Prosecutive Authority; Conflict of Interest. An inmate serving a sentence for fraud alleged to OPR that a DOJ attorney participated in the grand jury investigation of a matter while simultaneously serving on a state bar grievance committee investigating the inmate’s co-defendant, an attorney. The district court held an evidentiary hearing on the matter and rejected the defendant’s claim. The matter was again raised on appeal and rejected by the circuit court. OPR generally refrains from investigating issues or allegations that were addressed and rejected by a court. Accordingly, OPR closed this matter because further investigation was not likely to result in a professional misconduct finding.

9. Abuse of the Indictment Process. The wife of a police officer who was indicted on corruption charges alleged that there was insufficient evidence to charge her husband and that the government improperly reported that her husband had agreed to pretrial diversion to resolve the charges. OPR initiated an inquiry and reviewed the evidentiary materials related to the indictment of the officer. OPR determined that there was sufficient evidence to support the indictment and that the police officer did agree to pretrial diversion. Consequently, OPR closed the matter because further investigation was unlikely to result in a professional misconduct finding.

10. Failure to Maintain Active Bar Membership. A DOJ attorney’s bar membership lapsed when the attorney was suspended for failure to pay annual dues for an eight-day period. The DOJ attorney explained that he had forgotten to send a change-of-address form to the state bar when he came to the Department from private practice and that his former law firm did not forward to him state bar materials, including his annual bar dues statements, until he was already in arrears. The DOJ attorney took immediate steps to pay his annual dues and was reinstated four days after he first received notice. OPR found that the lapse in the attorney’s bar membership arose because of his inadvertent failure to provide his new address to the bar, as well as the failure by his former firm to forward his mail expeditiously. OPR closed this matter because further investigation was not likely to result in a professional misconduct finding.

11. Abuse of Authority. OPR received allegations from a private attorney that an Immigration Judge treated him and his clients unfairly. OPR initiated an inquiry and found that the allegations were without merit. OPR found that the private attorney engaged in numerous delaying tactics such as filing several dubious, last-minute motions to continue. OPR found that the Immigration Judge acted within her discretion in denying the motions, and closed the matter because further investigation was unlikely to result in a professional misconduct finding.

12. Failure to Comply with DOJ Rules and Regulations. OPR received allegations from a private citizen that a DOJ attorney compromised his office’s objectivity by publicly associating with an allegedly corrupt politician, and that another DOJ attorney had violated ethical rules by asking a state legislator to support a nominee for state office. OPR initiated an inquiry and found that the complainant’s allegations were speculative, that there was no evidence to suggest that the politician was under investigation at the time the DOJ attorney socialized with him, and that there was no evidence that the other DOJ attorney used or attempted to use his official position to advance the nominee’s appointment. OPR closed the matter because further investigation was not likely to result in a professional misconduct finding.

13. Abuse of Authority. OPR received an allegation that a DOJ attorney unlawfully converted to her own or to someone else’s personal use the proceeds from a vehicle seized from the complainant by law enforcement agents. After reviewing the evidence submitted by the complainant, OPR determined that there was an insufficient basis to warrant initiating an investigation into the conversion allegation. OPR informed the complainant’s attorney that it was closing its file but invited the attorney to provide any additional information that might substantiate the allegation. The attorney did not thereafter contact OPR; consequently, OPR did not revisit its decision to close the matter on the ground that further investigation was not likely to result in a professional misconduct finding.

14. Unauthorized Disclosure. OPR received an allegation from a private attorney that unnamed DOJ attorneys released an affidavit to the media that had been filed under seal in order to generate negative publicity about a criminal defendant. OPR initiated an inquiry and found that the defendant’s attorneys repeatedly requested that the affidavit be unsealed, that the DOJ attorneys shared a courtesy copy of a motion to unseal the affidavit with one of the defendant’s attorneys before the motion was filed, and that the defense attorney supported the motion. OPR also found that the court’s order unsealing the affidavit directed the Department to provide a redacted copy of the affidavit to the defendant’s attorneys and to the clerk of the court for placement in the court’s public file, from which the media likely obtained it. OPR closed the matter, finding that further investigation was not likely to result in a professional misconduct finding.

15. Failure to Comply with DOJ Rules and Regulations (Petite Policy). An inmate alleged that a DOJ attorney prosecuted him after identical state court charges against him were dismissed, in violation of the Department’s Petite policy. The inmate claimed that the first state court case ended with a mistrial, and a second state prosecution was dismissed because the state prosecutor failed to disclose evidence to the defense. OPR initiated an inquiry and found that the inmate had been charged under state law with billing Medicaid for transportation services that were not provided. The first trial ended in mistrial because of a discovery violation, and the state voluntarily dismissed a second case and referred the matter to the Department. A federal grand jury returned a multi-count indictment, and a trial resulted in conviction. OPR determined that the Petite policy did not apply to the federal prosecution because the state proceedings did not constitute a decision on the merits. Consequently, OPR closed the matter because further investigation was not likely to result in a professional misconduct finding.

16. FBI Whistleblower Complaint. OPR received allegations from a former FBI Special Agent that his former supervisor retaliated against him for reporting misconduct to FBI/OPR. OPR found that the allegedly retaliatory action occurred before the complainant contacted FBI/OPR. Under the regulations governing FBI whistleblowers, OPR concluded that the former Special Agent did not present a cognizable claim of retaliation, and it declined further investigation.

17. Unauthorized Disclosure of Tax Information. The Office of the Inspector General (OIG) referred to OPR a letter from an attorney alleging that a DOJ attorney made an unauthorized disclosure of taxpayer information when she disclosed to the attorney information from his client’s individual income tax returns for inclusion in a joint pre-trial order. OPR initiated an inquiry and found that the tax information fell squarely within the information authorized to be released pursuant to 26 U.S.C. § 6103(h)(4) because it was directly related to the litigation. OPR closed the matter because further investigation was not likely to result in a professional misconduct finding.

18. False Statements, Misrepresentation. OPR received an allegation from a former federal law enforcement agent that two DOJ attorneys included false statements in an internal memorandum discussing a case in which the agent had been involved. OPR initiated an inquiry and found that the DOJ attorneys had not made false statements in the memorandum. OPR closed the matter because further investigation was not likely to result in a professional misconduct finding.

19. Contempt of Court. OPR received an allegation that a DOJ attorney was reprimanded by a district court for being disrespectful to the judge during a court proceeding. OPR initiated an inquiry and found that the DOJ attorney’s conduct did not raise questions of professional responsibility, but should be addressed as a performance matter. OPR referred the matter to the DOJ attorney’s employing component for consideration in a management context.

Conclusion

During fiscal year 2004, Department attorneys continued to perform their duties in accordance with the high professional standards expected of the nation’s principal law enforcement agency. OPR participated in numerous educational and training activities both within and outside the Department, and continued to serve as the Department’s liaison with state bar counsel. OPR also expanded its Rapid Response Team, thus enhancing OPR’s ability to respond quickly and effectively to misconduct allegations that arise in matters of particular importance to the Department. On the international front, OPR met with delegations or representatives of foreign countries to discuss issues of prosecutorial ethics. OPR’s activities in fiscal year 2004 have increased awareness of ethical standards and responsibilities throughout the Department of Justice and abroad, 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.


FootNote

1. This category includes self-reporting by Department employees of serious judicial criticism and judicial findings of misconduct.

2. Such matters include allegations of retaliation, fraud, and theft.

3. 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.

4. 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.

5. 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.

6. OPR finds that an attorney has made a mistake when the attorney’s conduct constituted excusable human error despite the exercise of reasonable care under the circumstances.

7. 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 female pronouns in odd numbered examples and male pronouns in even numbered examples regardless of the actual gender of the individual involved.

8. This category includes self-reporting by Department employees and officials of judicial criticism and judicial findings of misconduct.

9.

Updated February 5, 2015