U.S. Department of Justice
Office of Professional Responsibility
Fiscal Year 2000 Annual Report
Significant Initiatives in Fiscal Year 2000
Statistical Summary of OPR Activities in Fiscal Year 2000
Characteristics of Matters Opened as Inquiries in Fiscal Year 2000
Characteristics of Investigations Opened in Fiscal Year 2000
Investigations Closed in Fiscal Year 2000
Examples of Matters Investigated by OPR Fiscal Year 2000
Table 1. Sources of Complaints in Inquiries Opened in FY 2000
Table 2. Misconduct Allegations in Inquiries Opened in FY 2000, by Type of Allegation.
Table 3. Sources of Complaints in Investigations Opened in FY 2000
Table 4. Misconduct Allegations in Investigations Opened in FY 2000, by Type of Allegation
The Office of Professional Responsibility (OPR) was established in the Department of Justice by order of the Attorney General dated December 9, 1975, in order to ensure that Department employees perform their duties in accordance with the professional standards expected of the nation's principal law enforcement agency. Pursuant to 28 C.F.R. Â§0.39a(i)(3), the head of the Office, the Counsel on Professional Responsibility, is required to submit an annual report reviewing and evaluating the internal inspections units in the components of the Department. This is the Office's twenty-fifth annual report to the Attorney General, and it covers fiscal year 2000 (October 1, 1999 - September 30, 2000).
OPR has jurisdiction to investigate allegations of professional misconduct by 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.
OPR reports the results of its investigations to 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 that official must obtain the approval of the Office of the Deputy Attorney General prior for departing from the recommended range.
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 or not the summary should be released, to the Office of the Deputy Attorney General for its consideration. The final determination on whether to disclose publicly a summary of the results of an OPR investigation is made by the Attorney General.
During fiscal year 2000, OPR was also responsible for overseeing on behalf of the Attorney General the operations of the Offices of Professional Responsibility in the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA). Those offices have jurisdiction over the investigation of misconduct allegations against employees of the FBI and DEA, respectively. OPR monitored the investigative and other activities of these offices through the receipt of contemporaneous reports, monthly reports, and frequent communication with FBI and DEA internal investigative unit personnel. In July 2001, the Attorney General placed those internal inspection units under the oversight of the Office of the Inspector General. (1)
During fiscal year 2000, as part of a pilot program, 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. (2) 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.
One subject attorney challenged the procedures developed by OPR and sought to enjoin the proposed review proceedings. In an unpublished decision, the U.S. District Court for the District of Columbia denied the injunction and held that OPR's procedures were consistent with due process. The pilot program under which such review proceedings were offered was not extended due to lack of resources.
The Office of Professional Responsibility participates in educational and training activities both within and outside the Department of Justice in order to increase awareness among Department attorneys of the ethical obligations imposed by statutes, court decisions, regulations, Department policies, and bar rules. During fiscal year 2000, OPR attorneys made presentations on the work of the Office to the annual conferences of the Criminal Chiefs, Civil Chiefs, and First Assistants of the United States Attorneys' Offices. OPR also identified actual case examples for possible use by the Office of Legal Education in developing training materials on improper argument and on the issues most commonly involved in complaints against Department attorneys. (3)
During the fiscal year, OPR also participated in non-investigative, policy and project-oriented activities of the Department. In response to increased numbers of misconduct allegations against Immigration Judges, OPR worked with the Executive Office for Immigration Review (EOIR) to create a manual on the ethical obligations applicable to Immigration Judges, members of the Board of Immigration Appeals, and Administrative Law Judges employed by EOIR. The manual was approved by the Attorney General for distribution on January 17, 2001, and distributed to those employees by the Director, Executive Office for Immigration Review, in April 2001. In addition, OPR has participated in, and continues to be a member of, a working group whose mission is to draft regulations to govern the contempt authority Congress granted to Immigration Judges.
OPR made significant internal information technology improvements during fiscal year 2000 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.
Between January and July 2000, the General Accounting Office (GAO) conducted an examination of OPR's policies and practices, including the Office's handling of its responsibilities under the Hyde Amendment and the Citizens Protection Act. (4) GAO auditors also evaluated the extent to which OPR had implemented recommendations made in prior GAO reports, reviewed a large amount of statistical information extracted from OPR's automated case tracking system, and examined several actual investigative files in detail. On August 14, 2000, GAO released a report entitled "Department of Justice: Information on the Office of Professional Responsibility," which contained no adverse findings or recommendations requiring corrective action. (5) Based on a congressional request for follow-up information on OPR's operations, the GAO auditors performed a further review of OPR between September and November 2000. Thereafter, GAO issued a January 19, 2001 letter providing detailed factual information on each issue. The GAO letter, like the earlier report, contained no adverse findings or recommendations.
On February 20, 2001, the House of Representatives Committee on the Judiciary directed additional questions to OPR regarding the Department's policies of notifying state bar disciplinary authorities of matters in which OPR found intentional professional misconduct, the extent to which the Department monitors actions taken by the bar in such matters, and several instances in which the Department negotiated settlements resulting in the resignations of attorneys found to have engaged in professional misconduct. Based upon information provided by OPR, the Department responded to those questions in a letter dated June 1, 2001. That letter announced the Department's adoption of a revised bar notification policy, requiring notification of the relevant state bar disciplinary authorities whenever OPR concludes, and the Department affirms, that a Department attorney engaged in professional misconduct, whether through intentional action or through reckless disregard of a professional standard or obligation. (6)
Intake and Initial Evaluation of Complaints. In fiscal year 2000, OPR received 992 complaints and other letters and memoranda requesting assistance. Nearly two-thirds of those complaints 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 which had already been decided by a court, or simply requested information. These 698 matters were addressed by experienced management analysts through correspondence or referral to another appropriate government agency or Department of Justice component. Pursuant to OPR policy, a supervisory OPR attorney reviewed all such dispositions of allegations against DOJ attorneys.
The remaining 294 matters were found to contain allegations of possible professional misconduct against Department of Justice attorneys warranting further examination by OPR, or otherwise to require review by an OPR attorney. Such matters are termed "inquiries" by OPR.
Characteristics of Matters Opened as Inquiries in Fiscal Year 2000: The expanded data tracking capability that OPR put in place in the third quarter of fiscal year 1999 enabled OPR to capture previously unavailable information about matters designated as "inquiries," including the source of the matter and the nature of the allegations involved. The sources of these matters are set forth in Table 1. The nature of the 437 allegations contained in those 294 inquiries is set forth in Table 2, below.
| Sources of Complaints in Inquiries
Opened in FY 2000
|Source||Complaints Leading to Inquiries||Percentage of All Inquiries|
|Judicial opinions & referrals||
|Department components (7)||199||67.8%|
| Misconduct Allegations in Inquiries Opened by OPR
in Fiscal Year 2000, by Type of Allegation
|Type of Allegation||Inquiries Opened||Percentage of All Allegations in Inquiries|
|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||
In inquiries relating to allegations of misconduct by a Department attorney, the OPR attorney normally notifies the subject of the allegation and requests a written response to it. On the basis of the written response and/or other research and analysis, the assigned OPR attorney may determine that the matter warrants no further inquiry and close the matter. Alternatively, he or she may recommend that the matter be converted to a full investigation.
Review of this data compels the conclusion that the matters opened as "inquiries" during fiscal year 2000 were remarkably diverse. While an allegation code is 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 agents, and on memoranda memorializing prosecutive advice given by OPR attorneys in connection with matters under investigation by the FBI Office of Professional Responsibility (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.
Characteristics of Investigations Opened in Fiscal Year 2000: OPR may designate a matter as an "investigation" immediately upon receipt, based upon its source and nature, or after an initial inquiry indicates the need for interviews and additional fact gathering. Matters initially designated as investigations include, for example, judicial findings of professional misconduct by a Department attorney and cases involving serious judicial criticism.
OPR investigations opened in fiscal year 2000 were based on complaints from a variety of sources, as reflected in Table 3, below.
|Sources of Complaints in Investigations Opened in FY 2000|
|Source||Complaints Leading to Investigations||Percentage of All Investigations|
|Judicial opinions & referrals||55||61.8%|
|Department components (9)||22||24.7%|
OPR opened a total of eighty-nine new investigations in fiscal year 2000. These 89 investigations involved 136 separate allegations of misconduct. The subject matter of the 136 allegations is set out in Table 4, below.
|Misconduct Allegations in Investigations Opened by OPR
in Fiscal Year 2000, by Type of Allegation
|Type of Allegation||Investigations Opened in FY 2000||Percentage of All Allegations in Investigations|
|Abuse of authority, including abuse of prosecutorial discretion||31||22.8%|
|Improper remarks to a grand jury, during trial or in pleadings||22||16.2%|
|Misrepresentation to the court and/or opposing counsel||15||11.0%|
|Unauthorized disclosure of confidential information, including grand jury information protected by Rule 6(e), Fed. R. Crim. P.||10||7.4%|
|Failure to perform/dereliction of duty||6||4.4%|
|Failure to comply with Brady, Giglio or Rule 16 discovery||17||12.5%|
|Failure to comply with court orders or federal rules||8||5.9%|
|Conflict of interest||2||1.5%|
|Failure to comply with DOJ rules and regulations||9||6.6%|
|Subornation of perjury/failure to correct false testimony||4||2.9%|
|Interference with defendant's rights||2||1.5%|
|Lateness (i.e., missed filing dates)||0||0.0%|
|Lack of fitness to practice law||5||3.7%|
|Improper contact with represented party||4||2.9%|
|Failure to comply with Congressional discovery requests, including subpoenas||0||0.0%|
|Unauthorized practice of law||1||0.7%|
Investigations Closed in Fiscal Year 2000: OPR closed a total of 78 investigations in fiscal year 2000, one of which involved an allegation of whistleblower retaliation made by an FBI agent against a non-attorney. Of the 77 investigations involving attorney subjects that were closed during the fiscal year, OPR found professional misconduct in 12 or nearly 16% of the matters. Four of these matters involved at least one finding of intentional professional misconduct by a Department attorney. (11) In the remaining eight matters, which involved nine attorney subjects, the findings of professional misconduct were based upon OPR's conclusion that the attorney had recklessly disregarded an applicable obligation or standard. (12) 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, was comparable to the analogous figures in fiscal year 1999. (13)
Disciplinary action was initiated against 11 of the 13 attorneys found by OPR to have engaged in professional misconduct. The remaining two attorneys resigned from the Department prior to the initiation of disciplinary action. Of the 11 attorneys against whom disciplinary action was proposed, two received proposed removals letters, one of which remains pending, and one of which was withdrawn when the attorney retired; four were suspended without pay for periods between three and fourteen days; two received written reprimands; and three received oral admonishments.
In addition to the twelve matters in which OPR made a finding of professional misconduct, the Office closed sixteen matters involving at least one finding that an attorney had exercised poor judgment.
Examples of Matters Investigated by OPR in Fiscal Year 2000 (14)
1. Improper Closing Argument. A court of appeals criticized a DOJ attorney for referring to in closing argument and displaying to the jury a photograph that had not been admitted into evidence. OPR conducted an investigation and concluded that the DOJ attorney engaged in professional misconduct. OPR found that the attorney acted in reckless disregard of the fundamental rule that argument must be confined to the facts in evidence. OPR found further that the attorney's reference to the photograph constituted impermissible vouching for the credibility of a government witness. No discipline was imposed because the attorney was no longer employed by the Department.
2. Overzealous Prosecution; Failure to Comply with DOJ Regulations; Abuse of Subpoena Power. OPR received allegations that a DOJ attorney violated the Department's policies regarding the issuance of subpoenas to the media, and that the attorney initiated the underlying prosecution even though he knew that the government would be unable to prove its case.
OPR conducted an investigation and found that the allegations about the subpoena and the merits of the prosecution were unfounded. In addition, OPR investigated whether the attorney violated Fed. R. Crim. P. 17 (Rule 17) by issuing a subpoena to a defense expert witness which compelled the witness to produce reports and memoranda supporting his opinion in favor of the defense theory of the case. OPR concluded that the attorney did not commit professional misconduct or exercise poor judgment by issuing the subpoena for reports and memoranda because there was no clear, controlling law regarding Rule 17 in the circuit. OPR concluded that, in those circumstances, the attorney's interpretation of the rule was not unreasonable.
3. Improper Introduction of Inflammatory Evidence. A court of appeals reversed a conviction on the ground that a DOJ attorney introduced inflammatory and irrelevant evidence that the defendant had physically abused his spouse. OPR conducted an investigation and found that the prosecutor had not planned to use the evidence of spousal abuse until the defense appeared to open the door to the evidence, and the district court allowed the evidence over the defendant's objection.
OPR concluded that the introduction of the evidence was not appropriate, but that such a misstep in the midst of a heated trial did not constitute professional misconduct. OPR concluded further that the prosecutor exercised poor judgment by introducing the evidence of the defendant's spousal abuse. OPR referred this finding of poor judgment to the DOJ attorney's employing component for consideration in a management context. (15) The attorney was counseled and given additional training regarding trial evidence.
4. Prohibition Against Acting as Both a Witness and the Prosecutor. A court of appeals reversed a defendant's conviction on the ground that the DOJ attorney continued his role in prosecuting the case despite having personally found a critical piece of evidence in the middle of the trial. Although the attorney did not testify as a witness in the trial, the court of appeals held that the policies underlying both the advocate-witness rule and the rule against vouching were violated by the attorney's continued representation of the government after he found the piece of evidence.
OPR conducted an investigation and concluded that the attorney did not engage in professional misconduct or exercise poor judgment. OPR found that the circumstances giving rise to the prosecutor's personal involvement with the critical piece of evidence were unanticipated and occurred in the middle of trial and that the trial court ruled that the attorney could continue as the prosecutor after the defense objected. OPR found further that the attorney consulted with a supervisor and complied with the supervisor's directions to avoid becoming a witness. Nevertheless, OPR concluded that the attorney made a mistake by continuing to represent the government at the trial after he discovered an important piece of evidence. A summary of OPR's findings and conclusions was disclosed to bar disciplinary authorities at the bar's request.
5. Inaccurate Representation to the Court; Violations of Court Orders on Discovery. A district court dismissed a prosecution in which it questioned the accuracy of representations made by a DOJ attorney and found that the attorney violated court orders relating to discovery obligations. OPR conducted an investigation and concluded that the attorney engaged in professional misconduct. OPR found that the attorney did not intend to mislead the court, but that she repeatedly failed to address an issue the omission of which led to incomplete and inaccurate factual assertions. OPR found further that the attorney violated discovery deadlines and failed to produce documents that were responsive to specific discovery orders. The attorney received a reprimand. A summary of OPR's findings was disclosed to bar disciplinary officials at the bar's request.
6. Witness Intimidation. A court of appeals found that perjury warnings given by a DOJ attorney to the attorney for the defendant's common law wife substantially interfered with the wife's decision whether to testify on behalf of her husband, thereby depriving the defendant of his Sixth Amendment right to compulsory process. OPR conducted an investigation and found that the DOJ attorney's warnings were not intimidating because the DOJ attorney did not deal directly with the wife, only with her counsel, and the DOJ attorney was at all times professional and composed. OPR concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment.
7. Grand Jury Abuse. A DOJ attorney self-reported allegations of professional misconduct made against her concerning her conduct before the grand jury. The allegations, made in a defense motion to dismiss the indictment, stated that the attorney made statements before the grand jury which constituted improper adversarial argument, personal belief, and improper legal instruction. The government consented to a dismissal of the indictment with prejudice.
OPR conducted an investigation and concluded that the attorney committed professional misconduct by acting in reckless disregard of her duty before the grand jury to refrain from offering her personal opinion and to refrain from vouching for a witness's credibility. OPR found that the attorney's office failed to provide her with adequate training in federal grand jury practice.
The attorney received an admonishment and additional training. Her office also took steps to develop better training in grand jury practice for all of its prosecutors.
8. Improper In-Court Identification. A trial court found that a DOJ attorney perpetrated a fraud on the court by bringing two eyewitnesses into the courtroom during a pretrial hearing to permit them to view the defendant and thereby ensure their correct identification of the defendant at trial.
OPR conducted an investigation and found that the DOJ attorney did not know that the eye witnesses were in the courtroom, did not direct them to enter the courtroom, and did not intend for them to get a look at the defendant. OPR concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment in his handling of the witness identification hearing.
9. Personal Relationship with Grand Jury Witness; Late Court Filings. A Department official notified OPR that a DOJ attorney had missed the filing deadlines in two appellate matters within a few months, filing both briefs many weeks after the filing deadline. Thereafter, OPR was advised that the same attorney had begun dating a witness in a criminal investigation whose testimony the attorney had herself presented to the grand jury.
OPR conducted an investigation and concluded that the attorney engaged in professional misconduct by acting in reckless disregard of her obligation to comply with the filing deadline in the first case, and engaged in intentional misconduct in the second. OPR found that the attorney was aware of the filing deadlines for the government's briefs in the two appeals but failed to meet them because of personal problems. OPR found further that the attorney misled her supervisor by indicating, in response to inquiries, that she was current in all her assignments.
OPR also concluded that the attorney engaged in intentional professional misconduct by maintaining a personal relationship with the witness in an ongoing criminal investigation and by continuing to date the individual after being specifically instructed by supervisory officials to desist. The attorney retired after being advised that the Department would seek her termination. OPR notified bar disciplinary authorities of its finding of intentional professional misconduct.
10. Failure to Disclose Brady Material. A court of appeals reversed a conviction on the ground that a DOJ attorney failed to disclose to the defense three memoranda of interviews of witnesses, in violation of Brady v. Maryland. The court of appeals also ruled that the attorney violated Brady by presenting a government witness as a neutral expert, when the witness had assisted in investigating the government's case.
OPR conducted an investigation and concluded that the attorney did not commit professional misconduct. OPR found that the attorney did not violate Brady because the information contained in the three memoranda was available to the defense. OPR found further that the attorney did not err in failing to disclose that the government's expert witness had assisted in the investigation because that fact was known to the defendant, who had been interviewed by the witness.
11. Subornation of Perjury/Failure to Correct False Testimony . A district court granted a new trial to several defendants in a drug prosecution on the ground that the government engaged in prosecutorial misconduct by allowing false statements and false impressions of fact to pass to the jury uncorrected. The court found that a government witness gave false testimony at the trial and that the DOJ attorney prosecuting the case knew the testimony was false but did not alert the court or defense counsel to that situation.
OPR conducted an investigation and found that the testimony of the government witness, when viewed in context, was not false. OPR found that the witness was asked questions and gave answers that were ambiguous and that were not probed by defense counsel for more details. Accordingly, OPR concluded that the attorney acted appropriately in presenting the testimony of the witness.
12. Failure to Obtain Supervisory Approval for a Downward Departure. OPR received information of potential professional misconduct by a DOJ attorney in connection with the sentencing of a defendant. The attorney allegedly agreed at the sentencing hearing to the defendant's motion for a downward departure from the sentencing guidelines without obtaining supervisory approval as required.
OPR conducted an investigation and concluded that the attorney committed professional misconduct by acting in reckless disregard of his office's policy requiring supervisory approval to acquiesce in the defendant's motion for downward departure and in reckless disregard of the attorney's obligation to allow his client (the United States) to make an informed decision regarding the defendant's request for a downward departure. The attorney was suspended without pay for three days.
13. Intentional Failure to Maintain Active Law License, Satisfy Debts, Provide Truthful Responses to Federal Investigators. OPR received allegations that a DOJ attorney knowingly and willfully failed to maintain an active law license, failed to pay various debts (including federal income taxes and federal student loans), and lied to federal investigators during a background investigation about the attorney's employment and credit history.
OPR conducted an investigation and found that the attorney knowingly and willfully tried to mislead federal investigators during a background investigation, knowingly failed to maintain an active law license, and failed to pay various debts. The attorney received a fourteen-day suspension without pay. Pursuant to the Department's policy, OPR notified the attorney's state bar of the finding of professional misconduct.
14. Grand Jury Abuse. A DOJ attorney allegedly improperly required a target of an investigation to appear before a grand jury even though the target's counsel notified the attorney in advance that the target would assert the Fifth Amendment to all questions. It was further alleged that the attorney improperly required the target to invoke his Fifth Amendment privilege approximately 100 times, thus unfairly prejudicing him in front of the grand jurors.
OPR conducted an investigation and found that the attorney had valid reasons for requiring the target's appearance and that the attorney did not commit professional misconduct due to the unique circumstances that gave rise to the situation. Nevertheless, OPR also concluded that the attorney exercised poor judgment by not ceasing the questioning after it became clear that the target was asserting the Fifth Amendment privilege in a blanket manner to all questions. OPR referred this finding of poor judgment to the DOJ attorney's employing component for consideration in a management context. The attorney was counseled and instructed to review written guidance and policies on grand jury practice set forth in the U.S. Attorneys' Manual.
15. Outside Unauthorized Practice of Law. OPR received an allegation that a DOJ attorney represented a private citizen in state court civil lawsuit without obtaining authorization through appropriate Department channels for the outside practice of law. OPR conducted an investigation and determined that the DOJ attorney represented a personal friend at a deposition in a private civil action in state court. OPR found that the DOJ attorney terminated the representation during the deposition after it became clear that the United States had a potential interest in the case.
OPR found that the DOJ attorney was not aware of the requirement that such representation be approved by the Department. OPR concluded that the DOJ attorney exercised poor judgment by failing to check the regulations or to seek guidance from an ethics officer or supervisor before undertaking the representation. OPR referred this finding of poor judgment to the DOJ attorney's employing component for consideration in a management context. No further disciplinary action was taken by the DOJ attorney's office because a supervisor had admonished her shortly after the incident occurred.
16. Unauthorized Disclosure of Classified Information. OPR investigated an allegation that a DOJ attorney improperly permitted classified documents to be mailed to a defense attorney without following the proper procedures for the mailing of such documents. As a result, it was alleged, the defense attorney had treated the documents as unclassified and had sent copies of them to various unauthorized persons, including members of the news media.
OPR conducted an investigation and concluded that the DOJ attorney exercised poor judgment by failing to take adequate steps to prevent the unauthorized disclosure of classified documents. OPR found that the DOJ attorney was responsible for providing discovery materials to the defense attorney in connection with a lawsuit brought against the United States by the attorney's client. OPR found that the defense attorney was cleared to receive both classified and unclassified materials. However, the classified materials were required to be clearly identified as such and to be sent to the defense attorney through an authorized procedure. OPR found that the DOJ attorney failed to ensure that the support staff working on the matter kept the classified and unclassified materials properly separated and sent them out according to the correct procedures. OPR referred this finding of poor judgment to the DOJ attorney's employing component for consideration in a management context. The DOJ attorney received a letter of reprimand.
17. Improper Closing Argument. A court of appeals ruled that a DOJ attorney violated Rule 404(b) by arguing during her closing and rebuttal arguments that evidence showed that the defendant had a propensity to lie.
OPR conducted an investigation and concluded that the attorney did not commit professional misconduct or exercise poor judgment by making the remarks criticized by the court of appeals. OPR found that certain remarks made by the attorney in closing argument, when read in context, showed that the attorney was arguing that certain evidence constituted direct evidence of the defendant's knowing use of false statements in a fraudulent loan application rather than 404(b) evidence. OPR therefore concluded that those remarks were not improper. OPR found further, however, that remarks made in rebuttal argument created a risk that the jury could interpret her argument to mean that the defendant had a propensity to tell lies. OPR determined that the DOJ attorney did not intend this result, but that her choice of words was inappropriate and constituted a mistake.
18. Unauthorized Disclosure of Rule 6(e) Material. OPR investigated a report from a supervisory attorney in the Department that a DOJ attorney might have violated grand jury secrecy by allowing a prospective grand jury witness to read the transcript of another grand jury witness before testifying before the same grand jury. OPR concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment because it appeared that the disclosure in question was authorized under Fed. R. Crim. P. 6(e)(3)(A)(i) (Rule 6(e)). That section provides that a disclosure otherwise prohibited by Rule 6(e) may be made to "an attorney for the government for use in the performance of such attorney's duty." Some court decisions and Department guidance construe that exception to allow an attorney for the government to share information with other witnesses if necessary in order confirm its accuracy in order to decide whether to recommend a perjury indictment.
OPR also recommended that the component involved review the circumstances under which one grand jury witness's testimony may be disclosed to another witness, whether inside or outside the grand jury room, and that the component develop additional guidance for attorneys if it determined that such guidance was needed.
19. Improper Use of Peremptory Strikes in Jury Selection. A court of appeals criticized a DOJ attorney for using peremptory challenges against prospective jurors in a way that suggested that the basis for the challenges was race. OPR conducted an investigation and concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment, but that she should have presented the actual basis for her peremptory strikes to the district court judge in a more articulate fashion.
20. Failure to Timely Respond to Admissions Requests. A district court in a civil case granted summary judgment against the government because the government's tardy responses to requests for admissions (over two months late to the first set of requests; several days late to the second set) resulted in default admissions.
OPR conducted an investigation and concluded that, by not timely responding to the first set of requests, the DOJ attorney assigned to the matter committed intentional professional misconduct in violation of his duty to diligently represent his client's interests. OPR found that the attorney recklessly disregarded the duty of diligence by allowing the due dates for the second set of requests to pass and by allowing months to pass without taking action to remedy the default, despite having received specific judicial notice regarding the consequences of not doing so. In addition, OPR considered the character of the misconduct to be flagrant, given the length of the attorney's delinquency and the fact that the attorney ignored the court's warning about the consequences of not filing a written motion to withdraw. The attorney was suspended without pay for seven days.
21. Failure to Honor Plea Agreement . A court of appeals ruled that a DOJ attorney violated a plea agreement during her allocution at the defendant's sentencing by breaking the government's promise to limit its request for incarceration to a stipulated range, by breaking its promise not to oppose the defense's request for a downward adjustment for acceptance of responsibility, and by changing its position on the applicability of a sentencing enhancement due to the defendant's use of a "special skill" during commission of the offenses.
OPR conducted an investigation and concluded that the attorney exercised poor judgment by making certain statements regarding the appropriate length of incarceration which could have been interpreted as a request for a sentence beyond the period stipulated to in the plea agreement. OPR concluded further that the attorney committed professional misconduct by making statements regarding a downward adjustment of the sentence for the defendant's acceptance of responsibility, and a sentencing enhancement for the defendant's use of a "special skill." By doing so, OPR found, the attorney acted in reckless disregard of her obligation to comply with the promises made in the plea agreement. The attorney received an admonishment.
22. Failure to Disclose and Misrepresentation of Facts to the Court. OPR investigated an allegation that a DOJ attorney, after trial in a criminal case but before the defendant's sentencing, failed to provide to the defense a copy of a report of an interview of a government witness that had been generated in a separate case. OPR also investigated an allegation that, in a motion to reduce two defendants' sentences in another case based on their substantial assistance to the government, the attorney misrepresented facts concerning the timing of the assistance.
In the first matter, OPR concluded that the attorney did not commit professional misconduct by failing to disclose the interview report because the report was not inconsistent with the witness's testimony at trial and did not constitute impeachment material. In the second matter, OPR found that the statements the attorney made in the motion about the timing of the defendants' assistance were not false or misleading. However, OPR concluded that the attorney exercised poor judgment by failing to include certain background facts about the government's relationship with the defendants that the court could have considered in its decision on the government's motion. OPR did not refer this finding of poor judgment to the attorney's employing component for consideration in a management context because the attorney had left the Department.
23. Abuse of the Grand Jury or Indictment Process; Misrepresentation/Misleading the Court. OPR investigated an allegation that a DOJ attorney permitted a grand juror to leave the courthouse after the grand jury had voted to return an indictment, but before the grand jurors had actually presented the indictment to the magistrate judge. It was alleged that the absence of this grand juror reduced the number of grand jurors to less than a quorum, resulting in a technical violation of Fed. R. Crim. P. 6(f) (Rule 6(f)). It also was alleged that the DOJ attorney failed to bring the grand juror's absence to the attention of the court.
OPR conducted an investigation and found that the DOJ attorney told one grand juror, who was late for a college class, that she could leave the courthouse after the indictment was returned. OPR found that the DOJ attorney exercised poor judgment in permitting the early departure without checking the applicable rules to determine if the absence of a quorum of grand jurors at the presentment of the indictment to the magistrate judge would create a legal problem. OPR found that the grand juror's absence did result in a technical violation of Rule 6(f), but that the violation had no effect on the validity of the indictment.
OPR also found that the DOJ attorney failed to advise the magistrate judge that one of the grand jurors had left early, even though the DOJ attorney had told her she could leave and believed that she had left. OPR found that the DOJ attorney engaged in professional misconduct by acting in reckless disregard of her duty to be candid with the court and to advise the court of a potential problem with the return of the indictment. The attorney received a letter of reprimand.
24. Conflict of Interest; Violation of DOJ Policies. OPR received an allegation that a DOJ attorney failed to recuse himself from a criminal case in which a close relative was involved. OPR conducted an investigation and concluded that the attorney did not engage in professional misconduct. OPR found that the attorney did recuse himself and did not participate in any way in the investigation or prosecution. OPR concluded further, however, that the attorney exercised poor judgment by failing to ascertain and comply with the Department's procedures governing recusals. OPR found that this lapse in judgment led to the failure to notify the appropriate Department officials about the recusal, to inadequate documentation of the recusal, and to the failure to notify the judge presiding over the grand jury of the recusal.
Operations of Federal Bureau of Investigation OPR
and Drug Enforcement Administration OPR
As noted in the preceding section, during fiscal year 2000, OPR assisted and oversaw the operations of the Offices of Professional Responsibility in the FBI and in the DEA. Consistent with 28 C.F.R. Â§ 0.39a(i)(3), which provides for the Counsel to prepare an annual report "reviewing and evaluating the activities of internal inspection units" in the Department of Justice, this section summarizes the operations of, and significant activities in, those offices in fiscal year 2000.
The FBI's Office of Professional Responsibility (FBI/OPR) is responsible for the investigation and adjudication of allegations of misconduct against employees of the FBI. During fiscal year 2000, FBI/OPR had a funded staffing level of sixty-nine, including twenty-eight full-time Special Agents and forty-one full-time support employees.
Significant Initiative in Fiscal Year 2000: The Director announced the creation of a single disciplinary system for all FBI employees in August 2000. Prior to implementing a single system, members of the Senior Executive Service were subject to a peer review process discipline system not enjoyed by other employees. Under the unified disciplinary system, each case is investigated and adjudicated under the same policies, standards, and precedents.
Statistical Summary of FBI/OPR Activities in Fiscal Year 2000: FBI/OPR reported that in fiscal year 2000, it opened 652 matters involving allegations of serious misconduct against 719 identified FBI employees. The 652 matters opened represented an 21% increase over the 538 matters opened in fiscal year 1999. FBI/OPR also reported an 8.5% increase in the number of matters closed, from 491 in fiscal year 1999 to 533 in fiscal year 2000. The 533 closed cases involved 585 identified subject employees. At the close of fiscal year 2000, FBI/OPR had 467 pending matters, a 38% increase over the number of pending matters at the end of fiscal year 1999.
Disposition of FBI/OPR Matters: FBI/OPR investigations in fiscal year 2000 substantiated that misconduct had occurred in 315 of the 533 matters (covering 578 employees) closed by that Office (59%). The Bureau imposed disciplinary action on 172 Special Agents and 143 support personnel as a result of FBI/OPR findings. Sixty-three FBI employees resigned or retired before the completion of the investigation or imposition of discipline.
Examples of Matters Investigated by FBI/OPR in Fiscal Year 2000: (16)
1. A Special Agent fabricated an "Advice of Rights" form, forging the signature of both the subject of the investigation and a witness. At trial, the Special Agent lied under oath in testifying that the form was legitimate. Ultimately, the Special Agent admitted her misconduct. The Special Agent resigned prior to receiving a termination letter, and the Department later prosecuted her.
2. An FBI support employee used an FBI laptop computer to view sexually-explicit material on the internet. The employee then lied under oath about the conduct during the FBI/OPR administrative inquiry by accusing other employees of the misconduct and implying he was "set up" by the employees and a supervisor. The employee was dismissed from the FBI.
3. A Special Agent misused her position by seeking the recusal of a local judge in a case in which the Agent was scheduled to testify, and by engaging in an unauthorized investigation of that judge and of a candidate for district attorney in an attempt to influence an election. The Special Agent was dismissed.
4. An FBI support employee intentionally and repeatedly violated Bureau regulations by falsifying time and attendance records, by being absent without leave on an undetermined number of occasions, and by misusing his government-issued credit card. The employee lied to FBI management concerning his payments on the debt he had incurred on the credit card, and he intentionally submitted to his supervisor an altered document to misrepresent the status of his delinquent account. The employee was dismissed.
5. An FBI support employee stole evidence (over $500 in cash) and then lied under oath during the subsequent FBI/OPR administrative inquiry. The employee was dismissed.
The Drug Enforcement Administration's Office of Professional Responsibility (DEA/OPR), a component of DEA's Inspection Division, is responsible for investigating allegations of misconduct against DEA employees. A Deputy Chief Inspector heads DEA/OPR which in fiscal year 2000 had a staff of fifty-three, including thirty-eight Special Agents, fifteen non-Agents, and, in addition, one contract employee. In addition to DEA Headquarters in Washington, D.C., DEA/OPR maintains staffed offices in Los Angeles, Dallas/Fort Worth, Miami, and Newark, N.J.
Significant Initiatives in Fiscal Year 2000: On November 5, 2000, DEA/OPR opened its Southwest Field Office (SWFO) in Dallas/Fort Worth, which is responsible for the Houston, Dallas, El Paso, Denver, and Aviation Divisions, the El Paso Intelligence Center, and the DEA offices in Mexico and Latin America. The purpose of the SWFO is to reduce the need for inspectors from OPR Headquarters in Washington, or from the other field offices, to handle investigations in those areas on a temporary duty status. DEA/OPR also believes that the SWFO will cut the time investigatory response times, facilitate extended surveillance, and allow greater expertise as to local issues.
DEA/OPR completed the upgrade of its computer network and case-tracking system which allows full access for all DEA/OPR Headquarters and Field Office personnel and executives who have a need to know. The network and case-tracking system allows DEA/OPR to centralize all electronic data files in a secure environment. The system can sort cases by age, geographic area, "special interest" allegations, criminal activity, and other factors, allowing for greater case management. The system also stores investigative files, reference materials, preliminary investigations that are terminated or do not warrant a full investigation, and performance evaluation materials.
Also in fiscal year 2000, DEA/OPR identified practices in which it might improve internal evaluations. For example, DEA/OPR historically has required a review of internal investigative records (also known as an "integrity check") as a prerequisite to personnel advancement actions such as promotions, reassignments, or incentive awards. The integrity check process entails a review of any prior record of misconduct by the DEA employee, task force officer, or contract employee involved. While such checks have increased over the years both in number and scope, no system was in place to tabulate what had been done and to analyze the results systemically. During fiscal year 2000, a tracking system was introduced, which revealed that 9,601 integrity checks had been performed. DEA/OPR expects to improve and streamline the investigative record check process and reduce personnel assigned to perform the checks.
Statistical Summary of DEA/OPR Activities in Fiscal Year 2000: In fiscal year 2000, DEA/OPR reported that it opened 276 professional responsibility matters involving DEA employees, a 9.5% increase over the 252 professional responsibility matters it opened in fiscal year 1999. DEA/OPR closed 307 professional responsibility investigations in fiscal year 2000, a closure increase of 64% over the 187 professional responsibility matters closed in fiscal year 1999. At the end of fiscal year 2000, 209 professional responsibility matters were pending.
In addition, DEA reported that in fiscal year 2000 it opened 135 "general" matters (IGF files). DEA/OPR opens an IGF file when a preliminary review is needed to determine if sufficient information exists warranting a full investigation. Of the 135 IGF's, DEA/OPR ultimately converted 62 into professional responsibility investigations, as reflected in the statistics above. By comparison, in fiscal year 1999, DEA/OPR opened 71 IGF's, of which only eight became full professional responsibility investigations.
Disposition of DEA/OPR Matters: Of the 307 professional responsibility matters closed in fiscal year 2000, DEA/OPR found the misconduct allegations substantiated in 109 matters, a substantiation rate of 35.5%. As a result of these findings, DEA disciplined 78 DEA Agents and 51 other DEA employees. Twenty-six others resigned or retired from DEA before the completion of the professional responsibility investigation or the imposition of discipline. In fiscal year 1999, by comparison, DEA/OPR found that misconduct allegations were substantiated in 72 of the 187 closed matters (or 38%), and DEA disciplined a total of 90 employees. (17)
1. A defense attorney reported to DEA/OPR that a DEA Special Agent was having sexual relations with a confidential informant, whom he also allegedly allowed to accompany him on surveillance missions. DEA/OPR's investigation confirmed the allegations and revealed that the Special Agent used his government vehicle on dozens of occasions in furtherance of his relationship with the informant; that he had provided her with a box of ammunition issued to him by DEA; that he allowed her to take nude photographs of him; that, at the informant's request, the Special Agent had conducted a computer vehicle license plate query, the results of which he shared with her; and that the Special Agent had in fact shared a residence with the informant. Initially, the Special Agent was ordered to terminate the relationship and was placed on administrative leave. The Special Agent did not end the relationship. The Board of Professional Conduct proposed the Special Agent's termination based on DEA/OPR's findings of improper association, unauthorized use of a government automobile, conduct unbecoming a DEA Special Agent, unauthorized disclosure, and poor judgment. The proposed termination was upheld by the DEA deciding official.
2. A local police department recovered an abandoned car in which they found a sealed DEA evidence bag containing 27 grams of marijuana from a 1991 investigation. The vehicle was traced to a DEA chemist. In tracking the paperwork from the 1991 investigation, DEA/OPR determined that the chemist had removed the 27 grams for submission to the DEA Special Testing Lab. A review of other matters in which the chemist had been involved revealed two other matters in which the chemist did not submit drug samples that the chemist had removed for testing. Pursuant to the advice of the Department of Justice OPR, the matter was referred for criminal prosecution and the chemist was arrested and charged with theft of government property and possession of controlled substances. The chemist was placed on suspension pending resolution of the criminal matter. In a proffer, the chemist admitted responsibility for the theft of government property. The government declined to prosecute the case. The chemist left government service and the DEA/OPR investigation was closed administratively.
3. A DEA Special Agent in Charge reported that a Special Agent in the Field Office had made unwelcome repeated sexual advances to an FBI Special Agent. DEA/OPR's investigation found partial corroboration for the FBI Special Agent's allegations by an eyewitness to certain of the alleged actions. On the charge of conduct unbecoming a DEA Special Agent, the Board of Professional Conduct proposed a 30-day suspension for the DEA Special Agent, which was upheld by the deciding official.
4. A confidential source of information stated that she had signed a voucher for payment although she had received only half the payment. DEA/OPR's investigation revealed that the confidential source had signed a DEA Form 103 (the payment voucher), and that the Special Agent had kept the balance of the funds to buy the source an airline ticket, although the Special Agent had not done so. The Special Agent later had discovered the funds in an envelope on his desk, and paid the money to the source. As a result of these findings, the Special Agent was suspended without pay for seven days.
5. A DEA employee alleged sexual harassment by another DEA employee through the receipt of inappropriate e-mail. Per DEA/OPR's request, all e-mails between the two DEA employees were retrieved. When the offended employee informed the other DEA employee that the e-mails contained inappropriate material, the employee who had sent the offensive e-mails apologized (by e-mail) and promised to not continue his behavior. The Board of Professional Conduct proposed a 10-day suspension but the Deciding Official found that the conduct unbecoming charges to be unfounded, and instead found the conduct reflected poor judgment warranting a written reprimand.
During fiscal year 2000, Department attorneys continued to perform their duties in accordance with the high professional standards expected of the nation's principal law enforcement agency. OPR initiated a pilot project offering certain Department attorneys who were the subjects of OPR investigations an opportunity formally to respond to OPR's findings and conclusions, and participated in developing a manual on the ethical obligations applicable to Immigration Judges, members of the Board of Immigration Appeals, and Administrative Law Judges employed by the Executive Office for Immigration Review. OPR's participation in these efforts as well as in the Department's training and education activities have 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.
2. 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.
3. Based on a survey of matters opened for investigation over a three and one-half year period, OPR found that the categories of misconduct most commonly involved in allegations against Department attorneys include abuse of authority (including misuse of official position, abuse of prosecutive or investigative authority, approval of a warrant application not supported by probable cause, abuse of the indictment process, entering into an improper plea agreement or failure to honor a plea agreement, improper coercion or intimidation of a witness, improper use of peremptory strikes during jury selection, ex parte communication, improper introduction of evidence, and obstruction of justice); misrepresentations to the court or opposing counsel; improper remarks or argument to a jury or grand jury; failure to perform or dereliction of duty, including failure to diligently represent the government; unauthorized disclosure of confidential information, including grand jury information, classified information, or otherwise sensitive or protected information; failure to disclose information as required by constitutional obligations, statute, or discovery rules; conflict of interest, including conflicting personal interests; and failure to maintain active bar membership.
4. The Hyde Amendment permits a prevailing party in a criminal prosecution to seek reimbursement for attorneys' fees on grounds that the position of the United States in the prosecution was "frivolous, vexatious, or in bad faith." Pub.L. No. 105-119, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. Â§ 3006A, historical and statutory notes). The Citizens Protection Act requires Department attorneys to comply with state and local federal court rules of professional responsibility. 28 U.S.C. Â§ 530B.
5. The GAO report noted, however, that in fiscal year 1999 and the first half of fiscal year 2000, the average time it took OPR to close investigations increased to 14.5 months in fiscal year 1999 and 17.7 months in the first half of fiscal year 2000.
6. The circumstances under which OPR may find that an attorney engaged in professional misconduct based upon the reckless disregard of a professional obligation or standard are set forth in footnote 10, below. Previously, the Department's policy called for OPR to notify the relevant state bar disciplinary authorities only when OPR found a Department attorney to have engaged in intentional professional misconduct. OPR's definition of "intentional professional misconduct" is set forth in footnote 9, below.
7. This category includes self-reporting by Department employees and officials of judicial criticism and judicial findings of misconduct as well as allegations of misconduct from other sources.
8. These matters include allegations of retaliation, fraud, and theft.
9. This category includes self-reporting by Department employees and officials of judicial criticism and judicial findings of misconduct as well as allegations of misconduct from other sources.
10. These matters include allegations of retaliation, fraud, and theft.
11. Three of these matters also contained one or more findings of reckless disregard. 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.
12. 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 a 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 involves a substantial likelihood that he or she will 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. Thus, an attorney acts in reckless disregard of an obligation or standard when, considering the nature and purpose of the attorney's conduct and the facts known to the attorney, the conduct represents a gross deviation from the standard of conduct that an objectively reasonable attorney would observe in the same situation.
13. In fiscal year 1999, OPR found professional misconduct in 11 investigations, representing 16% of the 63 investigations completed that year involving attorney subjects.
14. In order to protect the privacy of the Department attorneys and other individuals involved in the OPR 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.
15. Managers in the component that employs the attorney involved may consider a variety of actions, including counseling the attorney, arranging for the attorney to undergo additional training, transferring the attorney to different duties, or ensuring closer supervision.
16. In order to protect the privacy of the FBI agents 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.
17. In order to protect the privacy of the DEA agents 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.