2013 Investigative Summary 11

Investigation of Alleged Failure to Comply with Plea Agreement Policies;
Failure to Keep Client Informed; Candor to the Court; Misrepresentation

A DOJ manager notified OPR that a DOJ attorney, acting without the knowledge or approval of her supervisors and in violation of office policy, included language in a plea agreement stipulating that the defendant had provided substantial assistance to the government and was “entitled” to a government motion for a downward departure at sentencing, pursuant to Section 5K1.1 of the U. S. Sentencing Guidelines (USSG). The DOJ manager also raised questions about the DOJ attorney’s candor in her communications with her supervisors and the district judge assigned to the case with respect to the government’s subsequent failure to honor the plea agreement’s commitment to file a motion for a downward departure.

OPR conducted an investigation and found that the DOJ attorney violated a clear and unambiguous office policy by entering into a plea agreement that committed the government to move for a downward departure at sentencing, without obtaining the requisite supervisory approval. OPR found that because the supervisors were unaware of the binding commitment in the plea agreement, they did not authorize the DOJ attorney to move for a downward departure at sentencing, as the plea agreement required. The DOJ attorney declined to file a downward departure motion and, at the sentencing hearing, attributed the failure to honor the plea agreement to her supervisors.

OPR concluded that the attorney engaged in intentional professional misconduct by failing to abide by the directives of her client and by failing to keep her client informed of material facts with respect to the representation. OPR further concluded that the attorney violated her duty of candor to the court when she failed to correct the court’s erroneous belief that the government knowingly breached the plea agreement by declining to move for the downward departure, even though she knew that her supervisors were unaware that the plea agreement contained a binding promise to file such a motion. OPR concluded that the DOJ attorney’s failure to correct the court’s misunderstanding constituted intentional professional misconduct.

Finally, OPR found that the DOJ attorney, between the entry of the guilty plea and the sentencing in the case, repeatedly misled her supervisors by not informing them that she had inserted language in the plea agreement that committed the government to move for a downward departure at sentencing. As a result, the government’s decision to not file a downward departure motion made it appear to the court that the government had knowingly reneged on its commitment. OPR concluded that the DOJ attorney’s course of conduct in the case -- from agreeing to move for a downward departure without authorization, to leading the court to believe that the government had knowingly breached the plea agreement’s commitment to so move -- constituted dishonest and deceitful conduct. Accordingly, OPR concluded that the DOJ attorney committed intentional professional misconduct in her handling of the case.

OPR referred its findings to the PMRU, which upheld OPR’s findings and imposed a 20-day suspension. While the suspension was on appeal to the Merit Systems Protection Board, the penalty was mitigated to a 12-day suspension by agreement of the parties. OPR referred its findings to the appropriate state bar disciplinary authority.