2013 Investigative Summary 7

Investigation of Alleged Failure to Keep the Client Reasonably Informed;
Failure to Abide by the Client’s Decisions

OPR learned of allegations that, in two related criminal cases, a DOJ attorney, contrary to her supervisors’ instructions: (1) argued that a provision of the U.S. Sentencing Guidelines (USSG) was not applicable to the calculation of the defendant’s sentence; and (2) made certain sentencing arguments and argued in favor of probation for a defendant. OPR conducted an investigation. 

With respect to the allegation that the DOJ attorney disregarded her supervisors’ instruction to argue in favor of the application of the USSG provision, OPR concluded that the DOJ attorney engaged in professional misconduct by acting in reckless disregard of the rules of professional conduct that obligate an attorney to inform the client about all circumstances that may affect the client’s ability to make an informed decision.

OPR found that the DOJ attorney failed to inform her supervisors that their instruction might violate the existing plea agreement. During e-mail exchanges and meetings with supervisors prior to the sentencing hearing, the DOJ attorney neither communicated her concern that the instruction violated the plea agreement, nor during the decision making process did she provide her supervisors with enough information to allow them to make a determination about the impact of their instruction on the plea agreement.

As a consequence of the DOJ attorney’s failure to communicate effectively with her client, the DOJ supervisors lacked sufficient information to make an informed decision, and were not able to consider available alternatives, including fashioning an argument that protected the United States’ interests in the uniform application of the USSG, while complying with the terms of the plea agreement.

OPR also considered the allegation that contrary to her supervisors’ instruction, the DOJ attorney made certain sentencing arguments and argued in favor of probation for a defendant. While the DOJ attorney had discussed with supervisors the possibility of supporting a sentence of probation for this defendant, that request was denied, and the supervisors expected the DOJ attorney to argue for a sentence within the USSG range, and avoid raising certain arguments. After the sentencing hearing, in response to a supervisor’s question, the DOJ attorney did not reveal that she had argued in favor of probation.

OPR did not find the DOJ attorney’s multiple and conflicting explanations supporting her decision to argue in favor of probation to be credible. As a consequence, OPR concluded that the DOJ attorney engaged in professional misconduct by acting in reckless disregard of her obligation to abide by a client’s decisions concerning the means by which the client’s objectives are to be achieved.

Because the DOJ attorney resigned from the Department, no discipline was imposed in this matter. At the direction of the PMRU, OPR notified the appropriate state bar authorities of its findings of professional misconduct.