2014 Investigative Summary 10

Investigation of Alleged Failure to Communicate with the Client;
Failure to Keep the Client Reasonably Informed

A DOJ component reported to OPR that a DOJ Attorney had developed a personal relationship with, and knowingly withheld potentially discoverable information about, a former confidential source who was likely to testify in a case that the DOJ attorney's colleagues were preparing for trial. OPR initiated an investigation.

Years earlier, the DOJ attorney prosecuted a complex multi-defendant case in which the confidential source testified for the government. One of the defendants in that case disappeared before trial. By the time the fugitive defendant was apprehended and returned to the jurisdiction, the DOJ attorney had been re-assigned, and a new team began to prepare the case for trial. In the following months, the DOJ attorney transferred his files to the new trial team, and he responded to their occasional inquiries about witnesses and evidence. The DOJ attorney also continued to receive electronic notices from the court regarding developments in the case.

Approximately one year after the fugitive's arrest, the new trial team interviewed the confidential source for the first time. During the course of that interview, the source revealed that he had remained in regular contact with the DOJ attorney and had sent him audio tapes that discussed the confidential source's role in the case. In addition, the confidential source advised the trial team that the DOJ attorney had made a phone call on his behalf to law enforcement officers in another jurisdiction after the confidential source was arrested there. Although the confidential source believed that the judge was informed of his cooperation, he did not think that he received a reduced sentence as a result.

Prior to the trial team's interview of the confidential source, the DOJ attorney had not revealed to his colleagues anything about the confidential source's audio recordings. When confronted by his supervisors, the DOJ attorney admitted that he had remained in regular contact with the confidential source, and that he had made phone calls on his behalf. The DOJ attorney also acknowledged that he knew about the confidential source's audio tapes, stored them in his office, and never mentioned the tapes or his efforts on the confidential source's behalf until he was confronted by his supervisors about the issue.

Based on the results of its investigation, OPR concluded that the DOJ attorney committed intentional professional misconduct by deliberately withholding information and potentially discoverable material from the trial team, in violation of his obligations to communicate with his client, the United States, and to keep his client reasonably informed, and thereby impeded the trial team's ability to make informed and timely decisions in the case on behalf of the United States.

OPR referred its findings to the PMRU and the DOJ attorney's component. Because the DOJ Attorney retired from the Department before the conclusion of OPR's investigation, the Department was unable to take any disciplinary action in this matter. The PMRU, however, upheld OPR's findings and authorized OPR to refer this matter to the state bar disciplinary authorities, and OPR subsequently did so.