2014 Investigative Summary 9

Investigation of Alleged Extrajudicial Comments

A DOJ attorney (DOJ Attorney #1) self-reported to OPR that he had made anonymous comments on a website about pending investigations and federal judges. The matter arose when a civil lawsuit was filed to determine who had made the comments. The DOJ attorney resigned shortly thereafter. OPR distributed a survey to all attorneys in the component inquiring about their general knowledge of the postings, as well as their knowledge or suspicions about the DOJ attorneys' online activities. Based on information obtained from the surveys and other sources, OPR conducted numerous interviews of current and former DOJ attorneys.

Some months later, a second civil lawsuit was filed to determine who had made other anonymous comments on a website about pending matters. Another DOJ attorney (DOJ Attorney #2) acknowledged making those comments and resigned shortly thereafter. OPR expanded its investigation to include those allegations, as well as allegations that DOJ Attorney #2 had a conflict of interest when he continued to participate in litigation concerning DOJ Attorney #1's online comments, and that he violated his duty of candor to the court and to OPR.

Based on the results of its investigation, OPR concluded that:

(1) DOJ Attorneys #1 and #2 committed intentional professional misconduct by publicly disseminating extrajudicial statements regarding active investigations and pending cases in violation of their obligations as set forth in 28 C.F.R. § 50.2, et seq.; the U.S. Attorneys' Manual § 1-7.000, et seq.; the Local Criminal Rules of the U.S. District Court; and office policies;

(2) DOJ Attorneys #1 and #2 committed professional misconduct in violation of the rules of professional conduct by making statements regarding the integrity or qualifications of judges or candidates for judicial office that they knew were false, or with reckless disregard as to the truth or falsity of the statements;

(3) DOJ Attorney #2 committed intentional professional misconduct in violation of the rules of professional conduct by failing to fully inform his supervisors about his Internet postings so that the Department could make informed decisions about whether and to what extent he should be involved in matters relating to DOJ Attorney #1's online postings;

(4) DOJ Attorney #2 committed intentional professional misconduct in violation of the rules of professional conduct by continuing to represent his client, the United States, in matters in which he had a direct, personal conflict of interest without obtaining the written consent of his client;

(5) DOJ Attorney #2 committed intentional professional misconduct in violation of the rules of professional conduct when he made misrepresentations to, or withheld material information from, federal district judges and senior Department officials. That conduct was prejudicial to the administration of justice;

(6) DOJ Attorneys #1 and #2 engaged in conduct that was detrimental to the interests of the Department by making inappropriate and offensive comments on the Internet;

(7) The evidence was insufficient to establish by a preponderance of the evidence that any supervisors of DOJ Attorneys #1 or #2 were aware contemporaneously of their anonymous postings;

(8) The evidence was insufficient to establish by a preponderance of the evidence that DOJ attorneys who may have suspected that DOJ Attorney #1 might be engaged in online posting activity intentionally or recklessly violated a clear and unambiguous duty to report that information to supervisors or to the state bar authorities; 

OPR found no evidence establishing that any DOJ employee besides DOJ Attorneys#1 and #2 violated Department, court, or ethical rules prohibiting the posting of online comments concerning active Department investigations or pending cases. 

The Office of the Deputy Attorney General upheld OPR's findings and conclusions concerning DOJ Attorneys #1 and #2, and OPR notified the appropriate state bar disciplinary authorities of its findings.