2017 Investigative Summary 11

Investigation of Alleged Abuse of Grand Jury Process; Misrepresentation/Misleading the Court; Failure to Keep Client Informed;
Lack of Candor to OPR; Failure to Comply with Court Order

A DOJ component informed OPR of a state judge’s finding that a DOJ attorney had issued a federal grand jury subpoena duces tecum not for a proper investigative purpose, but instead to improperly thwart a state court order. OPR conducted an investigation into the circumstances under which the DOJ attorney issued the grand jury subpoena duces tecum. The subpoenaed documents at issue were state agency records that had been the subject of lengthy litigation in state court by a third party seeking disclosure pursuant to state public records law. After a contested hearing, the state court issued an order requiring that the documents be disclosed to the third party.

Immediately thereafter, the DOJ attorney caused the federal subpoena duces tecum to be issued, which resulted in the documents being taken into the exclusive possession of the DOJ component, rendering them unavailable to the state court and the third party. Based on the results of its investigation, OPR concluded that there was no valid investigative purpose for the federal grand jury subpoena, and further concluded that the DOJ attorney intentionally issued it solely to prevent the documents from being disclosed to the third party pursuant to the state court order.

OPR further found that the DOJ attorney intentionally made multiple false and misleading statements—to the federal judge supervising the grand jury, to her office’s management, to OPR, and to other persons and entities—regarding the federal subpoena. Finally, OPR found that the DOJ component’s management, having been affirmatively misled, did not commit professional misconduct in its supervision of the attorney, but that one manager exercised poor judgment by not asking more probing questions of the DOJ attorney, given the unusual circumstances under which the federal subpoena duces tecum was issued.

OPR referred its findings to the PRMU, which upheld OPR’s findings of professional misconduct. Because the DOJ attorney resigned from the Department before the PMRU issued its decision, no Department discipline could be imposed. The PMRU, however, authorized OPR to refer its findings to the state bar. OPR thereafter referred its findings of professional misconduct to the appropriate state bar disciplinary authority.