2020 INVESTIGATIVE SUMMARY 1
INVESTIGATION OF ALLEGED CONFLICT OF INTEREST
In January 2020, a Department attorney self-reported to OPR that defense counsel alleged that his involvement in a criminal prosecution amounted to a per se due process violation, because he previously represented the defendant in the same matter while in private practice. After joining the Department, the attorney assisted in the processing of a request related to the government’s efforts to conduct a witness interview for use in the government’s prosecution of the attorney’s former client.
The attorney resigned from the Department during OPR’s investigation. Following its investigation, OPR determined that the attorney engaged in intentional professional misconduct in violation of 5 C.F.R. § 2635.502 and attorney ethics rules 1.7 and 1.9 when he knowingly represented the government despite a conflict of interest and without obtaining the consent of his current and former clients.
OPR referred the matter to the Professional Misconduct Review Unit (PMRU), which concluded that OPR’s finding that the attorney committed professional misconduct by representing the government despite a conflict of interest and without obtaining the consent of his former client implicated Rule 1.9, but that the attorney’s conduct did not implicate rule 1.7. While not making a specific finding regarding intentionality, the PMRU concluded that the attorney’s conduct was at a minimum reckless. The PMRU further determined that the attorney’s conduct implicated ethics rule 1.1(a), through a serious deficiency in the performance of his duties that prejudiced the government, and authorized OPR to provide the results of its investigation and the PMRU decision to the appropriate bar disciplinary authorities.