2021 Investigative Summary 3

Investigation of Alleged Misrepresentations to Court, Failure to Obey Court Orders, Failure to Competently Represent Client, Unauthorized Public Disclosure of Confidential Information, and Failure to Comply with Discovery Obligations

A U.S. Attorney’s Office reported that a court made multiple findings that an Assistant U.S. Attorney (AUSA) was not candid with the court and failed to comply with the court’s orders concerning two confidential sources who had provided exculpatory information.  The court determined that the government, while taking the position that it did not want to disclose the identities of the sources, misrepresented its knowledge of their whereabouts, failed to correct the misrepresentations, and ignored the court’s order to inform it immediately if certain events occurred.    

During its investigation, OPR identified several other issues that it examined, including that the AUSA disclosed confidential identifying information about the sources on the public docket.  This action violated a court order sealing such information that the AUSA herself had requested.  In addition, OPR examined the defense’s allegations that the AUSA failed to disclose Giglio information with respect to a government lay witness. 

OPR’s investigation determined that the evidence was insufficient to establish that the AUSA committed professional misconduct by making misrepresentations to the court.  The evidence regarding the AUSA’s knowledge of the facts at the time she made the inaccurate statements did not show to a preponderance that she knew her statements to the court were false.  OPR instead concluded that the AUSA exercised poor judgment when she made factual representations about the sources without having obtained current information.

However, OPR’s investigation revealed that the AUSA committed professional misconduct by violating client confidences and displaying a lack of competence when she intentionally disclosed the confidential identifying information about the sources on the public docket.  Her improper disclosure of the information violated the court’s order not to put the sources’ identification information into a public filing, and the court’s order that the AUSA inform the court if certain events happened.  OPR concluded that these intentional actions by the AUSA violated her obligations under multiple state rules of professional conduct.  

OPR was unable to determine by a preponderance of evidence that the AUSA failed to disclose Giglio information with respect to a government lay witness.  Accordingly, OPR’s investigation did not show that she committed professional misconduct with respect to this issue.

Before OPR completed its investigation, the AUSA retired from the Department.  Pursuant to authorization by the Professional Misconduct Review Unit, OPR has referred the matter to the appropriate state attorney disciplinary authority.