2024 Investigative Summary 6

Investigation of Alleged Improper Contact with a Represented Person, Lack of Candor to Defense Counsel, and Failure to Advise the Client

A USAO notified OPR of the conduct of an AUSA in a pre-indictment grand jury investigation.  Although the target was known by the AUSA and the agent to be represented by counsel in the investigation, the agent spoke to the target outside counsel’s presence and after learning that the target, who was of advanced age, was experiencing significant health problems, suggested that the investigation could potentially be resolved through an administrative agreement to repay the funds that the target allegedly fraudulently obtained.  After the agent informed the AUSA of his conversation with the target, the AUSA and the agent agreed that the investigation should be closed.  Shortly thereafter, the agent informed the AUSA that he had prepared the repayment agreement and inquired if he could have the target sign the agreement outside the presence of his counsel.  The AUSA instructed the agent to ask the target if he wished to have his counsel present and if the target responded in the negative, then the agent could have the target sign the repayment agreement.  The agent followed the AUSA’s instructions, and the target signed the agreement after declining the presence of counsel.  The AUSA later notified the target’s counsel in a series of communications about what had occurred, including that the target had signed the agreement and that the investigation was closed.  The AUSA had not previously conferred with his supervisor about the repayment agreement or the decision to close the investigation.  The AUSA’s initial communications with the target’s counsel were inaccurate and incomplete, and he proffered a more complete, corrected version of the facts only upon counsel’s repeated questioning.    
    OPR found that the AUSA committed professional misconduct by acting in reckless disregard of the applicable rules of professional conduct when, knowing that the target was represented in the investigation, he authorized the agent to communicate with the target about the investigation outside the presence of his counsel.  OPR also found that the AUSA committed professional misconduct by acting in reckless disregard of his obligations under the applicable rules of professional conduct in failing to explain to his client the facts that were reasonably necessary for the client to make informed decisions about the matter.  OPR further concluded that the AUSA exercised poor judgment when he failed in his initial communications with the target’s counsel to describe the agent’s contact with the target accurately and completely.  The matter is pending before the PMRU.