As noted in OPR’s Annual Report for Fiscal Year 2001, OPR no longer exercises oversight of the Offices of Professional Responsibility in the Federal Bureau of Investigation (FBI/OPR) or the Drug Enforcement Administration (DEA/OPR). In July 2001, the Attorney General placed those internal inspection units under the oversight of the OIG. 66 Fed. Reg. 37902 (July 20, 2001). Accordingly, OPR’s Annual Report no longer contains information about the operation of those offices. OPR continued, however, to exercise jurisdiction over FBI and DEA agents when allegations of misconduct against such agents relate to the exercise of a Department of Justice attorney’s authority to investigate, litigate, or provide legal advice. In addition, OPR continued to render prosecutive decisions in investigations conducted by FBI/OPR and DEA/OPR. OPR also continued to share with the OIG responsibility for reviewing and investigating (as appropriate) whistleblower complaints by FBI employees.

Intake and Initial Evaluation of Complaints

In fiscal year 2002, OPR received 684 complaints and other letters and memoranda requesting assistance. OPR determined that 285 of the matters, or approximately 42%, warranted further review by OPR attorneys. OPR opened full investigations in sixty-nine of those matters; the remaining 216, which are termed “inquiries,” were resolved with no findings of professional misconduct, based on further review, responses from the subjects, and other information. When information developed in an inquiry indicated that further investigation was warranted, the matter was converted to a full investigation.

The remaining 399 matters were determined not to warrant an inquiry by OPR because, for example, they related to matters outside the jurisdiction of OPR; sought review of issues that were being litigated or that had already been considered and rejected by a court; were frivolous, vague, or unsupported by any evidence; or simply requested information. Those matters were addressed by experienced management analysts through correspondence or referral to another government agency or Department of Justice component. A supervisory OPR attorney and the Deputy Counsel reviewed all such dispositions.

OPR Investigations in Fiscal Year 2002

Characteristics of Investigations Opened in Fiscal Year 2002: OPR investigations opened in fiscal year 2002 were based on complaints from a variety of sources, as reflected in Table 1.

Source	Complaints Leading to Investigations	Percentage of All Investigations
Sources of Complaints in Investigations Opened in FY 2002
Judicial opinions & referrals ⁽²⁾	42	61.0%
Private attorneys	20	29.0%
Department components	3	4.3%
Private parties	1	1.4%
Other agencies	3	4.3%
Other sources	0	0.0%
Total	69	100 %

OPR opened a total of sixty-nine new investigations in fiscal year 2002. These sixty-nine investigations involved 111 separate allegations of misconduct. The subject matter of the 111 allegations is set out in Table 2.

Type of Allegation	New Allegations Investigated in FY 2002	Percentage of All Allegations in Investigations
Misconduct Allegations in Investigations Opened by OPR in Fiscal Year 2002, by Type of Allegation
Abuse of authority, including abuse of prosecutorial discretion	15	13.5%
Improper remarks to a grand jury, during trial or in pleadings	17	15.3%
Misrepresentation to the court and/or opposing counsel	16	14.4%
Unauthorized disclosure of confidential information, including grand jury information protected by Rule 6(e), Crim. R. Fed. P.	12	10.8%
Failure to perform/dereliction of duty	12	10.8%
Failure to comply with Brady, Giglio or Rule 16 discovery	9	8.1%
Failure to comply with court orders or federal rules	6	5.4%
Conflict of interest	2	1.8%
Failure to comply with DOJ rules and regulations	9	8.1%
Subornation of perjury/failure to correct false testimony	2	1.8%
Interference with defendant's rights	1	1.0%
Lateness (i.e., missed filing dates)	4	3.6%
Lack of fitness to practice law	2	1.8%
Improper contact with represented party	2	1.8%
Failure to comply with Congressional discovery requests, including subpoenas	0	0.0%
Unauthorized practice of law	0	0.0%
Other ⁽³⁾	2	1.8%
Total	111	100.0%

Investigations Closed in Fiscal Year 2002: OPR closed a total of seventy-six investigations in fiscal year 2002, three of which involved non-attorney subjects. Of the seventy-six investigations that were closed during the fiscal year, OPR found professional misconduct in twenty-three, or approximately 30%, of the matters. Eight of those matters involved at least one finding of intentional professional misconduct by a Department attorney.⁽⁴⁾ In the remaining fifteen matters in which OPR found professional misconduct, thirteen involved findings that the attorney had recklessly disregarded an applicable obligation or standard.⁽⁵⁾ The other two involved findings of misconduct against non-attorney Department employees. The proportion of investigations resulting in findings of professional misconduct on the part of Department attorneys was higher than in fiscal year 2001, in which OPR found professional misconduct in 25% of the investigations, and significantly higher than in fiscal year 2000, in which OPR found professional misconduct in 15% of its investigations.

Disciplinary action was initiated against seventeen of the twenty-three attorneys found by OPR to have engaged in professional misconduct. Three attorneys received a proposed removal letter (two are appealing their removal to the Merit Systems Protection Board, and the appeals remained pending at the close of Fiscal Year 2002); six were suspended without pay for a period of time; four received written reprimands; and one attorney who received a written reprimand that was later rescinded. OPR’s recommendations for disciplinary action remained pending at the close of FY 2002 in three cases involving attorneys; the recommendations in those cases were suspensions ranging from one to fourteen days. In five cases in which OPR found professional misconduct, the subject attorney resigned from the Department prior to the completion of OPR’s investigation. Three non-attorneys also were found to have engaged in professional misconduct. Disciplinary action was initiated against one of those persons, and that person received a censure. The other two non-attorneys resigned prior to the initiation of disciplinary proceedings.

OPR also closed fourteen investigations, or approximately 18%, with at least one finding that an attorney exercised poor judgment.⁽⁶⁾ Six of those fourteen matters also involved findings of professional misconduct, and are included in the twenty-three matters that contained findings of professional misconduct. Nineteen matters, or approximately 25%, involved at least one finding that an attorney had made a mistake.⁽⁷⁾ One of those nineteen matters also involved a finding of professional misconduct, and one also involved a finding of poor judgment. Thus, of the seventy-six matters closed, OPR found professional misconduct or poor judgment in thirty-one matters, or approximately 41%.

Examples of Investigations Closed in Fiscal Year 2002⁽⁸⁾

1. Unauthorized Disclosure to the Media. OPR investigated an allegation that two DOJ attorneys provided a confidential FBI file to representatives of the media. The two DOJ attorneys admitted they disclosed the file in exchange for information from the media representatives that they thought could be helpful in another investigation.

OPR concluded that the two DOJ attorneys engaged in professional misconduct by acting in reckless disregard of the Privacy Act, Department directives, and state bar rules concerning the confidentiality of official files and information.

One of the DOJ attorneys resigned from the Department prior to the completion of OPR’s investigation. The other attorney was suspended for five days. OPR referred its findings of professional misconduct with respect to both attorneys to the appropriate state bar authorities.

2. Grand Jury Misconduct. Defense counsel alleged that a DOJ attorney engaged in professional misconduct by misleading a defendant during his grand jury appearance about the scope of his Fifth Amendment privilege; by failing to inform him that he faced potential federal prosecution for actions that resulted in a state conviction elsewhere; by telling him that he could not invoke his Fifth Amendment privilege if his testimony incriminated someone else, even though such statements could also have been self-incriminating; and by disregarding his repeated requests to consult with counsel.

OPR conducted an investigation and concluded that, in the absence of any constitutional right to counsel or clear Department guidance concerning affording a witness the opportunity to contact a lawyer when the witness did not bring counsel with him to the grand jury, the DOJ attorney did not engage in professional misconduct or exercise poor judgment in not allowing the witness to leave the grand jury room ostensibly to telephone an attorney for advice. However, OPR concluded that the DOJ attorney provided misleading advice to the defendant concerning the effect of a state conviction on his potential federal criminal liability, and as to the scope of his Fifth Amendment privilege. OPR concluded that, in providing misleading advice to the unrepresented defendant, the DOJ attorney exercised poor judgment.

3. Petite Policy. A court of appeals rejected a defendant’s claim that he was prosecuted in violation of DOJ’s Petite policy, which provides that, unless there is a compelling federal interest, a federal prosecution should not be based on substantially the same act or acts that were the basis for a prior state court prosecution. Although the court of appeals did not address the claim because it recognized that the Petite policy is not a bar to federal prosecution, OPR conducted an investigation to determine whether DOJ policy had been violated.

OPR concluded that the Petite policy had not been violated. The DOJ attorney handling the case sought and obtained a waiver of the Petite policy, in accordance with the applicable DOJ operating procedures, prior to commencing the federal prosecution. Accordingly, we concluded that the DOJ attorney acted appropriately under the circumstances.

4. Unauthorized Practice of Law; Falsification of Records. OPR was notified that a DOJ attorney was not an active member of any bar and had falsely certified to the Department and his supervisors that he had an active bar membership. OPR conducted an investigation. Although the DOJ attorney admitted that he did not have an active license for four years, he asserted that he had initially believed that “associate” membership in a bar was sufficient to satisfy the statutory and Department requirement that all attorneys be “duly licensed and authorized to practice.”

OPR concluded that the DOJ attorney did not intentionally violate his obligation to maintain an active bar license, but rather acted in reckless disregard of the active membership requirement. OPR concluded further that the DOJ attorney engaged in intentional professional misconduct by falsely certifying that he had an active membership in a state bar even after the attorney realized that the “associate” membership did not constitute active status.

The DOJ attorney was suspended for seven days. OPR referred its findings of professional misconduct to the appropriate state bar authorities.

5. Improper Closing Argument; Missing Witness. A court of appeals ruled that a DOJ attorney interfered with the defendant’s Sixth Amendment right to call witnesses in his defense by indirectly threatening his wife with prosecution if she testified in a manner contrary to the statements she had made to the police. The court also found that the DOJ attorney impermissibly commented in closing and rebuttal argument on the defendant’s failure to call his wife as a witness.

OPR conducted an investigation and concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment. OPR found that the attorney did not interfere with the defendant’s right to call his wife as a witness; to the contrary, the defendant’s trial counsel made the strategic decision not to call her as a witness, unaffected by the warnings of potential prosecution by the DOJ attorney. OPR concluded, however, that before urging the jury to draw a "missing witness" inference from the wife’s failure to testify, the better practice would have been for the DOJ attorney to make a clear record that the wife was prepared to waive her Fifth Amendment and spousal privileges, and that the defendant elected not to call her as a witness.

6. Discovery Violation; Brady. After a post-trial evidentiary hearing concerning, in part, the government’s failure to release documents generated by a cooperating government witness that conflicted with that witness’s trial testimony, the district court indicated, without making a final ruling, that it was inclined to conclude that the failure to disclose the documents violated the government’s obligations pursuant to Brady and Giglio.

OPR conducted an investigation and concluded that although there was no evidence that the DOJ attorney acted intentionally to withhold the information, as an experienced trial attorney the DOJ attorney committed professional misconduct by acting in reckless disregard of his Brady and Giglio obligations.

The DOJ attorney resigned from the Department prior to the completion of OPR’s investigation. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

7. Grand Jury Misconduct. In an opinion granting the defendant’s motion to suppress evidence developed during the course of a grand jury investigation preceding the return of a superseding indictment, a U.S. District Judge ruled that three DOJ attorneys abused the grand jury process by using the grand jury to memorialize testimony of otherwise unavailable witnesses and to prepare the case for trial.

OPR initiated an investigation and obtained separate written responses from the DOJ attorneys. The government appealed the ruling of the district court, and the court of appeals reversed, holding that the DOJ attorneys properly used the grand jury to investigate additional crimes by the defendant. Based on the results of its investigation, OPR concluded that the DOJ attorneys did not commit professional misconduct or exercise poor judgment, but acted appropriately under the circumstances.

8. Abuse of Prosecutive Authority. A district court declared a mistrial, and later dismissed the case with prejudice, after a juror reported witnessing the arrest of a defense witness near the courthouse during the lunch break following her testimony. The court ruled that the DOJ attorney committed prosecutorial misconduct by causing the witness’s arrest under circumstances where a juror’s presence was foreseeable. The court acknowledged that grounds existed for the arrest, but it found the DOJ attorney’s explanation for the timing of the arrest -- that neither she nor the police knew where the witness lived -- insufficient to establish “exigent circumstances” warranting the witness’s arrest in close proximity to the courthouse and the jury.

OPR conducted an investigation and concluded that the prosecutor did not commit professional misconduct or exercise poor judgment in connection with the witness’s arrest. OPR found that the prosecutor did not intend for the witness to be arrested in the presence of a juror and that she did not otherwise act for the purpose of either provoking a mistrial or harassing the witness or the defendant. Rather, OPR found that she made a mistake by directing the police to arrest the witness in a public area in close proximity to the courthouse during a lunch recess while the trial was ongoing.

9. Late Filing; Missed Deadlines. OPR received an allegation that a DOJ attorney filed an appellate brief relating to a plaintiff’s entitlement to attorney’s fees more than six months late. The court of appeals accepted the brief, but at oral argument the court demanded an explanation for what had happened, and in its decision the court made reference to the government’s failure to file other briefs in both the district court and the court of appeals.

OPR conducted an investigation and concluded that the DOJ attorney acted appropriately in filing a late ex parte motion to continue a hearing in the district court; that she displayed poor judgment by filing an untimely motion in the court of appeals for an extension of time to file the merits brief; and that she engaged in professional misconduct both in filing the appellate brief on the merits more than ten days late, and in filing the brief on attorney’s fees more than six months late, both in reckless disregard of her obligation to diligently represent the interests of the United States.

The DOJ attorney was suspended for three days. OPR referred its findings of professional misconduct to the appropriate state bar authorities.

10. Improper Cross-Examination and Improper Closing Argument. A court of appeals ruled that a DOJ attorney (Attorney A) acted improperly by questioning a defendant on cross-examination about a prior conviction in a manner that appeared to overstate the facts underlying the conviction. The court of appeals ruled further that a second DOJ attorney (Attorney B) committed professional misconduct by referring in closing argument to a fact relating to the prior conviction that had not been introduced into evidence.

OPR conducted an investigation and found that there was a sufficient factual predicate for the questions asked on cross-examination by Attorney A about the prior conviction. OPR concluded that Attorney A acted appropriately under the circumstances in using information about the past conviction to impeach the defendant’s credibility. OPR found further that Attorney B made a mistake by referring in closing argument to a fact that had not been introduced into evidence. The fact had been reflected in a question asked in cross-examination, but the defendant neither admitted nor denied it. OPR concluded that Attorney B’s mistake did not constitute professional misconduct or reflect poor judgment, but rather was an excusable human error, given that Attorney B exercised reasonable care, had no transcript of the trial testimony, and had limited time to prepare his closing argument.

11. Disclosure of Confidential Information; Internal Deliberations. A DOJ attorney was referred to OPR for allegedly disclosing confidential information without authorization to an attorney for a defendant. The referral alleged that the DOJ attorney disclosed to the defense attorney the internal, privileged views of several DOJ attorneys who questioned the indictment or declined to prosecute the case.

OPR conducted an investigation and concluded that the DOJ attorney engaged in professional misconduct by disclosing confidential information without authorization, thus acting in reckless disregard of his obligation under state bar rules to preserve client confidences. The DOJ attorney received a reprimand. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

12. Improper Opening Statement. A court of appeals ruled that a DOJ attorney made improper remarks in his opening statement by praising the abilities of defense counsel. The court of appeals reasoned that the DOJ attorney’s reference to defense counsel as a tremendous attorney was an attempt to undermine the credibility of the defense case.

OPR conducted an investigation and concluded that the comments in question could not reasonably be viewed as a backhanded compliment designed to undermine counsel’s credibility with the jury. Accordingly, OPR concluded that the prosecutor neither committed professional misconduct nor exercised poor judgment.

13. Failure to Comply With Court Orders; Competent Representation. OPR received allegations that a DOJ attorney failed to file responsive pleadings, failed to comply with the Speedy Trial Act, and failed to comply with court orders and Department directives in a number of cases.

OPR conducted an investigation and concluded that the DOJ attorney repeatedly missed filing deadlines in numerous cases. OPR concluded further that the attorney violated the Speedy Trial Act by failing to respond to various pretrial motions, despite a court-imposed deadline, until well after the expiration of the 70-day period by which the defendant was to be brought to trial. OPR concluded that the DOJ attorney engaged in intentional professional misconduct, knowing that the consequence of his conduct would be a violation of his duty to diligently represent the interests of his client.

The DOJ attorney was removed from service with the Department. OPR referred its findings of professional misconduct to the appropriate state bar authorities.

14. Late Filing; Missed Deadlines. A magistrate judge issued an order imposing monetary sanctions against an attorney detailed to the Department from another agency that had assumed responsibility for handling cases involving that agency. Shortly after the newly initiated program was implemented, filing deadlines were missed in four cases. Following a show cause hearing, the magistrate judge imposed monetary sanctions, but directed that payment be deferred for one year and that the order imposing sanctions be vacated and dismissed if the attorney met all subsequent deadlines and court orders.

OPR conducted an investigation and concluded that the problems identified by the court were the result of the attorney’s lack of litigation experience and mistakes made in implementing the new litigation program. Neither the litigating component nor the agency appreciated the significance of agency attorneys’ lack of prior litigation experience. OPR concluded further that the agency delegated too much responsibility to its paralegals instead of placing the responsibility on its attorneys, and failed to put in place a workable docketing system to track the cases.

OPR concluded that the problems identified by the court were isolated problems, not a pattern of misconduct, and that, once identified, the litigating component, agency, and attorney rectified the problems.

15. Failure to Comply With Immigration Court Procedures. OPR received an allegation that an Immigration Judge engaged in professional misconduct by interrupting the direct testimony of the respondent, by making credibility determinations before the respondent completed his testimony, and by having the respondent’s counsel removed from the courtroom for obstreperous conduct. In addition, the Immigration Judge allegedly proceeded with the hearing after removing respondent’s counsel, leaving the respondent unrepresented.

OPR conducted an investigation and found that the Immigration Judge acted appropriately under the circumstances with respect to all but the final allegation. OPR found that Immigration Judges are authorized by statute to cross-examine respondents, and that the Immigration Judge exercised that authority appropriately. OPR found further that the Immigration Judge voiced skepticism but did not make credibility findings prior to the completion of the respondent’s testimony. OPR also found that the belligerent and obstreperous conduct of respondent’s counsel justified the extraordinary step of having counsel removed from the courtroom. However, OPR concluded that the Immigration Judge engaged in professional misconduct by proceeding with the hearing after removing respondent’s counsel, in reckless disregard of the respondent’s statutory right to be represented by counsel. The respondent invoked that right by retaining counsel, but was deprived of it, through no fault of his own, when his counsel was removed from the courtroom. The Immigration Judge did not ask whether the respondent would prefer to continue the hearing at a later date; instead, she informed the respondent that the hearing would continue with the respondent representing himself.

The Immigration Judge left the Department before OPR completed its investigation, so no disciplinary action was taken. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

16. Discovery Violation; Brady. A district court criticized a DOJ attorney for violating Brady and Giglio by failing to disclose her notes from an interview of a confidential informant that contained potential impeachment evidence.

OPR conducted an investigation and determined that the DOJ attorney was a civil attorney on special assignment to prosecute criminal cases, and that her lack of criminal litigation and trial experience made her unaware that her personal notes had to be disclosed. Once she realized her mistake, she produced the documents. OPR concluded that because of her lack of experience, the DOJ attorney did not commit professional misconduct or exercise poor judgment, but rather made a mistake.

17. Improper Closing Argument; Vouching for Government’s Witnesses. A court of appeals ruled that certain statements made by a DOJ attorney during the government’s closing argument constituted improper vouching for the credibility of two government witnesses. The attorney argued that witnesses cooperating with the government had to plead guilty to both charged conspiracies, and that he could “guarantee” that the government did not offer two-for-one plea deals.

OPR conducted an investigation and concluded that the DOJ attorney did not engage in professional misconduct or exercise poor judgment, but rather made a mistake by arguing that he could personally “guarantee” the government’s plea practices. OPR found that similar language was deleted from the DOJ attorney’s draft closing argument upon the suggestion of a supervisor, but that the DOJ attorney overlooked the edit because he delivered his closing argument largely from memory. With regard to the reference to two-for-one plea deals, OPR found that the DOJ attorney did not intend that comment to vouch for the witnesses’ credibility, but rather intended to rebut the defense argument that the government witnesses had gotten a special deal in exchange for their testimony. OPR concluded that, while this language may have violated case law within the circuit, that precedent was not clear and unambiguous. Nevertheless, OPR concluded that the DOJ attorney exercised poor judgment because he made the comment despite advice from his supervisor that the wording was problematic. OPR referred this matter to the DOJ attorney’s supervisors for consideration in a management context.

18. Eliciting Wrongful Act Testimony. A court of appeals ruled that a DOJ attorney engaged in prosecutorial misconduct by eliciting testimony from a witness on redirect examination that violated the district court’s in limine order that prohibited evidence of the defendant’s prior crimes.

OPR conducted an investigation and concluded that the district court’s order did not clearly and unambiguously prohibit testimony about one of the defendant’s prior crimes on redirect examination, and that the defendant opened the door to such testimony during his cross-examination of the witness. OPR concluded that the better practice would have been for the DOJ attorney to obtain clarification from the court prior to proceeding with his redirect examination. However, OPR concluded that the attorney’s decision to elicit the testimony did not constitute professional misconduct or the exercise of poor judgment.

19. Loss of Evidence or Exhibits; Subornation of Perjury; Misrepresentation/Misleading the Court and Opposing Counsel. OPR investigated allegations of misconduct that related to the accuracy and completeness of an opposition pleading and affidavit filed by the government. In addition, OPR investigated allegations that previously missing evidence was improperly handled by the DOJ attorney.

OPR concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment in preparing the government’s opposition and affidavit. However, OPR concluded that the DOJ attorney acted in reckless disregard of her obligation to correct material false testimony when other evidence was presented to her suggesting that the affidavit contained misstatements. OPR concluded further that the DOJ attorney engaged in intentional professional misconduct by attempting to conceal the evidence.

Disciplinary proceedings are pending.

20. Lateness; Failure to Comply With Court Order. A district court sanctioned a DOJ attorney for failing to comply with a court order requiring him to timely file a stipulation informing the court of the date and time the parties were going to conduct a site inspection.

OPR conducted an investigation and found that the DOJ attorney did not commit professional misconduct, but rather exercised poor judgment when he decided that he did not need to file a stipulation by the specified date because the parties had met the day that the stipulation was due and inspected the site. OPR referred this matter to the Department attorney’s supervisors for consideration in a management context.

21. Unauthorized Disclosure of Sensitive Information. At the request of senior DOJ and FBI officials, OPR and FBI/OPR conducted a joint investigation of the apparent unauthorized disclosure to the media of sensitive, non-public information regarding a potential criminal investigation. Despite an extensive investigation, OPR could not identify who was responsible for the unauthorized disclosure. Although certain records established that at least some Department officials communicated with the media during the relevant period, those officials and the other individuals with access to the information denied under oath being the source. The joint investigation did not find facts sufficient to overcome the denials or to identify the individual responsible for the disclosure. OPR also found that although the disclosure likely violated the rule governing the maintenance of client confidences, there was no tangible harm to the potential criminal investigation. Given the absence of additional and promising investigative leads, and the lack of tangible harm, OPR concluded that further investigation of the disclosure was unwarranted and closed the investigation.

22. Lateness; Failure to Comply With Court Order. OPR received allegations that a DOJ attorney failed in one case to timely respond to requests for admissions and a motion for summary judgment; failed in another case to appear for a settlement conference; and failed in a third case to reopen a matter after an agreed-upon settlement proposal was rejected by the opposing party and the court had closed its file.

OPR conducted an investigation and concluded that the DOJ attorney acted in reckless disregard of his obligation to act with reasonable diligence and promptness in each of the three cases. OPR concluded that the DOJ attorney engaged in a pattern of actions in reckless disregard of his obligation to diligently represent the interests of his client.

The DOJ attorney resigned from the Department prior to the completion of OPR’s investigation. OPR referred its findings of professional misconduct to the appropriate state bar authorities.

23. Closing Argument; Improper Statement to Jury. OPR became aware of a court of appeals decision finding that a DOJ attorney made improper comments in her rebuttal closing argument by stating that the government could not force witnesses to testify and that all witnesses testified voluntarily.

OPR conducted an investigation and found that the DOJ attorney did not intend to misstate the law or mislead the jury. The DOJ attorney was not familiar with that area of the law and did not consider carefully her statement. When the court raised the issue, the DOJ attorney admitted her mistake. Accordingly, OPR concluded that the DOJ attorney made a mistake, but did not commit professional misconduct or exercise poor judgment, during her rebuttal closing argument.

24. Use at Trial of Allegedly Prejudicial Collateral Evidence. A court of appeals ruled that two DOJ attorneys improperly impugned the defendant by referring to and introducing prejudicial evidence about (1) a notorious crime family, even though the defendant’s connection to the family was extremely limited; (2) the defendant’s prior history as a drug dealer; and (3) the organized crime connections and prior incarceration of the defendant’s wife.

OPR conducted an investigation and concluded that the two DOJ attorneys did not violate any clear and unambiguous obligations by introducing the evidence, because it fell within the latitude of admissibility afforded by circuit precedent at the time the case went to trial.

25. Improper Examination of a Witness; Improper Closing Argument. A court of appeals ruled that a DOJ attorney engaged in professional misconduct when he impeached the defendant on cross-examination with the hearsay statement of his wife. The DOJ attorney also asked the defendant whether he was aware that his wife could not be compelled to testify against him, thus commenting on the spousal privilege. Finally, in closing argument, the DOJ attorney told the jury that the government would not solicit false testimony.

OPR conducted an investigation and concluded that the DOJ attorney committed professional misconduct when he acted in reckless disregard of his obligations not to use hearsay evidence to impeach the defendant on cross-examination, not to comment on the marital privilege, and not to engage in witness vouching.

Disciplinary proceedings are pending.

OPR Inquiries in Fiscal Year 2002

Characteristics of Inquiries Opened in Fiscal Year 2002: The sources for the 251 matters designated as inquiries are set forth in Table 3. The nature of the 352 allegations contained in those inquiries is set forth in Table 4.

Source	Complaints Leading to Inquiries	Percentage of All Inquiries
Sources of Complaints in Inquiries Opened in FY 2002
Judicial opinions & referrals ⁽⁹⁾	49	19.5%
Private attorneys	37	14.7%
Department components	101	40.2%
Private parties	40	16.0%
Other agencies	11	4.4%
Other sources	13	5.2%
Total	251	100.0%

Type of Allegation	Allegations in inquiries	Percentage of All Allegations in Inquiries
Misconduct Allegations in Inquiries Opened by OPR in Fiscal Year 2002, by Type of Allegation
Abuse of authority, including abuse of prosecutorial discretion	114	32.4%
Improper remarks to a grand jury, during trial or in pleadings	22	6.2%
Misrepresentation to the court and/or opposing counsel	23	6.5%
Unauthorized disclosure of confidential information, including grand jury information protected by Rule 6(e), Fed. R. Crim. P.	33	9.4%
Failure to perform/dereliction of duty	25	7.1%
Failure to comply with Brady, Giglio or Rule 16 discovery	18	5.1%
Failure to comply with court orders or federal rules	2	0.6%
Conflict of interest	11	3.1%
Failure to comply with DOJ rules and regulations	19	5.4%
Subornation of perjury/failure to correct false testimony	12	3.4%
Interference with defendant's rights	8	2.3%
Lateness (i.e., missed filing dates)	2	0.6%
Lack of fitness to practice law	18	5.1%
Improper contact with represented party	3	0.9%
Failure to comply with Congressional discovery requests, including subpoenas	0	0.0%
Unauthorized practice of law	2	0.6%
Other ⁽¹⁰⁾	40	11.3%
Total	352	100.0%

The data demonstrate that the matters opened as “inquiries” during fiscal year 2002 were remarkably diverse. Many of those matters do not involve a complaint against a Department attorney. For example, some inquiries were opened based on allegations of whistleblower retaliation made by FBI employees, or on memoranda memorializing prosecutive advice given by OPR attorneys in connection with matters under investigation by FBI/OPR. Others involve requests for advice from Department officials regarding their obligations to report suspected unethical conduct by private attorneys. Thus, only limited comparisons may be made between these data and information regarding OPR investigations.

Inquiries Closed in Fiscal Year 2002: OPR closed a total of 253 inquiries in fiscal year 2002, encompassing a total of 363 separate allegations. Thirty-five of those matters were converted to full investigations after evidence was developed that further investigation was required; 124 matters were closed because OPR concluded that the allegations were without merit or that further investigation was unlikely to result in a finding that the attorney(s) engaged in professional misconduct. An additional forty-nine matters were determined to be more appropriately handled by another component or agency. The remaining matters were closed for a variety of reasons, ranging from determinations that the complaint raised management rather than professional misconduct issues, to findings that the matters had already been resolved by other Department of Justice components.

Examples of Inquiries Closed in Fiscal Year 2002

1. Unprofessional or Unethical Behavior. OPR received an allegation that a DOJ attorney engaged in misconduct in the course of representing the government in a bankruptcy case. The allegation was raised during the proceedings, and the court denied the claim of misconduct. Because OPR generally does not conduct inquiries into allegations that have been considered and rejected by a court, OPR closed the matter without further investigation.

2. Abuse of Prosecutive or Investigative Authority. OPR received an anonymous complaint that a DOJ attorney dismissed a criminal case that should have been prosecuted, that the DOJ attorney gave grand jury material to a defense attorney, and that the DOJ attorney allowed statutes of limitations to expire. No facts were provided in the anonymous complaint to support the allegations of misconduct. Based on a review of the unsupported allegations made by the anonymous complainant, and with no way to contact the complainant for additional information, OPR closed the matter on the ground that further investigation was unlikely to result in a finding of professional misconduct.

3. Pre-Hyde Amendment Claim. OPR received a complaint from defense counsel who alleged that DOJ attorneys acted vexatiously and in bad faith in connection with a civil lawsuit. The allegations related primarily to discovery disputes arising out of the parties’ differing interpretations of the scope of the lawsuit, the appropriate burden of proof, and the legal merits of the case. Litigation was ongoing, and the defendant had raised the same allegations with the court. Because the litigation was ongoing and defense counsel indicated he would pursue his allegations under the Hyde Amendment if he prevailed in the litigation, OPR closed this matter pending resolution of the litigation or any misconduct finding by the court.

4. Misrepresentations in State Bar Referral. Two DOJ attorneys referred a defense attorney to his state bar for failure to appear at hearings. The defense attorney alleged to OPR that the DOJ attorneys made factual misrepresentations in the referral letter. The defense attorney requested that OPR state its position on the merits of the matters before the state bar and the court. OPR initiated an inquiry and reviewed relevant documents, including the attorney’s letter and supporting materials. OPR found that the DOJ attorney’s allegations were factually correct, and that the defense attorney’s disagreement with the government’s legal position was not a basis for an investigation by OPR.

5. Failure to Find Substantial Assistance; Failure to Prosecute. OPR received a complaint from a defendant who sought a reduction in his sentence based on substantial assistance, and who alleged that DOJ attorneys failed to investigate information he provided because they were “conspiring” with a local union to allow the statute of limitations to expire on crimes that he alleged had occurred. OPR initiated an inquiry and reviewed the defendant’s complaint and other relevant documents. Based on its review of these materials, OPR found that the materials submitted by the defendant did not support his allegations of misconduct. Further, OPR noted that the defendant, who was represented by counsel, entered into a plea agreement with the government on the recommendation of his counsel.

6. State Bar Complaint by Alleged Subject of an Ongoing Criminal Investigation. OPR was advised by state bar disciplinary authorities and a Department component that a complaint had been filed with the bar by an individual who alleged that a DOJ attorney had made him the target of an ongoing criminal investigation due to personal animus. The bar complaint further alleged that the DOJ attorney had improperly urged an incarcerated inmate to inculpate the complainant during a proffer of evidence. The component employing the DOJ attorney asked OPR to review the matter and to request that the bar stay its investigation, because the attorney could not respond to the bar without disclosing confidential information.

The bar agreed to stay its investigation and to allow OPR to proceed. Based on the results of its investigation, OPR concluded that there was no evidence of professional misconduct by the DOJ attorney and closed its inquiry. OPR’s conclusions were sent to the bar and to the complainant. The bar dismissed the complaint against the DOJ attorney based on its review of the results of the OPR investigation and conclusions. The complainant was later indicted on several felony charges and convicted after trial.

7. Abuse of Prosecutive and Investigative Authority. OPR received a complaint that two DOJ attorneys and an FBI agent engaged in a pattern of misconduct by (1) directing illegal searches of the complainant’s personal property; (2) using grand jury subpoenas after indictment to gather evidence for trial; (3) issuing a vague and overly broad subpoena; and (4) using their positions to threaten and harass the complainant. Based on the results of its inquiry, OPR found that the allegations were not supported by the evidence and that the DOJ attorneys and the agent acted appropriately under the circumstances.

8. Misrepresentation to the Court. A defense attorney complained to OPR that, in a habeas corpus proceeding, a DOJ attorney misrepresented to the court the substance of a communication between the defense attorney and the DOJ attorney regarding the performance of the defendant’s prior counsel at trial. Based upon the results of its inquiry, which included a review of the pertinent pleadings and hearing transcripts, OPR concluded that there was no basis for the allegation that the DOJ attorney made any material misrepresentation to the court. Accordingly, OPR closed the matter without further investigation.

9. Threat of Harm. OPR received a complaint from a federal inmate that a DOJ attorney threatened to have him killed. Despite two requests, the prisoner refused to provide the substantiation he claimed to have in support of his allegation. The inmate’s final letter, in which he refused to provide corroboration for his claim unless the government took action to reduce his lengthy sentence, made clear that his primary interest was in obtaining a sentence reduction, and that alleging a threat by the DOJ attorney was a means to that end. Accordingly, OPR closed the matter without further investigation.

10. Theft of Government Property. OPR received and reviewed allegations that an FBI employee had taken possession of money during a search but failed to turn in all of the money that had been seized. OPR referred the matter to FBI/OPR for investigation.

11. Improper Electronic Surveillance. OPR received a self-referral by a DOJ component notifying OPR that the prosecution of several defendants was based in part on evidence obtained pursuant to a state wiretap statute that had expired. State prosecutors, state courts, the state legislature, and federal prosecutors were all unaware that the statute had expired. In decisions denying the defendants’ motions to vacate their sentences, a federal district court concluded that the wiretap evidence was used in good faith by federal and state prosecutors. Accordingly, OPR concluded that further inquiry would not likely result in a finding of professional misconduct and closed the matter.

12. Misrepresentation/Misleading the Court; Misrepresentation to Opposing Counsel; Subornation of Perjury. Opposing counsel in civil litigation alleged that a DOJ attorney misled the court and opposing counsel. Defense counsel could have, but did not, raise the allegations during the course of the litigation. OPR concluded that the allegations, raised on the eve of trial, appeared to be a litigation tactic and closed the matter.

13. Failure to Comply with DOJ Rules and Regulations; Abuse of Investigative Authority. Defense counsel alleged that three DOJ attorneys failed to follow Department procedures when seeking information about a retainer a defendant paid his attorney, and engaged in overreaching and improper tactics when questioning the defense attorney before the grand jury. OPR conducted an inquiry and concluded that the DOJ attorneys followed the procedures prescribed by the United States Attorneys’ Manual, including attempting to obtain the information voluntarily and securing prior approval from the Assistant Attorney General for the Criminal Division before issuing subpoenas to the defense attorney and his law firm. Furthermore, based on a review of the grand jury transcript, OPR concluded that the DOJ attorneys did not act improperly in questioning the defense attorney before the grand jury.

14. Negligence; Improper Performance of Duties. A federal district judge directed a Department component to refer to OPR his criticism of two DOJ attorneys for their failure to produce witnesses at trial. After reviewing the transcript, the written responses of the DOJ attorneys, and other materials, OPR found that the DOJ attorneys issued subpoenas to the witnesses five days prior to trial and took steps to ensure that the witnesses were served, but the witnesses could not be located. Although the DOJ attorneys knew of the trial date a month in advance, they waited to issue subpoenas, in part, because they had reason to believe that advance notice of the trial date could subject the witnesses to harassment by the defendant. OPR concluded that it was unlikely that further investigation would lead to a finding that the DOJ attorneys engaged in professional misconduct and closed the matter.

15. Misrepresentations to the Court; Discovery Violations; Witness Intimidation. OPR received a complaint by a defendant that, in the course of investigating and prosecuting criminal charges against him, a DOJ attorney made misrepresentations to the court; filed motions that misrepresented the evidence and the issues in the case; committed Brady and Jencks Act violations; and engaged in witness intimidation. OPR reviewed pleadings in the criminal prosecution and found that most of the defendant’s complaints were raised in his motion to dismiss and were still pending before the district court. To the extent that certain allegations were not specifically raised in the motion to dismiss, the defendant had ample opportunity during the lengthy proceedings to raise them with the court. Because OPR generally does not conduct inquiries into allegations that are being addressed, or could have been addressed, by the court, OPR declined to review the allegations and closed the matter.

16. Criminal Conduct. OPR received a referral from a DOJ component that one of its employees had ties to organized crime and might have been involved in narcotics transactions and contract murders while previously holding a state law enforcement position. OPR initiated an inquiry and, based on a preliminary review, referred the allegations to the Criminal Division for a determination of whether a criminal investigation was warranted.

17. Abuse of Prosecutive Authority; Misuse of Official Position. OPR received allegations from unidentified private citizens who alleged that two Department components committed several acts of misconduct in defending a civil lawsuit against a federal agency. OPR initiated an inquiry, and based on a preliminary review of the allegations, concluded that the court handling the lawsuit was the proper forum for the allegations. OPR generally does not conduct inquiries into allegations that have been or could have been addressed by the court, and OPR closed its inquiry without further investigation.

18. Abuse of Authority; Misuse of Office. A Department component referred to OPR a local police department report concerning a DOJ attorney’s alleged attempt to use his Department credentials to avoid a traffic citation. According to the report, the DOJ attorney became belligerent during a lawful traffic stop and claimed to be a “federal agent.” The attorney also reportedly told the police officer who stopped him that he was a “federal prosecutor involved in five grand jury investigations” and that he had arrest powers. OPR concluded that the matter fell within the jurisdiction of the Office of Inspector General and referred it to that component.

19. Misleading the Court. OPR received allegations that a DOJ attorney misrepresented to a district judge the evidence and arguments presented to a magistrate judge at a prior detention hearing by a different DOJ attorney, failed to notify defense counsel of the government’s request for a stay of the defendant’s release, and filed the request for a stay with the district court without complying with the local rules. OPR conducted an inquiry and concluded that further investigation was warranted. Accordingly, the matter was converted to an investigation.

20. Abuse of Investigative and Prosecutive Authority; Subornation of Perjury; Unauthorized Disclosure of Grand Jury Materials. OPR received a complaint that a litigating component authorized the investigation and prosecution of a state police officer as a favor to that officer’s superintendent in retribution for an investigation by the officer of a criminal complaint asserting criminal charges against the superintendent. The complaint alleged further that a DOJ attorney permitted witnesses to commit perjury at trial, and that the DOJ attorney violated Federal Rule of Criminal Procedure 6(e) by authorizing the use of grand jury materials in administrative proceedings involving the defendant police officer.

OPR conducted an inquiry and concluded that the litigating component and the DOJ attorney did not commit professional misconduct or exercise poor judgment, but acted appropriately under the circumstances. First, a review of the record showed that the prosecution was authorized solely on the evidence against the police officer. Second, the evidence did not support the allegation that witnesses perjured themselves. Third, OPR found no support for the allegation that the DOJ attorney violated Rule 6(e). The defense used grand jury transcripts – provided to them as Jencks Act material – during a post-trial administrative proceeding. The DOJ attorney, after researching the law, reasonably concluded that he could not compel the return of those transcripts or limit their use in other proceedings.

21. Defiance of Court Order. A district court judge asserted in a memorandum to a DOJ attorney that the attorney had advised the U.S. Marshals Service (USMS) to refrain from acting on the judge’s writ for a state prisoner. Based on the results of its inquiry, which included a review of the judge’s memorandum and of the DOJ attorney’s letter responding to the judge’s criticism, OPR concluded that there was no evidence that the DOJ attorney instructed the USMS to disobey the court’s order, and that further investigation was not warranted. The court took no further action after receiving the DOJ attorney’s explanatory letter.

22. Misleading the Court and Improper Search. OPR received a copy of a motion to vacate judgments, pursuant to Federal Rule of Civil Procedure 60(b)(6), arguing that newly discovered evidence demonstrated that evidence and arguments previously presented by the government were tainted by fraud. Judgments were entered in the late 1960s and early 1970s. OPR reviewed the motion to vacate and the government’s response, and concluded that the allegations had no merit. Accordingly, OPR closed the matter without further investigation.

23. Retaliation. OPR received a complaint from a DEA employee that DEA management had retaliated against him and engaged in a broad range of administrative misconduct. OPR determined that the matter came within the jurisdiction of the Office of the Inspector General and referred the matter to that component.

24. Destruction of Evidence. OPR received an allegation that a DOJ attorney destroyed evidence during the pendency of a case. After conducting an inquiry, OPR closed the matter, finding that the evidence had not been destroyed, but was in the possession of an agency attorney, who the court had instructed to safeguard the evidence.

25. Subornation of Perjury. OPR received an allegation that DOJ attorneys suborned perjury in a criminal proceeding against the complainant’s husband. After a preliminary inquiry, OPR determined that the claims had been or could have been submitted to the trial court for consideration. OPR generally does not conduct inquiries into allegations that have been or could have been addressed by the court. Accordingly, OPR closed the matter without further investigation.

Conclusion

FootNote

1.

2. This category includes self-reporting by Department employees of serious judicial criticism and judicial findings of misconduct.

3. These matters include allegations of retaliation, fraud, and theft.

4. OPR finds intentional professional misconduct when it concludes that an attorney violated an obligation or standard by (1) engaging in conduct with the purpose of obtaining a result that the obligation unambiguously prohibits; or (2) engaging in conduct knowing its natural or probable consequence, and that consequence is a result that the obligation or standard unambiguously prohibits.

5. OPR finds that an attorney has engaged in professional misconduct based upon the reckless disregard of a professional obligation or standard when it concludes (1) that the attorney knew, or should have known, based on his or her experience and the unambiguous nature of the obligation or rule of conduct, of an obligation or rule of conduct; (2) that the attorney knew, or should have known based on his or her experience and the unambiguous applicability of the obligation or rule of conduct, that the attorney’s conduct involved a substantial likelihood that he or she would violate or cause a violation of the obligation or rule of conduct; and (3) that the attorney nevertheless engaged in the conduct, which was objectively unreasonable under all the circumstances.

6. OPR finds that an attorney has exercised poor judgment when, faced with alternate courses of action, the attorney chooses a course that is in marked contrast to the action that the Department may reasonably expect an attorney exercising good judgment to take. Poor judgment differs from professional misconduct in that an attorney may act inappropriately and thus exhibit poor judgment even though he or she may not have violated or acted in reckless disregard of a clear obligation or standard. In addition, an attorney may exhibit poor judgment even though an obligation or standard at issue is not sufficiently clear and unambiguous to support a finding of professional misconduct.

7. OPR finds that an attorney has made a mistake when the attorney’s conduct reflected excusable human error despite the exercise of reasonable care under the circumstances.

8. To protect the privacy of the Department attorneys and other individuals involved in the investigations summarized, OPR has omitted names and identifying details from these examples. In addition, OPR has used male pronouns in even-numbered examples and female pronouns in odd-numbered examples regardless of the actual gender of the individual involved.

9. This category includes self-reporting by Department employees and officials of judicial criticism and judicial findings of misconduct.

10. These matters include allegations of retaliation, fraud, and theft.

Updated January 12, 2022

DOJ:OPR: Fiscal Year 2002 Annual Report

U.S. Department of Justice Office of Professional Responsibility Fiscal Year 2002 Annual Report

U.S. Department of Justice
Office of Professional Responsibility

Fiscal Year 2002 Annual Report