Source	Complaints Leading to Investigations	Percentage of All Investigations
Sources of Complaints in Investigations Opened in FY 2003
Judicial opinions & referrals ⁽¹⁾	47	51.1%
Private attorneys	9	9.8%
Department components	26	28.2%
Private parties	7	7.6%
Other agencies	2	2.2%
Other sources	1	1.1%
Total	92	100 %

OPR opened a total of ninety-two new investigations in fiscal year 2003, a 33% increase over the number of investigations opened in fiscal year 2002. These ninety-two investigations involved 133 separate allegations of misconduct. The subject matter of the 133 allegations is set out in Table 2.

Type of Allegation	New Allegations Investigated in FY 2003	Percentage of All Allegations in Investigations
Misconduct Allegations in Investigations Opened by OPR in Fiscal Year 2003, by Type of Allegation
Abuse of authority, including abuse of prosecutorial discretion	25	18.8%
Improper remarks to a grand jury, during trial or in pleadings	12	9.0%
Misrepresentation to the court and/or opposing counsel	17	12.8%
Unauthorized disclosure of confidential information, including grand jury information protected by Rule 6(e), Crim. R. Fed. P.	14	10.5%
Failure to perform/dereliction of duty	12	9.0%
Failure to comply with Brady, Giglio or Rule 16 discovery	7	5.3%
Failure to comply with court orders or federal rules	11	8.3%
Conflict of interest	5	3.8%
Failure to comply with DOJ rules and regulations	12	9.0%
Subornation of perjury/failure to correct false testimony	1	0.7%
Interference with defendant's rights	2	1.5%
Lateness (i.e., missed filing dates)	4	3.0%
Lack of fitness to practice law	3	2.3%
Improper contact with represented party	3	2.3%
Failure to comply with Congressional discovery requests, including subpoenas	0	0.0%
Unauthorized practice of law	1	0.7%
Other ⁽²⁾	4	3.0%
Total	133	100.0%

Investigations Closed in Fiscal Year 2003: OPR closed a total of ninety-eight investigations in fiscal year 2003, an increase of 29% over fiscal year 2002. Six of the investigations closed involved non-attorney subjects. Of the ninety-eight investigations that were closed during the fiscal year, OPR found professional misconduct in thirteen, or approximately 13%, of the matters. Of the thirteen matters in fiscal year 2003 in which OPR found professional misconduct, three of those matters involved at least one finding of intentional professional misconduct by a Department attorney.⁽³⁾ In the remaining ten matters, OPR found that a Department attorney engaged in professional misconduct by acting in reckless disregard of an applicable obligation or standard.⁽⁴⁾ In one of those matters, OPR also found that a non-attorney Department employee acted in reckless disregard of his obligations. The proportion of investigations resulting in findings of professional misconduct on the part of Department attorneys was lower than in fiscal year 2002, in which OPR found professional misconduct in 30% of the investigations it closed, but similar to fiscal year 2000, in which OPR found professional misconduct in 15% of its investigations.

Disciplinary action was initiated against twelve of the thirteen attorneys found by OPR to have engaged in professional misconduct. Two attorneys were suspended without pay for a period of time; proposals to suspend three attorneys are pending; five attorneys received written reprimands; and one attorney for whom a suspension was proposed received no disciplinary sanction from the deciding official. In addition, OPR’s recommendations for disciplinary action against one attorney remained pending at the close of fiscal year 2003; the recommendation in that case ranged from a reprimand to a suspension for three days. In one matter in which OPR found professional misconduct, the subject attorney resigned from the Department prior to the completion of the OPR investigation. One non-attorney also was found to have engaged in professional misconduct, and disciplinary action was initiated against that person; OPR’s recommendation in that case ranged from a seven-day to a twenty-day suspension.

OPR also closed nineteen investigations, or approximately 19%, with at least one finding that an attorney exercised poor judgment.⁽⁵⁾ Six of those nineteen matters also involved findings of professional misconduct, and are included in the thirteen matters that contained findings of professional misconduct. Twenty-eight matters, or approximately 29%, involved at least one finding that an attorney had made a mistake.⁽⁶⁾ Three of those twenty-eight matters also involved a finding of poor judgment. Thus, of the ninety-eight matters closed, OPR found professional misconduct or poor judgment in twenty-six matters, or approximately 27%.

Examples of Investigations Closed in Fiscal Year 2003⁽⁷⁾

1. Vindictive Prosecution. A district court dismissed a Continuing Criminal Enterprise (CCE) count on the ground of vindictive prosecution. The defendant had been convicted in one district for narcotics conspiracy under 21 U.S.C. § 846, and then indicted in another district for a related conspiracy under that provision. After the second indictment was returned, the defendant filed a motion to dismiss that indictment on grounds of double jeopardy. Thereafter, the government filed a superseding indictment charging the defendant with a CCE count under 21 U.S.C. § 848(b), carrying a mandatory life sentence. The court found that the return of the superseding indictment under these circumstances raised a rebuttable presumption that the government had acted vindictively in order to penalize the defendant for exercising his right to file a double-jeopardy motion. Finding that the government did not rebut the presumption, the court dismissed the CCE count.

OPR conducted an investigation and found that the DOJ attorney acted appropriately under all the circumstances, and that the government brought the superseding CCE indictment in good faith based upon an appropriate analysis of applicable case law and the facts of the cases.

2. Failure to Comply with DOJ Rules and Regulations. OPR received an allegation that a DOJ attorney failed to follow the established procedure of his office when he agreed to permit a defendant to remain free on bail overnight and report for incarceration the next morning, following his conviction at trial on a drug offense with a mandatory five-year sentence, rather than being taken into custody immediately. Thereafter, the defendant failed to report, and eventually was found in a hospital in another state under treatment for a drug overdose.

OPR conducted an investigation and found that, although there was a statutory requirement that the defendant be incarcerated immediately after conviction for this offense, the judges in the district did not always adhere strictly to that requirement. Moreover, OPR found that the policy of the litigating component with respect to whether prosecutors could agree to the defendant’s release in such situations had not been clearly established at the time of this incident. Accordingly, OPR concluded that the DOJ attorney did not commit professional misconduct because he did not violate a clear and unambiguous obligation, but that he exercised poor judgment by agreeing to the defendant’s release without seeking the approval of any supervisor and without taking into account the potential consequences if the defendant did not appear for incarceration as promised.

3. Failure to Correct False Testimony. A court of appeals ruled that a DOJ attorney engaged in professional misconduct by failing to correct the testimony of a government witness that the DOJ attorney knew was false. During direct examination, the witness testified that he had not entered into a plea agreement with the government when, in fact, he had. The DOJ attorney attempted to correct the false testimony by eliciting from the witness the terms of the plea agreement to demonstrate to the jury that he had entered into an agreement. During cross-examination on the terms of the plea agreement, however, the witness denied that he would receive any reduction in his sentence by testifying. The witness asserted instead that he was only required to tell the truth and did not know what to expect in exchange for his testimony, but personally hoped for leniency. On redirect, the DOJ attorney again attempted to elicit the terms of the plea agreement to correct the witness’ misleading testimony, but failed to make clear that the witness could be granted leniency in sentencing by the court based on his cooperation, or that the government could file a downward departure motion if he provided substantial assistance. The court of appeals concluded that the DOJ attorney violated the due process rights of the defendants by failing to correct the false testimony.

OPR conducted an investigation and concluded that the DOJ attorney did not commit professional misconduct or exercise poor judgment by failing to correct false and misleading testimony. Rather, OPR concluded that the DOJ attorney made a mistake in deciding to correct the false testimony by focusing her questioning on the terms of the agreement and, thereafter, by failing to clarify those terms in view of the misleading responses from the witness.

4. Hyde Amendment Claim; Vexatious Prosecution. OPR received a complaint from an individual who was indicted for violations of the Clean Water Act. After the district court suppressed much of the government’s evidence, the government dismissed the action and the defendant moved for attorneys’ fees and costs under the Hyde Amendment alleging that the DOJ attorney engaged in a pattern of vexatious conduct. The defendant alleged that the DOJ attorney did not have sufficient or credible evidence to pursue the indictment or prosecution; that he knowingly altered documents and presented false evidence and testimony to the court; that he failed to disclose exculpatory evidence pursuant to local rule and his Brady obligations; and that he pursued claims in disregard of known facts. OPR initiated an investigation, but suspended the investigation pending the outcome of the Hyde Amendment claim.

The district court ruled that the government prosecution was vexatious and awarded defendant’s company attorneys fees. The court of appeals reversed, ruling that the district court’s finding and award of fees was “clear error.”

OPR conducted an investigation and found that the DOJ attorney did not engage in professional misconduct or exercise poor judgment, but rather acted appropriately under the circumstances. OPR found there was sufficient and credible evidence to pursue the indictment and prosecution; that the DOJ attorney did not intentionally present false testimony or act in reckless disregard of his obligation not to present false testimony and evidence to the court; that he did not fail to produce exculpatory evidence during discovery in violation of the local rules or Brady; and that he did not obtain evidence or pursue claims in disregard of known facts. OPR concluded that the DOJ attorney did not act “vexatiously” under the Hyde Amendment in the prosecution of defendant.

5. Violation of Court Orders. OPR received an allegation that a DOJ attorney filed a summary judgment motion two days after the dispositive motions deadline set in two court orders. The court granted the plaintiff’s motion to strike the government’s summary judgment motion and ordered the government to pay reasonable attorneys’ fees and costs as a sanction. OPR conducted an investigation and found that the Department attorney mailed the motion to the clerk’s office on the evening it was due because the motion was not completed in time to file it before the clerk’s office closed. OPR concluded that the Department attorney’s failure to file the motion by the deadline ordered by the court constituted professional misconduct in reckless disregard of her duties to comply with court orders and to diligently represent the interests of her client.

The DOJ attorney received a reprimand. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

6. Misuse of Grand Jury Subpoenas; Improper Closing Argument. A DOJ attorney notified OPR of a court opinion that found that the attorney misused grand jury subpoenas and made an improper remark during closing argument. OPR conducted an investigation and found that the DOJ attorney did not commit professional misconduct or exercise poor judgment by interviewing grand jury witnesses prior to presenting their testimony to the grand jury. OPR found further, however, that the DOJ attorney made a mistake by misstating evidence (denying that the government encouraged the defendant to cooperate) in his rebuttal argument, and by suggesting that defense counsel, who correctly argued that the government had encouraged cooperation, had violated ethical rules concerning dishonest representations.

7. FBI Whistleblower Claim. An FBI employee alleged that a supervisor engaged in unprofessional conduct toward FBI employees, abused her authority, made false or misleading entries in time and attendance records, and compromised classified material. The employee alleged that in reprisal for his disclosures about the supervisor, the supervisor placed handwritten notes critical of his job performance in his performance file; denied him a promotion; and later reassigned him to another squad. The employee also alleged that a second supervisor participated in reassigning him to another squad and denied him a position in another division in retaliation for his disclosure that the second supervisor had conducted unauthorized interviews. The employee requested that his complaint be processed in accordance with the Whistleblower Protection Act regulations.

OPR conducted an investigation and found that no reasonable grounds existed to believe that a reprisal had been or would be taken within the meaning of the Whistleblower Protection Act. Accordingly, OPR terminated its investigation. OPR concluded that there was no evidence of a prohibited “personnel action” that constituted reprisal; that the employee did not meet his burden of supporting his allegation that he had been denied a promotion in reprisal for his disclosure; and that he did not meet his burden of supporting his allegation that he had been denied a position. Finally, OPR found that the employee’s reassignment to another squad was not reprisal because the reassignment was at the same grade level with the same benefits, the career track in the new assignment was the same as on the first squad, and there was not a significant change in his job responsibilities.

8. Failure to Notify Defense of Falsified Evidence. A district court criticized an FBI agent who admitted fabricating evidence to protect a cooperating witness from retaliation by the members of the drug conspiracy. The court of appeals affirmed the convictions, but a dissenting judge expressed concern about the actions of the FBI agent and the two DOJ attorneys assigned to prosecute the case. FBI/OPR conducted a separate investigation of the agent and concluded that he had engaged in misconduct when he created a false report in order to protect a witness after the witness was beaten by one of the defendants. OPR conducted an investigation and found that neither DOJ attorney was aware that the FBI agent had fabricated the false report until the day before trial when the FBI agent told them what he had done. The DOJ attorneys had intended to relay the information to the defense and to the court, but forgot to do so until the defense used the false document at trial.

OPR found that the DOJ attorneys did not commit professional misconduct when they failed to promptly notify defense counsel that the document was false. However, OPR found that both Department attorneys exercised poor judgment in the way that they handled the false document. Both DOJ attorneys received an oral admonishment.

9. Bar Membership; False Representation. OPR received an allegation that a DOJ attorney made a false representation regarding the status of her bar membership, and violated the policy of her litigating component and a local court rule by failing to become a member of the state bar. OPR conducted an investigation and found that the DOJ attorney committed professional misconduct by acting in reckless disregard of the obligation to provide accurate information in her bar certification form. OPR found inaccurate the representations in her certification form that the paperwork for admission to the state bar had been filed and that she was awaiting action by the bar. OPR concluded further that the DOJ attorney did not violate the local court rule or the policy of the litigating component in not becoming a member of the state bar earlier, because the district court cannot impose licensure requirements on Department attorneys and because the litigating component did not have an established policy that every attorney in that component be a member of the state bar.

The DOJ attorney received a reprimand. OPR referred its finding of professional misconduct to the appropriate state bar authorities.

10. Conflict of Interest. OPR received allegations that a DOJ attorney had an inappropriate personal relationship with opposing counsel in a case. The standards of conduct applicable to DOJ attorneys forbid an attorney from participating in a matter where the circumstances would cause a reasonable person with knowledge of the relevant facts to question his or her impartiality, unless he or she informs the Department of the appearance problem and receives authorization to proceed. OPR uncovered no evidence of an improper personal relationship between the DOJ attorney and opposing counsel. OPR further found that the DOJ attorney̓s ability to represent the federal government was not affected by his friendship with opposing counsel. Accordingly, OPR concluded that the DOJ attorney was not required to seek approval from the Department prior to continuing his representation of the government in the case.

11. Improper Closing Argument. A court of appeals reversed the convictions of some defendants on the ground that the DOJ attorney̓s rebuttal argument misstated the law and record and inflamed the jury. OPR conducted an investigation and found that the DOJ attorney did not intend to misstate the law, nor did the attorney act in reckless disregard of her obligation to correctly state the law. The comments were made in rebuttal argument, with little opportunity to prepare. Moreover, the comments were ambiguous in the context in which they were made. OPR further found that remarks did not constitute such a serious mischaracterization as to invite the jury to disregard the evidence and rule on the basis of its passions. OPR noted that the defendants neither objected to the remarks nor raised the issue in their motion for a mistrial. OPR concluded that the DOJ attorney did not engage in professional misconduct or exercise poor judgment, but rather made several mistakes in rebuttal argument.

The DOJ attorney was required to undertake additional training on issues relating to closing arguments.

12. Failure to Comply with Court Order. A district court imposed a monetary sanction on a DOJ attorney, finding that the attorney applied for a protective order in connection with a civil discovery request without meeting the procedural requirements for seeking such an order. Specifically, the court found that the DOJ attorney did not consult with opposing counsel and failed to make a good-faith effort to resolve the discovery dispute before filing his discovery motion. The court also stated that the government’s discovery motion failed to satisfy the two requirements under Fed. R. Civ. P. 26 for the issuance of a protective order: “good cause” and the occurrence of “annoyance, embarrassment, oppression, undue burden, or expense.” The court ruled that there was no showing of a serious injury to satisfy the “good cause” predicate and that the request for a protective order was not supported by the facts.

OPR conducted an investigation and found that the DOJ attorney did not commit professional misconduct, but rather acted appropriately under the circumstances of the case. OPR found that it was made clear in a colloquy in open court that opposing counsel would not agree to the protective order, so there was no need for the DOJ attorney to make any further attempt to consult with opposing counsel before filing the motion. In addition, OPR found that there was good cause to justify the filing of the motion; the DOJ attorney properly asserted that the client agency needed more time to respond to the discovery request because of the severe impact on the agency’s operations caused by its involvement in investigating the terrorist attacks of September 11, 2001.

13. Discovery Violations. In an off-the-record conversation with a Department official, a district court judge criticized a DOJ attorney for failing to respond to discovery requests until after the plaintiff filed a motion to compel the discovery responses. OPR conducted an investigation and found that the DOJ attorney did not engage in professional misconduct, but rather exercised poor judgment by failing to document the understanding that she believed had been reached with the plaintiff’s counsel regarding the timing of the government’s discovery responses, and by failing either to ascertain the status of the draft responses to the discovery requests or to set a date for their receipt from agency counsel.

14. Vindictive Investigation. OPR received a complaint that the FBI had inappropriately targeted an individual in an aborted undercover sting that was designed to catch the individual on tape accepting money in exchange for arranging a job offer. The complainant claimed the FBI had no evidence to initiate the sting and that the sting was racially motivated. OPR conducted an investigation and found that no Department employee, including the FBI, committed professional misconduct or exercised poor judgment. OPR concluded that the Department had sufficient factual information and evidence to pursue possible leads about the allegations concerning the individual. OPR also concluded there was no evidence that the investigation was racially motivated or that any portion of the investigation was conducted for an improper purpose. OPR concluded that the FBI proceeded with the investigation with the proper authority.

15. Improper Closing Argument. A court of appeals ruled that a DOJ attorney committed professional misconduct in her rebuttal argument by misstating the testimony of a key identification witness and by repeatedly accusing defense counsel of lying about the witness’ testimony. In overturning the defendant’s conviction, the court ruled that the DOJ attorney deliberately made the improper comments to the jury, and that the strength of the evidence against the defendant was not so overwhelming that it negated the improper comments.

OPR conducted an investigation and concluded that the DOJ attorney did not make the improper remarks in her rebuttal with the purpose of violating the defendant’s right to a fair trial, nor did she make the remarks knowing that would be the result. OPR also concluded that the DOJ attorney neither knew nor should have known that the remarks involved a substantial likelihood of violating her obligation not to misrepresent facts, and that the attorney did not exercise poor judgment in making the remarks. Rather, OPR concluded that the improper remarks were made in the heat of the moment in an attempt to refute defense counsel’s argument, and that the DOJ attorney did not have an opportunity to plan and reflect on her rebuttal. Accordingly, OPR concluded that the attorney made excusable mistakes in misstating the evidence and in accusing the defense counsel of lying.

16. Unauthorized Disclosure to Media. OPR received an allegation that unidentified employees in a litigating component leaked false information to the media concerning an ongoing investigation, in a deliberate attempt to undermine the professional and personal reputation of one of the subjects of the investigation. The leaked information included a description of alleged criminal acts that were under investigation, and statements, later determined to be false, that the indictment of one of the subjects was imminent. OPR conducted an investigation but was not able to determine who disclosed the information. The individuals interviewed from the litigating component denied being the source of the leak. OPR found their denials to be credible and found no evidence to the contrary. In view of the lack of additional promising investigative leads, OPR concluded that further investigation was not likely to result in the discovery of the source of the leak. Consequently, OPR terminated its investigation.

17. Improper Contacts with Represented Person. A civil-criminal fraud investigation of a health care provider resulted in the scheduling of formal interviews with several employees of the provider, which the provider’s attorney planned to attend. Prior to the interviews, government agents met with the employees at their homes in the evenings, without notice to their employer’s counsel and after allegedly telling each employee that the provider’s lawyer did not and could not represent them, whatever he may have said. The attorney for the provider accused the DOJ attorney running the investigation of knowingly orchestrating unauthorized contacts with represented persons.

OPR conducted an investigation and found that the DOJ attorney did not violate the non-contact prohibition because none of the employees could be considered part of the provider’s control group under the law of the operative jurisdictions. In addition, OPR found that the DOJ attorney did not fail to adequately supervise the conduct of non-lawyers acting under her supervision. However, OPR concluded that the DOJ attorney exercised poor judgment in allowing the agents to interview the provider’s employees in advance of their scheduled interviews at which counsel would be present, given the arrangements counsel had made.

18. Improper Closing Argument. OPR received allegations that a DOJ attorney who had since left the Department overstated the evidence in a case by referring to the defendant's statement that there might be drugs in his car as a “confession,” and by stating on two occasions that the defendant told the authorities that he “knew” there were drugs in the vehicle. OPR determined that the former DOJ attorney made the comments in rebuttal argument, when the attorney had little time to prepare or to reflect on the testimony. Moreover, the comments were consistent with an argument made moments earlier by defense counsel, who did not dispute that his client knew he was smuggling something illegal into the United States, but argued that he did not know it was marijuana. OPR further found that the DOJ attorney's comments were not intended to evoke the juror's emotions or obtain an unfair advantage. Based on its finding, OPR found it unlikely that an investigation would result in a finding that the former DOJ attorney committed professional misconduct. Accordingly, in light of OPR's scarce resources and the absence of a substantial Department interest in completing this matter, OPR sought and obtained approval from the Office of the Deputy Attorney General to close the matter without further investigation.

19. Discovery Violation. A district court dismissed an indictment against a defendant after finding that the DOJ attorney failed to produce Jencks material within the agreed upon time period, and did not notify the court or explain the reasons for this failure. In addition, the court found that, when confronted about the failure, the DOJ attorney was not candid as to why the government had failed to turn over the Jencks material, giving a variety of incomplete and inconsistent explanations.

OPR conducted an investigation and found that the DOJ attorney committed professional misconduct by acting in reckless disregard of her duty of candor towards the tribunal by providing the court with conflicting and misleading explanations as to her failure to turn over the Jencks material. In addition, OPR found that the DOJ attorney exercised poor judgment by failing to inform the court that the government had decided not to produce the Jencks material.

OPR recommended a range of discipline from a written reprimand to a three-day suspension. Disciplinary proceedings remain pending.

20. Interference with Right to Counsel. A district court ruled that two DOJ attorneys violated a state bar rule pertaining to the special responsibilities of a prosecutor by failing to ensure that a suspect was advised of the procedure for obtaining counsel, and by not giving him a reasonable opportunity to obtain counsel prior to being questioned about his involvement in several homicides. The court found that the rule applied to a suspect who had not been formally charged and that the DOJ attorneys̓ conduct did not satisfy the requirements of the rule.

OPR conducted an investigation and found that the DOJ attorneys’ conduct was consistent with the terms of the state bar rule because they made reasonable efforts to assure that the suspect was advised of the procedure for obtaining counsel. They advised him that if he could not afford counsel, one would be appointed for him, and they explained the procedure for obtaining counsel. The suspect, who had prior experience with the criminal justice system, told the DOJ attorneys that he was fully aware of his rights and that he knew he could request a lawyer if he wanted one. OPR found that there could be no violation of the rule when the accused specifically advised the DOJ attorneys that he was aware of his right to counsel and knew how to exercise that right, but did not want counsel. Thus, OPR found that the DOJ attorneys acted appropriately under the circumstances.

21. Discovery Violation. A district court dismissed a case without prejudice based in large part on the admitted failure of the three DOJ attorneys who successively handled the prosecution to advise the case agent, in accordance with local court rules, to preserve his investigative notes. Based on the results of its investigation, OPR concluded that none of the DOJ attorneys committed professional misconduct or exercised poor judgment in this matter. OPR found that one of the three, as the first attorney on the case and as the supervisor of the other two, bore responsibility for failing to advise the case agent of his duty to preserve his notes. OPR concluded that the DOJ attorney made a mistake by assuming that the case agent, an experienced federal law enforcement officer, understood his obligation to preserve original notes.

22. Improper Contacts with Represented Party; Massiah Violation. A district court ruled that a jailhouse informant was a government agent who deliberately elicited incriminating evidence from a represented defendant, in violation of Massiah v. United States. The court found the requisite agency relationship between the informant and the government because the informant reasonably believed that substantial benefits would flow from his well-known propensity to draw fellow inmates into incriminating conversations and because the government knew or should have known that the informant would in fact seize upon the opportunity presented by the defendant’s placement in the same facility. The court suppressed the evidence and fruits of the jailhouse informant’s communications with the defendant.

OPR conducted an investigation and found that the DOJ attorney did not commit professional misconduct or exercise poor judgment in the matter. OPR found that his conduct comported with the clear and unambiguous standard established by a recent court of appeals decision, and that the district court’s decision represented a marked departure from that governing standard.

23. Misrepresentation/Misleading the Court; Unauthorized Disclosure to Media; Failure to Comply with DOJ Rules and Regulations. A Department official notified OPR that a DOJ attorney had executed what may have been a false or misleading affidavit in a private civil action involving a former criminal defendant in one of the DOJ attorney’s cases.

OPR conducted an investigation and identified other issues that raised professional misconduct concerns, including whether the DOJ attorney revealed confidential or privileged information to unauthorized persons, and whether she allowed a criminal statute of limitations to expire. OPR concluded that the affidavit in question, which was drafted by the criminal defendant’s attorney, was false and misleading. OPR concluded further that when the DOJ attorney signed the affidavit after only a cursory review she committed professional misconduct by acting in reckless disregard of her duty not to present false, material facts to a tribunal. OPR also concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of DOJ standards when she provided internal and confidential information about the criminal case to a reporter and to attorneys for parties in the civil case.

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

OPR Inquiries in Fiscal Year 2003

Characteristics of Inquiries Opened in Fiscal Year 2003: The sources of the 230 matters designated as inquiries are set forth in Table 3. The nature of the 329 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 2003
Judicial opinions & referrals ⁽⁸⁾	55	23.9%
Private attorneys	36	15.7%
Department components	69	30.0%
Private parties	35	15.2%
Other agencies	15	6.5%
Other sources	20	8.7%
Total	230	100.0%

Type of Allegation	Allegations in inquiries	Percentage of All Allegations in Inquiries
Misconduct Allegations in Inquiries Opened in Fiscal Year 2003, by Type of Allegation
Abuse of authority, including abuse of prosecutorial discretion	81	24.6%
Improper remarks to a grand jury, during trial or in pleadings	32	9.7%
Misrepresentation to the court and/or opposing counsel	16	4.9%
Unauthorized disclosure of confidential information, including grand jury information protected by Rule 6(e), Fed. R. Crim. P.	43	13.0%
Failure to perform/dereliction of duty	27	8.2%
Failure to comply with Brady, Giglio or Rule 16 discovery	13	4.0%
Failure to comply with court orders or federal rules	3	0.9%
Conflict of interest	18	5.5%
Failure to comply with DOJ rules and regulations	13	4.0%
Subornation of perjury/failure to correct false testimony	15	4.6%
Interference with defendant's rights	6	1.8%
Lateness (i.e., missed filing dates)	4	1.2%
Lack of fitness to practice law	10	3.0%
Improper contact with represented party	3	0.9%
Failure to comply with Congressional discovery requests, including subpoenas	0	0.0%
Unauthorized practice of law	1	0.3%
Other ⁽⁹⁾	44	13.4%
Total	329	100.0%

The data demonstrate that the matters opened as “inquiries” during fiscal year 2003 were remarkably diverse. Many of those matters did 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 2003: OPR closed a total of 360 inquiries in fiscal year 2003, an increase of approximately 44% from fiscal year 2002. Forty-five of those matters involved the conduct of non-attorneys. Fifty-three of the 360 inquiries were converted to full investigations after evidence was developed that further investigation was required; 198 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-seven 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.

The manner in which the allegations were resolved as inquiries in fiscal year 2003 is set forth in Table 5.

Resolution Code	Number of Occurrences	Percentage of Total
Referred. Performance or management matter more appropriately handled by employing component.	6	1.6%
Referred. More appropriately handled by another component or agency.	47	13.1%
Issues previously addressed. No further action required by OPR at this time.	0	0%
No merit to allegation based on review of matter.	69	19.2%
No merit to matter based on inquiry.	58	16.1%
Consolidated with already open miscellaneous matter, inquiry, or investigation.	1	0.3%
Converted to an investigation.	53	14.7%
FBI or DEA matter - resolved administratively.	19	5.3%
Inquiry completed; further inquiry not likely to result in finding of misconduct.	71	19.7%
Matter being monitored.	11	3.1%
FBI Whistleblower Claim.	18	5.0%
Other	7	1.9%
Total	360	100.0%

Examples of Inquiries Closed in Fiscal Year 2003

1. Subornation of Perjury. An acquitted defendant brought a Bivens action against a Department attorney alleging that the attorney coerced a witness to falsely accuse and then testify against the defendant. OPR conducted an inquiry and found corroboration for the core of the witness’s testimony. OPR also found that the discrepancies in the witness’s testimony were disclosed to the defense, allowing the defense to impeach the witness’s credibility. OPR closed the matter, finding that further investigation was unlikely to result in a professional misconduct finding.

2. Unauthorized Plea Agreement. An anonymous letter to the Attorney General alleged that DOJ attorneys committed professional misconduct by allowing a defendant to plead guilty to less serious offenses than originally charged. OPR conducted an inquiry and found that the plea agreement had supervisory approval and was consistent with Department policies and standards. OPR closed the matter, finding that further investigation was unlikely to result in a professional misconduct finding.

3. Misrepresentation to the Court. A private citizen alleged that a DOJ attorney knowingly lied to a court, in connection with a hearing on a defendant’s guilty plea, about the extent of the defendant’s criminal activities. OPR conducted an inquiry and found that the charging decisions fell within the DOJ attorney’s prosecutorial discretion and were reasonable and appropriate on their face. OPR found further that the representations made by the DOJ attorney at the plea proceeding were neither false nor misleading. OPR closed the matter, finding that further investigation was unlikely to result in a professional misconduct finding.

4. Conflict of Interest; Failure to Comply with DOJ Rules and Regulations. OPR received allegations that a DOJ attorney may have injected himself into a case in which he had a personal interest, and acted in the case in a manner calculated to create a favorable disposition for the defendant. OPR received a second allegation that the DOJ attorney was biased in favor of defendants from the country from which he had emigrated. OPR initiated an inquiry. The DOJ attorney retired when confronted with the existence of the OPR inquiry. Thereafter, the DOJ attorney’s office became aware of a number of other cases in which the attorney allegedly assisted defendants of his own national and ethnic background, in contravention of his duty as a Department attorney and possibly in violation of federal criminal laws and Department policies. Given the attorney’s retirement, OPR could not compel his cooperation with an administrative investigation. The criminal nature of the alleged misconduct, however, led OPR to refer the matter to the Criminal Division for its determination of whether a criminal investigation was warranted.

5. Improper Performance of Duties. A private citizen informed OPR that she had filed a federal lawsuit under seal alleging that a federal entity and many of its employees engaged in a conspiracy to ensure that certain lawsuits against the government were routinely dismissed without good cause. The citizen complained to OPR that the seal on her complaint was broken because of what she claimed was misconduct by various federal employees, including Department attorneys assigned to the lawsuit. The citizen also alleged that the DOJ attorneys engaged in perjury, obstruction of justice, and a conspiracy to threaten and intimidate her, in part because the attorneys informed her in writing that the government intended to move to dismiss her lawsuit.

The district court granted the government’s motion to dismiss with prejudice, and later entered a separate order authorizing the seal to be lifted to the extent that the suit and the filings made in the suit might be disclosed to OPR. Based on a review of the matter, OPR concluded (as the court had) that the complainant did not and could not allege sufficient facts to support her misconduct allegations. Because it was unlikely that further investigation would result in a misconduct finding, OPR closed the matter.

6. Interference with Defendant’s Rights. A component within the Department forwarded to OPR an affidavit from a convicted felon who alleged misconduct by the DOJ attorney who handled the criminal investigation that resulted in his guilty plea. The affiant alleged that the DOJ attorney never provided him with his Miranda rights or warned that what he said might be used against him in other contexts; that on the day the affiant signed the plea agreement he was on medication that prevented him from appreciating the gravity of what he was doing; that the affiant’s financial condition forced him to plead guilty although he knew that many of the charges were unfounded and untrue; and that the Department attorney knew that the charges were untrue. The affiant also filed a § 2255 motion asserting that the court had miscalculated the fine imposed as part of his sentence, but the court denied the motion.

OPR conducted an inquiry and found that the allegations of professional misconduct were not credible. OPR noted that the affiant testified under oath during his plea hearing that he was not on medication, drugs, or otherwise in a condition not to understand fully what he was doing; that he had discussed all aspects of the plea agreement with his attorney; and that he had misappropriated funds and used some of those funds for his own benefit. Moreover, the court accepted the plea after determining that the defendant’s testimony at the hearing was true and voluntary. In addition, OPR noted that the affiant could have raised his misconduct allegations in his § 2255 motion, but he failed to do so. Accordingly, OPR closed the matter, finding that further investigation was unlikely to result in a finding of professional misconduct.

7. Unauthorized Disclosure to the Media. A component within the Department forwarded to OPR an allegation from a federal judge that an article in a local newspaper must have been based on a leak from a DOJ attorney. The article stated that in an allegedly sealed case there would be a status conference that day, detailed the nature of the charges against the defendants, and noted that the defendants were cooperating with federal law enforcement authorities. The judge noted the sensitive nature of the cooperation, and was concerned by the fact that the reporter knew not only of the scheduling of the conference in a sealed calendar, but also the precise nature of the confidential information the defendants were providing.

OPR conducted an inquiry and found that all of the information contained in the article was available from the public record because the court had not taken steps to seal relevant pleadings and filings, including the indictment. The case docket included an entry that referenced the calendaring of the scheduling conference, as well as entries that mentioned the defendants by name after other entries indicated that every other defendant’s case had been disposed of, from which any experienced reporter might have concluded that the defendants were cooperating with the government. OPR therefore closed the matter, finding that further investigation was unlikely to result in a professional misconduct finding.

8. Improper Cross-Examination; Improper Closing Argument. OPR was informed of allegations in a defendant’s appellate brief that a DOJ attorney engaged in improper cross-examination of the defendant and compounded that error by making improper remarks during closing argument. OPR conducted an inquiry and found that further investigation was warranted. Accordingly, OPR converted this inquiry to an investigation.

9. Failure to Comply with DOJ Press Guidelines. A private attorney alleged that unknown Department employees improperly disclosed to the media non-public information about the attorney’s client and improperly confirmed that the client was under criminal investigation. OPR conducted an inquiry, but was unable to develop any investigative leads likely to result in the identification of the person or persons who disclosed the information at issue.

With respect to the Department’s confirmation of the existence of the criminal investigation, OPR found that while Department employees ordinarily should not respond to questions regarding the existence of an ongoing investigation or comment on its nature or progress, they may do so in matters that have already received substantial publicity; in matters about which the community needs reassurance that the appropriate law enforcement agency is investigating the incident; or where release of the information is necessary to protect the public interest, safety, or welfare. Because it found that the Department’s confirmation of the existence of its investigation was consistent with these exceptions, OPR concluded that further investigation was unlikely to result in a finding of professional misconduct. Therefore, OPR closed the matter.

10. Abuse of Authority. OPR received allegations from a DOJ attorney that certain Department officials violated federal employment laws regarding the accommodation of federal employees who are called into military service. OPR initiated an inquiry and, based on a preliminary review of the matter, concluded that the allegations of misconduct were not within OPR’s jurisdiction. The Department attorney pursued his complaint with the Department of Labor.

11. Unauthorized Disclosure to the Media of Grand Jury Material. OPR received an allegation that a transcript of a grand jury witness’ testimony was leaked to the media. OPR conducted an inquiry into the allegations. Because the matter involved a potential violation of Federal Rule of Criminal Procedure 6(e), OPR referred the matter to the Criminal Division for a determination of whether a criminal investigation was warranted.

12. Misrepresentations to the Court. OPR received a letter from a Department employee who alleged that, during an administrative hearing, a DOJ attorney introduced into evidence an official form that contained a false entry and caused false testimony to be given by the author of the document. OPR conducted an inquiry and found that there was no evidence that the DOJ attorney falsified the document, knew that the document was falsified, or that the document was, in fact, falsified. Accordingly, OPR closed the matter, finding that further investigation was unlikely to result in a professional misconduct finding.

13. Failure to Correct False Testimony. A federal employee, who had filed a civil complaint alleging that his employing agency violated Title VII by creating a hostile work environment and retaliated against him for bringing suit, challenged as false and misleading a declaration filed by a DOJ attorney in response to a motion to compel production of documents. OPR initiated an inquiry, but found no credible evidence that the Department attorney’s declaration was inaccurate. Accordingly, OPR closed the matter, finding that further investigation was unlikely to result in a professional misconduct finding.

14. Failure to Perform. OPR received a referral from a Department component of an allegation by defense counsel that a DOJ attorney committed misconduct during a hearing by failing to provide defense counsel with notice to appear, failing to transfer venue to the court with original jurisdiction, and misrepresenting a charge to the court. OPR conducted an inquiry and found that the allegations lacked merit. Accordingly, OPR closed the matter, finding that further investigation was unlikely to result in a professional misconduct finding.

15. Abuse of Authority. In a series of letters to the Department, a private citizen alleged that a former DOJ attorney committed misconduct by retrying a defendant for his alleged involvement in an assault on a suspect while he was in police custody. OPR conducted an inquiry and found no evidence that was likely to establish that the former DOJ attorney violated his ethical obligations or otherwise engaged in professional misconduct. Accordingly, OPR closed the matter, finding that further investigation was unlikely to result in a finding of professional misconduct.

16. Abuse of Process. OPR received a series of letters from a criminal defendant who claimed that a DOJ attorney committed misconduct by filing a civil forfeiture complaint against the defendant’s residence and then investigating and indicting the defendant on criminal charges. The defendant provided voluminous materials relating to the criminal case as substantiation of her claims. OPR conducted an inquiry and found that all the allegations related to the facts and circumstances surrounding the alleged crimes, the grand jury investigation, and the indictment in a pending criminal case. As such, the allegations have been, were being, or should have been, considered as a part of the litigation of the criminal case. Because it is OPR’s policy to refrain from investigating issues or allegations that were addressed, or that could be addressed in the course of litigation, OPR closed the matter without further investigation.

17. Improper Contact with Represented Party. OPR received an allegation that a DOJ attorney engaged in an unauthorized contact with a represented party when he accepted a telephone call from an officer of a financial institution that was a party to a lawsuit against the United States, and did not have authorization of counsel for that institution to communicate directly with that officer. OPR conducted an inquiry and found that, when the DOJ attorney accepted the telephone call, he at first believed he was speaking to counsel for the financial institution. Later, he questioned whether that was the case, and, after looking at the file, determined that the call had not been from counsel. In order to remedy the situation, he spoke to his supervisor, and then advised counsel for the institution about the contact. OPR concluded that, under these circumstances, it appeared unlikely that further investigation would result in a finding that the DOJ attorney committed professional misconduct, and the matter was closed.

18. Unprofessional Statements or Comments. OPR received an allegation from a private attorney that a DOJ attorney and a federal law enforcement agent engaged in improper conduct in carrying out a criminal investigation. It was alleged that the agent followed the private attorney’s secretary into a parking garage and began to ask her questions about her employment, which, the attorney alleged, would have involved privileged information. It also was alleged that the DOJ attorney made a statement to the effect that a client of the private attorney is guilty, because the attorney only represents members of a certain criminal group.

OPR conducted an inquiry and found that the interview of the secretary had a proper predicate and would not have intruded upon privileged information, that the DOJ attorney did not make an improper remark regarding the private attorney’s client, and that the private attorney himself was the target of a criminal investigation. OPR concluded that, under these circumstances, it appeared unlikely that further investigation would result in a finding that the DOJ attorney or the agent committed professional misconduct, and, accordingly, the matter was closed.

19. Conflict of Interest. OPR received an allegation from a private party that a DOJ attorney who was defending a lawsuit brought against the United States by that party suffered from a conflict of interest. The private plaintiff alleged that the DOJ attorney previously worked for a law firm that provided legal advice to the plaintiff with respect to the subject matter of the lawsuit.

OPR conducted an inquiry and found that the allegation of a conflict of interest had been raised in the context of a motion in the district court to have the DOJ attorney removed as counsel for the government. The district court denied the motion, finding that the DOJ attorney never worked on the matter in question at the law firm, and never obtained any confidential information about the matter. OPR concluded that, under these circumstances, it appeared unlikely that further investigation would result in a finding that the DOJ attorney committed professional misconduct. Accordingly, OPR closed the matter without further investigation.

20. Unprofessional or Unethical Behavior. OPR received an allegation from a private citizen that an Immigration Judge improperly, and possibly with a corrupt motive, dismissed deportation proceedings against several persons who had immigrated into the United States. The complainant alleged that one of the immigrants falsely claimed to have been divorced in her home country, which would make her eligible for legal immigration through her mother, who was a legal resident of the United States, and would make her children eligible as well.

OPR conducted an inquiry and found that the Immigration Judge carefully considered conflicting evidence on whether one immigrant altered his passport, and that the Immigration Judge reasonably concluded that the Immigration and Naturalization Service had not established by clear and convincing evidence that the immigrant’s divorce decree was fraudulent. Under these circumstances, OPR found that it was unlikely that further investigation would result in a finding that the Immigration Judge committed professional misconduct. Accordingly, OPR closed the matter without further investigation.

Conclusion

FootNote

1.

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

3. 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.

4. 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.

5. 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.

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

7. 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.

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

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

Updated January 12, 2022

DOJ:OPR: Fiscal Year 2003 Annual Report

U.S. Department of Justice Office of Professional Responsibility Fiscal Year 2003 Annual Report

U.S. Department of Justice
Office of Professional Responsibility

Fiscal Year 2003 Annual Report