EFTA00212253.pdf

U.S. DEPARTMENT OF JUSTICE OFFICE OF PROFESSIONAL RESPONSIBILITY ANNUAL REPORT 2009 EFTA00212253  U.S. Department of Justice Office of Professional Responsibility Fiscal Year 2009 Annual Report Introduction 1 Jurisdiction and Functions of OPR 1 Significant Activities in Fiscal Year 2009 4 Intake and Initial Evaluation of Complaints 6 OPR Investigations in Fiscal Year 2009 6 Characteristics of Investigations Opened in Fiscal Year 2009 6 Investigations Closed in Fiscal Year 2009 9 Examples of Investigations Closed in Fiscal Year 2009 12 OPR Inquiries in Fiscal Year 2009 35 Characteristics of Inquiries Opened in Fiscal Year 2009 35 Inquiries Closed in Fiscal Year 2009 37 Examples of Inquiries Closed in Fiscal Year 2009 39 Conclusion 48 Tables Table 1. Sources of Complaints Against Department Attorneys in Investigations Opened FY09 7 Table 2. Types of Misconduct Allegations in Investigations Opened in FY09 8 Table 3. Workload Comparison Over 'Three Fiscal Years I1 Table 4. Sources of Complaints Against Department Attorneys in Inquiries Opened in FY09 . . 35 Table 5. Types of Misconduct Allegations in Inquiries Opened in FY09 36 Table 6. Categories of Inquiry Allegations Resolved in FY09 38 EFTA00212254  Annual Report for Fiscal Year 2009 Introduction The Office of Professional Responsibility (OPR) was established in the Department of Justice by order of the Attorney General dated December 9, 1975, to ensure that Department employees perform their duties in accordance with the high professional standards expected of the nation's principal law enforcement agency. This is the Office's 34th annual report to the Attorney General, and it covers fiscal year 2009 (October 1, 2008 - September 30, 2009). Jurisdiction and Functions of OPR OPR has jurisdiction to investigate allegations of professional misconduct made against Department of Justice (DOJ) attorneys where the allegations relate to the exercise of the attorney's authority to investigate, litigate, or provide legal advice. This includes allegations relating to the actions of the Department's immigration judges and Board of Immigration Appeals Members. OPR also has jurisdiction to investigate allegations of misconduct against DOJ law enforcement personnel when they are related to allegations of attorney misconduct within the jurisdiction of OPR. In addition, OPR has authority to investigate other matters when requested or authorized to do so by the Attorney General or the Deputy Attorney General. Typical misconduct allegations that OPR investigates include Brady, Giglio, Federal Rule of Criminal Procedure 16, and civil discovery violations; improper conduct before a grand jury; improper coercion or intimidation of witnesses; improper use of peremptory strikes during jury selection; improper questioning of witnesses; improper introduction of evidence; misrepresentations to the court and/or opposing counsel; improper opening statements and closing arguments; failure to represent diligently the interests of the government; failure to comply with court orders, including scheduling orders; unauthorized disclosure of non- public information; and the exercise of prosecutorial discretion based on improper purposes. In addition, OPR examines cases in which courts have awarded Hyde Amendment fees to the defendant based on a finding that the government's conduct was frivolous, vexatious, or in bad faith. OPR receives allegations from a variety of sources, including judicial opinions and referrals, private individuals and attorneys, and other federal agencies. Some of the most important sources are internal Department referrals. All Department employees are obligated to report to their supervisors any evidence or non-frivolous allegation of misconduct, or they may bring the information directly to the attention of OPR. Supervisors, in turn, are obligated to report to EFTA00212255 OPR any matters in which the alleged misconduct is serious. Supervisors and employees are encouraged to contact OPR for assistance in determining whether the matter should be referred to OPR. Information provided to OPR may be confidential. In appropriate cases, OPR will disclose that information only to the extent necessary to resolve the allegation, or when required by law. Upon receipt, OPR reviews each allegation and determines whether further investigation is warranted. If it is, OPR determines whether to conduct an inquiry or a full investigation. This determination is a matter of investigative judgment and involves consideration of many factors, including the nature of the allegation, its apparent credibility, its specificity, its susceptibility to verification, and the source of the allegation. The majority of complaints reviewed by OPR each year are determined not to warrant further investigation because, for example, the complaint is frivolous on its face, is outside OPR's jurisdiction, or is vague and unsupported by any evidence. In some cases, OPR initiates an inquiry because more information is needed to resolve the matter. In such cases, OPR may request additional information from the complainant or obtain a written response from the attorney against whom the allegation was made, and may review other relevant materials such as pleadings and transcripts. Most inquiries are resolved with no misconduct finding based on the additional written record. In cases that cannot be resolved based solely on the written record, OPR ordinarily conducts a full on-site investigation, including a review of the case files and interviews of witnesses and the subject attorney(s). The interviews ordinarily are conducted by two OPR attorneys. Interviews of subject attorneys ordinarily are transcribed by a court reporter. The subject is given an opportunity, subject to a confidentiality agreement, to review the transcript and to provide a supplemental written response. All Department employees have an obligation to cooperate with OPR investigations and to provide information that is complete and candid. Employees who fail to cooperate with OPR investigations may be subject to formal discipline, including removal. Judicial findings of misconduct must be referred to OPR by Department employees. Except in extraordinary cases, such findings are, pursuant to Department policy, investigated by OPR regardless of any planned appeal. OPR ordinarily completes investigations relating to the actions of attorneys who resign or retire during the course of the investigation in order to better assess 2 EFTA00212256 the litigation impact of the alleged misconduct and to permit the Attorney General and Deputy Attorney General to judge the need for changes in Department policies or practices. In certain cases, however, the Office of the Deputy Attorney General will approve termination of such investigations if it deems such action, in light of OPR's limited resources, is in the best interest of the Department. Terminated investigations may still result in notifications to the appropriate state bar authorities if the Department determines that the evidence warrants a notification. OPR reports the results of its investigations to the Office of the Deputy Attorney General and to the appropriate management officials in the Department. It is those officials who are responsible for imposing any disciplinary action that may be appropriate. In matters where OPR concludes that a Department attorney engaged in professional misconduct, pursuant to Department policy OPR recommends a range of discipline. Although OPR's recommendation is not binding on the management officials responsible for discipline, if an official decides to take an action that is outside the range of discipline recommended by OPR (whether it is harsher or more lenient), he or she must notify the Office of the Deputy Attorney General in advance of implementing that decision. Once a disciplinary action is final, OPR, pursuant to Department policy, notifies the bar counsel in each jurisdiction in which an attorney found to have committed professional misconduct is licensed. The Department's notification policy includes findings of intentional professional misconduct, as well as findings that a subject attorney acted in reckless disregard of a professional obligation or standard. Consistent with Department policy, OPR does not make bar notifications where the conduct in question involved exclusively internal Department interests which do not appear to implicate a bar rule. In addition, OPR reviews reports issued by the Office of the Inspector General (OIG) concerning Department attorneys to determine whether the relevant state bar counsel should be notified of the misconduct at issue, again pursuant to Department policy. OPR also reviews case files and statistical data of matters under investigation to identify any misconduct trends or systemic problems in the programs, policies, and operations of the Department. Trends and systemic problems are brought to the attention of appropriate management officials. Significant Activities in Fiscal Year 2009 During fiscal year 2009, OPR participated in non-investigative, policy, and 3 EFTA00212257 project-oriented activities of the Department. OPR attorneys participated in numerous educational and training activities within and outside the Department of Justice to increase awareness of the ethical obligations imposed on Department attorneys by statutes, court decisions, regulations, Department policies, and bar rules. During fiscal year 2009, OPR attorneys served on a panel on legal ethics at a Department orientation session for Department attorneys, and participated in presentations in media relations workshops focusing on the policies and ethical issues concerning contacts with the media, including participating in the production of a training tape on this topic for use by the Executive Office for U.S. Attorneys. OPR attorneys also conducted presentations on legal ethics at the National Advocacy Center (NAC) as part of the Center's basic criminal trial advocacy courses. In addition, OPR attorneys participated in the Criminal Case Management 81 Discovery Conference at the NAC. OPR attorneys also made presentations as part of the Department's Orientation for new Assistant United States Attorneys. An OPR attorney also provided a presentation to a U.S. Attorney's Office addressing the manner in which OPR conducts investigations. OPR attorneys also participated in the United States Attorneys' Conference and the Annual Disciplinary Conference for the District of Columbia Bar, and discussed legal ethics with students from American University's Washington College of Law. On the international front, in conjunction with the Criminal Division's Overseas Prosecutorial Development Assistance and Training program, OPR attorneys participated in presentations to Brazilian, Indonesian, Colombian, and Albanian delegations about OPR's role in the Department and issues associated with prosecutorial ethics. OPR attorneys also briefed a new Resident Legal Advisor assigned to Montenegro about issues associated with prosecutorial ethics, gave a presentation to Italian magistrate judges about OPR practices and policies, gave presentations in Azerbaijan to Azerbaijani prosecutors about the operation and functioning of OPR, and participated in a trial advocacy training program in Kampala, Uganda for Ugandan prosecutors. OPR continued to serve as the Department's liaison to state bar counsel on matters affecting the professional responsibility of Department attorneys. OPR attorneys attended the mid-year and annual meetings of the National Organization of Bar Counsel that addressed current trends in attorney regulation and discipline. OPR attorneys participated in the National Organization of Bar Counsel's program committee, which is responsible for organizing speakers and topics for presentations at the mid-year and annual meetings. An OPR attorney made a presentation at the annual meeting on prosecutorial misconduct, focusing primarily on the scope and extent of discovery violations by federal prosecutors. 4 EFTA00212258 In accordance with the Department's policy, OPR notified the appropriate state bar disciplinary authorities of findings of professional misconduct against Department attorneys and responded to the bars' requests for additional information on those matters. OPR also advised other Department components regarding instances of possible professional misconduct by non-DOJ attorneys. In 47 such matters handled by OPR in fiscal year 2009, OPR reviewed information relating to possible misconduct by the attorneys, advised components regarding the applicable state bar rules, and rendered advice on whether bar notifications were warranted. In some cases, OPR notified the applicable bar disciplinary officials directly. In fiscal year 2009, OPR adopted a new policy of allowing subjects of OPR investigations and component heads to comment on OPR draft reports when there is a proposed finding of professional misconduct. This policy ensures greater fairness to the subject and efficiency for the Department because it allows subjects and supervisors to raise new facts and arguments for OPR's consideration before the final report is issued. Previously, new facts and arguments with regard to OPR's findings could not be raised until an OPR report was issued and the misconduct finding was appealed to the Office of the Deputy Attorney General. In fiscal year 2009, OPR also convened a team of attorneys including OPR attorneys and attorneys detailed to OPR from other DOJ components to work on the allegations of prosecutorial misconduct stemming from the prosecution of Senator Theodore Stevens. See United States.. Theodore Stevens, Cr. No. 08-231 (D. D.C.). In fiscal year 2003, the Attorney General's Advisory Committee approved a plan under which OPR created a Rapid Response Team designed to enhance OPR's ability to respond quickly and effectively to misconduct allegations that arise in matters of particular importance to the Department. The work of the Rapid Response Team, like the other work at OPR, is directed and supervised by the Counsel and the Deputy Counsel. In fiscal year 2009, the Rapid Response Team was composed of 3 permanent OPR attorneys, 4 attorneys detailed to OPR from other DOJ components, and 1 contract attorney. The Rapid Response Team continued to be instrumental in handling expeditiously matters of importance to the Department. In addition, OPR continued to exercise jurisdiction over FBI, DEA, and ATF agents when allegations of misconduct against such agents related to allegations of attorney misconduct within the jurisdiction of OPR. OPR also continued to 5 EFTA00212259 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 2009, OPR received 1,254 complaints and other letters and memoranda requesting assistance. OPR determined that 245 of the matters, or approximately 20%, warranted further review by OPR attorneys. OPR opened full investigations in 100 of those matters; most of the remaining 145, which are termed "inquiries," were resolved with no findings of professional misconduct, based on further review, additional information from the complainants, responses from the subjects, or other information. When information developed in an inquiry indicated that further investigation was warranted, the matter was converted to a full investigation. The remaining 1,009 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 reviewed all such dispositions. OPR Investigations in Fiscal Year 2009 Characteristics of Investigations Opened in Fiscal Year 2009: OPR investigations opened in fiscal year 2009 were based on complaints from a variety of sources, as reflected in Table 1. 6 EFTA00212260 TABLE 1 Sources of Complaints Against Department Attorneys in Investigations Opened in FY 2009 Source Complaints Percentage of All Leading to Investigations Investigations Judicial opinions & referrals' 61 61.0% Private attorneys 9 9.0% Department components 25 25.0% Private parties 2 2.0% Other agencies 3 3.0% Total 100 100.0% TABLE 1: Sources of Complaints in New Investigations FY09 Judicial Opinions & Referrals ®Private Attorneys El DOJ Components 0 Private Parties M Other Agencies OPR opened a total of 100 new investigations in fiscal year 2009. Six of these matters also involved non-attorney subjects. The 100 investigations involved 213 separate allegations of misconduct. The subject matter of the 213 allegations is set out in Table 2. I This category includes self-reporting by Department employees of serious judicial criticism and judicial findings of misconduct. 7 EFTA00212261 TABLE 2 Types of Misconduct Allegations in Investigations Opened in Fiscal Year 2009 Type of Misconduct Allegation Number of Percentage of Allegations Allegations in Investigations Abuse of authority, including abuse of prosecutorial 49 23.0% discretion Improper remarks to a grand jury, during trial, or in 17 8.0% pleadings Misrepresentation to the court and/or opposing counsel 27 12.7% Unauthorized disclosure of information, including grand 6 2.8% jury information protected by Fed. R. Crim. P. 6(e) Failure to competently and/or diligently represent the 16 7.5% client's interests Failure to comply with Brady, Giglio, or Fed. R. Crim. P. 16 50 23.5% discovery Failure to comply with court orders or federal rules I I 5.2% Conflict of interest 2 0.9% Failure to comply with DOJ rules and regulations 22 10.3% Interference with defendants' rights 4 1.9% Lateness (i.e., missed filing dates) 4 1.9% Lack of fitness to practice law 2 0.9% Failure to maintain active bar membership 3 1.4% Total 213 100.0% TABLE 2: Summary of Misconduct Allegations in New Investigations FY09 ®Abuse of Authority ■Violation of Court Orders or Rules ['Improper Remarks 0 Competency and Diligence •Brady, Giglio, Rule 16 Violations ®Other II Misrepresentation OViolation of DOJRules and Regs 8 EFTA00212262  Investigations Closed in Fiscal Year 2009: OPR closed a total of 77 investigations in fiscal year 2009. Three of the investigations closed involved non- attorney subjects. Of the 77 investigations that were closed during the year, OPR found professional misconduct in 12, or approximately 16%, of the matters. Of the 12 matters in which OPR found professional misconduct, 7 involved at least 1 finding of intentional professional misconduct by a Department attorney.2 In 8 of the 12 matters, OPR found that a Department attorney engaged in professional misconduct by acting in reckless disregard of an applicable obligation or standard.3 The number and percentage of investigations resulting in findings of professional misconduct on the part of Department attorneys was lower in fiscal year 2009 than in fiscal year 2008, in which OPR closed 59 investigations and found professional misconduct in 22, or approximately 37%, of those matters. Disciplinary action was initiated against attorneys in 8 of the 12 matters in which OPR found professional misconduct by Department attorneys. Disciplinary action was not initiated against attorneys in 4 instances because the subject attorneys were no longer employed by the Department at the conclusion of OPR's investigation. Disciplinary action was initiated but was pending at the close of fiscal year 2009 in 4 matters, and in 1 matter OPR's disciplinary action recommendation was not imposed because the subject attorney resigned following the conclusion of OPR's investigation. With respect to the 3 matters in which disciplinary proceedings were initiated and implemented, the subject attorneys in 2 of the matters were suspended without pay for 14 and 5 days, respectively, and the subject attorney in 1 of the matters received a written reprimand. 2 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. 3 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, about the obligation; (2) that the attorney knew, or should have known, based on his or her experience and the unambiguous applicability of the obligation, that the attorney's conduct involved a substantial likelihood that he or she would violate or cause a violation of the obligation; and (3) that the attorney nevertheless engaged in the conduct, which was objectively unreasonable under all the circumstances. 9 EFTA00212263  OPR also closed 11 investigations, or approximately 14% of the 77 investigations, with at least 1 finding that an attorney exercised poor judgment.' One of those 11 matters also involved a finding of professional misconduct, and is included in the 12 matters that contained findings of professional misconduct. OPR does not make a disciplinary recommendation when it finds poor judgment, alone, but rather refers the finding to the DOJ attorney's employing component for consideration in a management context. OPR may also recommend that management consider certain actions, such as additional training. Eighteen matters, or approximately 23%, involved at least 1 finding that an attorney made an excusable mistake.s Two of those 18 matters also included a finding of professional misconduct or poor judgment. Thus, of the 77 matters closed, OPR found professional misconduct or poor judgment in 22 matters, or approximately 29%, which is down from the 27, or approximately 46% of matters in which OPR found professional misconduct or poor judgment in fiscal year 2008. As noted, the total number of matters dosed in 2008 was 59. The information in Table 3 highlights the number of investigations and inquiries OPR has opened and closed in the past three fiscal years, as well as the large increase in the total number of complaints received and reviewed by OPR in FY 2009. Despite that large increase, OPR was able to close 31% more investigations than it had in FY 2008 (77 compared to 59), and 5% more than it had in FY 2007 (79 compared to 75). In addition, OPR was able to close 44 % more inquiries than it had in FY 2008 (145 compared to 101), and 31% more than it had in FY 2007 (145 compared to 111). These statistics demonstrate OPR's improved efficiency in resolving allegations of professional misconduct. 4 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. s OPR finds that an attorney made a mistake when the attorney's conduct constituted excusable human error despite the exercise of reasonable care under the circumstances. 10 EFTA00212264 TABLE 3 W orkload Comparison Over Three Fiscal Years 160 :I 140 120 II iI 100 80 60 - 40 - 20 - 0 Investigations Investigations il Inquiries Opened Inquiries Closed Opened Closed •PY07 MST°, 0F109 New Complaints as P clot Previous Fiscal Year 35 30 25 20 IS 10 FY07 906 Complaints FY08 961 Complaints FY09 1254 Comp since 11 EFTA00212265  Examples of Investigations Closed in Fiscal Year 20096 1. Failure to Diligently Represent the Interests of the Client Failure to Abide by Court Rules. A DOJ component informed OPR that in two different cases a DOJ attorney failed to comply with bankruptcy court orders and with the local rules of the bankruptcy court. OPR conducted an investigation. In the first case, the government filed a civil complaint against the debtor. In the government's status report, the DOJ attorney notified the court that the debtor had failed to file an answer or other response to the complaint. Given this failure, the court directed the DOJ attorney at a status conference to promptly file a motion for default judgment against the debtor. The court continued the status conference. Despite the court's order, OPR found that the DOJ attorney failed to promptly file a motion for default judgment, failed to file a status report prior to the status conference in accordance with the local rule, and failed to appear at the status conference. As a result, the court issued an order to show cause directing the government to state why its complaint should not be dismissed for lack of prosecution. OPR found that the DOJ attorney failed to file a response to the order to show cause, and failed to file a status report prior to the third hearing in accordance with the local rule. Instead of filing a response to the order to show cause, the DOJ attorney filed a motion for default judgment on the day before the hearing. The court denied the motion on two grounds: (1) it contained insufficient evidence and legal authority upon which to grant the motion; and (2) the government failed to comply with the court's order to show cause. Based on these two grounds, the court dismissed the complaint for lack of prosecution. Upon the government's motion for reconsideration, the court reinstated the complaint and granted the default judgment. In the second case, the DOJ attorney filed a civil complaint against the debtor. At a status conference, the DOJ attorney told the court that she anticipated filing a motion for summary judgment within thirty days. The court did not itself set a due date for the motion for summary judgment. OPR found that after the hearing, the DOJ attorney told her supervisor that the court had ordered the government to file the motion for summary judgment by a certain date, when, in fact, it had not. 6 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 female pronouns in odd numbered examples and male pronouns in even numbered examples regardless of the actual gender of the individual involved. 12 EFTA00212266  As to the first case, OPR concluded that the DOJ attorney made a mistake when she failed to mark the date of the continued status conference in her calendar, which resulted in her failure to file a motion for default judgment, failure to file a status report, and caused her to miss the hearing. However, OPR concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligations to diligently represent her client and to comply with court orders and local rules when she failed to respond to the court's order to show cause and failed to file a status report prior to the third hearing. As to the second case, OPR concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligations to diligently represent her client and to comply with court orders and local rules when she failed to timely file a status report prior to the status hearing. OPR concluded further that the DOJ attorney committed professional misconduct by intentionally violating her obligation to keep the client reasonably informed when she misled her supervisor about the filing date for the motion for summary judgment. OPR did not recommend a range of discipline because the DOJ attorney retired before the investigation was completed. However, OPR notified the appropriate state bar authorities of its findings of professional misconduct in both cases. 2. Abuse of Prosecutive or Investigative Authority. A court of appeals reversed a criminal conviction of a state government official on the ground that the government had not proven every element of the statute. The decision prompted congressional and media allegations that the case had been brought for improper partisan political reasons. OPR conducted an investigation. OPR examined the legal authority as it existed at the time of the criminal investigation and concluded that there was sufficient legal precedent to support the government's theory of the prosecution; namely, that the defendant, in an effort to advance his career, steered a state contract to a firm whose principals donated significant amounts of cash to a state office candidate. OPR found no evidence that the decision to prosecute was influenced by improper partisan political considerations. OPR found that the case was initiated following a public outcry over the defendant's conduct. The case thus emanated from external factors. OPR found no evidence that the DOJ attorneys who prosecuted the case sought to gain personal or political advantage by bringing the case, and no evidence that political appointees at the Department influenced decisions relating to the investigation and prosecution. Accordingly, 13 EFTA00212267 OPR concluded that the DOJ attorneys who handled the case did not commit professional misconduct or exercise poor judgment in this matter. 3. Failure to Diligently Represent the Interest of the Client A DOJ component reported to OPR that a Department attorney had failed to timely respond to defense motions, had failed to timely indict cases, had failed to notify supervisors of untimely filed appellate briefs, and had failed to comply with internal deadlines and directions from supervisors. OPR initiated an investigation and reviewed a written response from the Department attorney and conducted interviews of the Department attorney and law enforcement agents. OPR also reviewed the relevant case files. During the course of OPR's investigation, supervisors at the DOJ component found additional matters that appeared to have been mishandled by the Department attorney. The Department attorney resigned from the Department prior to the completion of the OPR investigation. OPR recommended to the Office of the Deputy Attorney General that the investigation be closed without further investigation, on the grounds that (1) the matter lacked institutional significance to the Department, in that the attorney's conduct had not prejudiced the government in any of the cases; (2) the attorney had resigned, and thus could not face any disciplinary proceedings; and (3) continuing the investigation was not warranted given OPR's scarce resources. The Office of the Deputy Attorney General concurred and the matter was closed. 4. Duty of Competent Representation. A district court issued an order denying restitution to the government because the plea agreement prepared by the DOJ attorneys, and entered into by the government and the defendant, identified the wrong statute as authority for restitution. The district court's order was later overturned by the appellate court. OPR conducted an investigation. OPR found that by failing to draft the plea agreement in a manner that ensured that the government obtained restitution, the DOJ attorneys violated the fundamental duty to provide the client (the United States) with competent representation. Despite this violation, OPR concluded that the DOJ attorneys did not commit professional misconduct or exercise poor judgment because the error in the plea agreement represented an aberration from the high level of professional conduct exhibited by the attorneys throughout the rest of their work on the long and complex case. OPR found that the attorneys worked diligently for several years on the prosecution of the case, successfully 14 EFTA00212268 preparing hundreds of exemplary pleadings. Because the inaccurate citation in the plea agreement represented a marked departure from the DOJ attorneys' normal course of conduct, OPR found that this one-time error constituted an excusable mistake. 5. Duty of Competence. A court of appeals granted a petitioner's motion for costs and fees as the prevailing party under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), fmding that the government's position in an immigration case was not substantially justified. The court found that in contesting the petitioner's motion, the DOJ attorney made a legal argument that had been rejected by governing circuit law. Although the court did not sanction the attorney, it criticized her for making an argument that had been rejected. OPR conducted an investigation and found that the DOJ attorney violated her duty of competence when she presented a legal argument to the court that previously had been rejected by that circuit. OPR concluded, however, that the DOJ attorney did not intentionally commit professional misconduct because she did not know that the argument had been rejected. OPR also concluded that the DOJ attorney did not act in reckless disregard of her obligation of competence because the argument made in her brief was based on past briefs of recent vintage that had been filed in the same court on the same subject matter and reviewed by supervisors. OPR noted that the court, when ruling on the two prior briefs, did not mention that the argument had been rejected by the circuit. In fact, in one of the cases the court granted the government's motion. OPR also concluded that the DOJ attorney did not exercise poor judgment. OPR found that the attorney conducted a Westlaw search for recent, pertinent cases before she filed the government's response to the petitioner's motion. Although the DOJ attorney missed the new governing case, OPR determined that the parameters of the search were not unreasonable given the attorney's extremely heavy caseload. 6. Improper Closing Argument A court of appeals criticized a DOJ attorney for making inflammatory and emotionally provocative remarks during closing argument in a murder case. The DOJ attorney stated that the victim had been tortured and ended up in a cold grave, and described the shooting as horrific. Although the court found that the DOJ attorney's remarks were improper, the court affirmed the defendant's conviction because it found that the government's evidence against the defendant was overwhelming. OPR conducted an investigation and concluded that the DOJ attorney did not engage in professional misconduct or exercise poor judgment. OPR found that 15 EFTA00212269 the comments did not clearly and unambiguously violate the prohibition against making inflammatory appeals to the jury because governing case law recognized that evidence of deadly attacks did not have to be sanitized for the jury, and that such cases had an inherently emotional element. OPR found that several witnesses described the victim's slow and painful death in detail and, as such, there was abundant evidence at trial about the circumstances of the murder. Because the DOJ attorney's characterizations of the defendant's actions were based on the underlying facts, there was little likelihood that the attorney's remarks raised a risk of inflaming the jury. OPR found further that the DOJ attorney's comment about the victim having ended up in a cold grave was made in rebuttal argument in response to defense counsel's comments, and the attorney had little time to consider the appropriateness of the statement. Under these circumstances, OPR found that the DOJ attorney's comments did not reflect poor judgment because they were within the range of what the Department may reasonably expect an attorney exercising good judgment to make. 7. Discovery Violation. A district court found that a DOJ attorney failed to disclose exculpatory information during the death penalty phase of a Federal Death Penalty Act proceeding. The defendant pleaded guilty to killing a cell mate in a federal correctional facility. The investigation of the murder, which was conducted by the FBI, resulted in the preparation of several reports that suggested that the death of the inmate was accidental. The FBI reports were not produced to the defense during the guilt or penalty phases of trial. The reports first became known to the defense during cross-examination of the FBI agent during a post-conviction proceeding to set aside the death penalty conviction. The district court found that the reports contained exculpatory information that should have been disclosed during the penalty phase of the case and granted the defendant's post-conviction relief to set aside the death penalty conviction. OPR conducted an investigation and concluded that the DOJ attorney did not engage in professional misconduct, but exercised poor judgment when she failed to disclose the FBI reports to the defendant during the penalty phase of the case. OPR found that the information contained in the FBI reports was exculpatory because it went to the issue of whether the killing was a result of substantial planning and premeditation, an aggravating factor that must be established in death penalty verdicts under the Federal Death Penalty Act. Despite the exculpatory nature of the reports, OPR found that the DOJ attorney did not engage in professional misconduct because governing case law at the time of the penalty proceeding did not require the government to disclose exculpatory information that was either known to the defense or could readily be obtained by 16 EFTA00212270 the defense. Because the defense had access to the witnesses who were the subjects of the FBI reports, OPR found that the DOJ attorney did not violate a clear and unambiguous rule. Although OPR found that the DOJ attorney did not engage in professional misconduct, OPR concluded that the DOJ attorney exercised poor judgment. OPR found that in a death penalty proceeding where the defendant's life is at issue, a DOJ attorney exercising good judgment would, at a minimum, have disclosed the reports to the court for in camera review to determine whether the reports had to be produced. OPR referred its fmding of poor judgment to the DOJ attorney's employing component for consideration in a management context. 8. Violation of a Plea Agreement. A court of appeals found that a DOJ attorney violated a plea agreement by attacking the defendant's credibility during sentencing. OPR conducted an investigation and concluded that the DOJ attorney made an excusable mistake by responding to questions from the district court judge at sentencing regarding certain statements made by the defendant during sentencing. During sentencing the court asked the defendant about certain facts relating to the reason why the defendant traveled a long distance to the location of the drug transaction for which the defendant was charged and to which he pled guilty. The plea agreement contained a factual statement that varied from the statement made by the defendant during sentencing and, in response to questions from the court about the discrepancy, the DOJ attorney made comments that challenged the defendant's responses to the court. OPR noted that the defendant's attorney did not object to the comments made by the DOJ attorney at the time they were made at the sentencing. Because the language of the plea agreement was subject to several reasonable interpretations, OPR found that the DOJ attorney's conduct did not violate a clear and unambiguous obligation. OPR also noted that the DOJ attorney's comments about the defendant's credibility were made in direct response to the court's questions. For these reasons, OPR concluded that the DOJ attorney did not commit professional misconduct but made an excusable mistake. 9. Failure to Maintain Active Bar Membership. A DOJ component reported to OPR that a DOJ attorney had been practicing law without a license, in violation of the statutory requirement that Department attorneys maintain an active bar membership in at least one state at all times. 17 EFTA00212271  OPR conducted an investigation and found that the DOJ attorney had been practicing law without a license since 2003, following the suspension of her membership in the state bar for failing to comply with continuing legal education requirements. OPR found that the DOJ attorney had learned in 2004 that her bar license had been suspended, but took no steps to reinstate herself until her office learned in 2009 about the lapsed membership. OPR also found that between 2005 and 2008, the DOJ attorney certified to the Department on her annual Attorney Bar Re-Certification Forms, in which Department attorneys attest that they are active members of at least one state bar, that she was an active member of a state when she knew that she was not. OPR concluded that the DOJ attorney committed intentional professional misconduct by knowingly failing to maintain an active bar membership in any state bar, in violation of her statutory obligation and Department policy, for more than five years. OPR also concluded that the DOJ attorney committed intentional professional misconduct by knowingly certifying that she was an active member of a state bar, when she was not, in violation of the Department's bar certification requirement. The DOJ attorney was terminated from employment with the Department, and the appropriate state bar was notified of the results of OPR's investigation. OPR is cooperating with the state bar's investigation of the attorney. 10. Constitutional Violation. A district court dismissed the indictment of a foreign national who had been indicted on several counts of immigration fraud, including making false statements in his citizenship application. In dismissing the indictment, the court stated that the government engaged in deception by improperly using the defendant's naturalization interview to further a criminal case against the defendant. The court found that the naturalization interview had been a pretext for the government's criminal investigation. The government appealed the dismissal, and an appellate court later overturned the district court's findings. OPR conducted an investigation and concluded that the DOJ attorneys who were involved in the case did not engage in professional misconduct or exercise poor judgment. OPR found that during the course of parallel civil and criminal proceedings, the government may not: (1) affirmatively misrepresent the nature of the civil investigation, and (2) may not use the civil investigation solely as a pretext for a criminal investigation. OPR found that the DOJ attorneys did not make any affirmative misrepresentations to the defendant. OPR noted that the 18 EFTA00212272 defendant knew when he filed his naturalization application that any false statements made during the process exposed him to potential criminal charges. Specifically, the naturalization application cautions applicants that information they provide is furnished under penalty of perjury. In addition, after filing the form, an applicant must review the information with an adjudications officer and attest to the veracity of the information und