Attorney General November 15, 1994 Memorandum on Procedures for Allegations of Misconduct by Justice Department Employees

November 15, 1994

MEMORANDUM FOR ALL COMPONENT HEADS

FROM: THE ATTORNEY GENERAL

SUBJECT: New Procedures Concerning Allegations of Misconduct by Department of Justice Employees

INTRODUCTION

Attached are two new documents setting forth policies and procedures for handling allegations of misconduct by Department of Justice employees: Attorney General Order No. 1931-94, defining the respective jurisdictions of the Department's Office of Professional Responsibility ("DOJ OPR") and Office of the Inspector General ("OIG"); and a U.S. Attorneys' Manual bluesheet, § 1-4.100, establishing procedures for reporting and handling misconduct allegations.

This memorandum summarizes the essential features of the attached documents. All supervisors should familiarize themselves with the details of these policies and procedures. You should also ensure that all of your employees are aware of their obligation to report misconduct.

ATTORNEY GENERAL ORDER

The new Order gives the Department's Office of Professional Responsibility ("DOJ OPR") the primary function of investigating "allegations of misconduct by Department attorneys that relate to the exercise of their authority to investigate, litigate or provide legal advice." The Order retains the authority of the Offices of Professional Responsibility of the Federal Bureau of Investigation ("FBI OPR") and Drug Enforcement Administration ("DEA OPR") to conduct internal investigations of their respective employees, but imposes new reporting requirements.

The Order gives the Office of the Inspector General ("OIG") authority to investigate other allegations of misconduct by any Department employee, or by any contractor, grantee, or other person doing business with or receiving benefits from the Department. Also, the Order imposes reciprocal reporting requirements with respect to cases involving the Department.

BLUESHEET

The new bluesheet, to be published in the U.S. Attorneys' Manual, § 1-4.100, sets forth procedures for reporting and handling allegations of misconduct by Department employees, including alleged professional responsibility violations by Department attorneys.

The previous Department policy on misconduct allegations, as set forth in the United States Attorneys' Manual, § 1-4.100, needed to be changed for three principal reasons. First, the policy pre-dated the establishment of the Office of the Inspector General, and required all reporting to the O£fice of Professional Responsibility. Second, the policy provided no standard for screening out frivolous allegations, no distinction among the types of allegations received, and no guidance about when to report allegations raised in judicial proceedings. Third, the policy advised supervisors to "take no further action on any allegation," ignoring our obligation to respond to allegations that arise in the course of judicial proceedings and take any appropriate action.

The new bluesheet, developed with input from all components of the Department, addresses all of these issues and sets forth detailed procedures for handling allegations of misconduct that arise in judicial proceedings.

The new bluesheet requires Department employees to report to their component head or appropriate supervisor "any evidence or non-frivolous allegation of misconduct that may be in violation of any law, rule, regulation, order, or applicable professional standard." It then requires the supervisor to evaluate whether the misconduct at issue is serious, and if so to report it to the appropriate investigative office. Supervisors should report to DOJ OPR any "evidence and non-frivolous allegations of serious misconduct by Department attorneys that relate to the exercise of their authority to investigate, litigate, or provide legal advice." Allegations against employees of the FBI and the DEA should be reported to, respectively, FBI OPR or DEA OPR. Other evidence and non-frivolous allegations of waste, fraud, abuse or other misconduct should be reported to OIG.

Reporting through the chain of command will ensure that supervisors are aware of any problems that may exist within their offices. Because some complainants may wish their identities kept confidential and some complaints may be very sensitive, however, the bluesheet provides that complaints may be made directly to an investigative office.

The bluesheet clarifies that the decision to report an allegation does not create any inference that the allegation is well-founded. This is an important reassurance to employees who are the subjects of unwarranted allegations of misconduct that their supervisors are obligated to report.

The bluesheet then addresses the handling of allegations that arise in the course of judicial proceedings. It requires attorneys to report to their supervisors any statement by a judge or magistrate indicating a belief that misconduct by a Department employee has occurred, or taking under submission a claim of misconduct. This is to ensure that supervisors are apprised contemporaneously of such allegations, regardless of merit, so that they can participate in the decisionmaking process. Supervisors also are required to report any evidence or nonfrivolous allegation of serious misconduct immediately to DOJ OPR, without awaiting a judicial resolution of the matter.

If a judge or magistrate actually makes a finding of misconduct or requests an inquiry into possible misconduct by a Department employee, this must be reported immediately to a supervisor and to DOJ OPR, regardless of merit. This will ensure that matters viewed as serious by the court are brought to the attention of OPR at the earliest possible time. The bluesheet also codifies the policy of expediting OPR's review of misconduct findings by or allegations from judges.

The bluesheet also addresses how to deal with litigation handled for the Department by an attorney who is the subject of a misconduct allegation raised in the litigation. The bluesheet provides that any pleading concerning a non-frivolous allegation of serious misconduct must be reviewed by a supervisor who is not implicated by the allegation. If an attorney is found to have engaged in misconduct, that attorney may not represent the United States in litigation about the finding unless approval is obtained from the component head. Additionally, the supervisor is obligated to apprise DOJ OPR of any significant developments in a matter that has been reported to DOJ OPR.

The bluesheet specifies certain procedures to be followed by DOJ OPR upon receiving an allegation. It provides that DOJ OPR must conduct a preliminary review, and will open an investigation only if it concludes that further investigation is warranted. This will reassure attorneys that the decision to report a frivolous allegation will have no adverse consequences. Upon completion of an investigation, the bluesheet provides that OPR will notify the subject, the supervisor, and the complainant.

Finally, the bluesheet provides that DOJ OPR will report to the appropriate disciplinary authorities when outside attorneys raise allegations against Department employees in bad faith. This policy reflects the Departmentts commitment to vigorously support its attorneys who are the targets of unwarranted allegations of misconduct and to deter such allegations.

Attachments:
Attorney General Order No. 1931-94
U.S. Attorneys' Manual bluesheet, § 1-4.100

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