2015 Investigative Summary 6

Investigation of Alleged Discovery - Failure to Disclose Impeachment/Jencks Act Material; Failure to Keep the Client Informed; Failure to Comply with
DOJ Rules and Regulations

A DOJ component advised OPR that a DOJ attorney had been engaged in an intimate relationship with a law enforcement officer who was assigned to a task force investigating offenses that were prosecuted by the DOJ component and who was the case agent on a number of cases that were prosecuted by the DOJ attorney and other component attorneys. The DOJ attorney failed to disclose the relationship to her supervisors, the defense, and the court in cases she prosecuted in which the law enforcement officer was a possible trial witness. The DOJ component learned of the relationship between the DOJ attorney and the law enforcement officer after the cases they handled together had concluded. The DOJ component delivered an ex parte sealed letter disclosing the relationship to one of the district judges who had presided over a number of the cases; the judge concluded that the information need not be disclosed to the defense in the applicable cases.

OPR conducted an investigation and concluded that the DOJ attorney did not commit professional misconduct when she failed to disclose to the defense her relationship with the law enforcement officer, but that she exercised extremely poor judgment when she failed to disclose the relationship to the court in camera so that the court could make a determination as to whether the relationship should be disclosed in particular cases.

OPR further concluded that the DOJ attorney engaged in professional misconduct in violation of a state bar rule by acting in reckless disregard of her obligation to keep the DOJ component reasonably informed about the status of the matters she was handling, when she failed to disclose that she was involved in an intimate relationship with the law enforcement officer. Her failure to disclose the relationship precluded the DOJ component from making informed decisions with regard to the DOJ attorney's cases.

In particular, the DOJ component's management did not have the opportunity to consider the extent to which the relationship between the DOJ attorney and the law enforcement officer affected case assignments, the DOJ attorney's handling of cases, or the disclosure of impeachment information, as might be required by Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), the Jencks Act, Rule 16 of the Federal Rules of Criminal Procedure, and DOJ and component discovery policies.

Finally, OPR concluded that the DOJ attorney violated DOJ's de minimis use policy regarding the personal use of government equipment and resources when she communicated with the law enforcement officer in an excessive number of text messages on her government-issued cellular telephone.

OPR referred its findings to the PMRU, which upheld OPR's finding of professional misconduct, imposed a 3-day suspension without pay, and authorized OPR to refer its findings to the state bar. OPR referred its findings of professional misconduct to the appropriate state bar disciplinary authority.